In Bivens v. Zep, 6th Cir., No. 24-2109 (August 8, 2025) the U.S. Court of Appeals for the Sixth Circuit addressed the question of when an employer may be legally responsible for harassment of its employees by a nonemployee. The court said if the accused is not an “agent” of the employer, it comes down to intent. More specifically, the court held that an employer can be held liable for harassment by a nonagent only if the employer intended for the harassment to occur.

Some commentators have described Bivens as creating a new and strong defense to harassment claims any time the alleged harasser is a client or customer. Others have described the Sixth Circuit’s standard as making it nearly impossible for plaintiffs to hold employers to account when the bad actor is not on the payroll. Those interpretations are flawed for the reasons discussed below. Moreover, those interpretations risk lulling employers into a false sense of security when it comes to harassment by nonemployees, when the reality is anything but risk-free.

Case Background

The plaintiff in Bivens worked as an outside sales representative for the defendant, a manufacturer and distributor of cleaning products. She alleged that during what was supposed to be a sales visit to a motel client, the motel manager locked her in his office, stared at her and invited her on a date. After she declined the invitation and asked to leave, the encounter ended. The plaintiff reported the incident to her supervisor. The supervisor reassigned the client to another sales team in an effort to stop future interactions between her and the motel manager.

In the plaintiff’s lawsuit, she alleged that the actions of the client’s employee caused her to experience a hostile work environment. She argued that the employer did not do enough to address known harassment, contrary to its legal obligations.

At the district court level, the employer filed a motion to dismiss the plaintiff’s harassment claims on summary judgment after discovery closed. The district court granted the motion, using a negligence standard of corporate liability to dismiss the plaintiff’s claims. The plaintiff appealed.

The Sixth Circuit's New Standard

The Sixth Circuit affirmed the dismissal of the plaintiff’s harassment claims, but on different grounds. The appellate court examined the Title VII statute to determine when the actions of a non-employee may result in liability for the employer. Noting that Title VII defines an “employer” to include “any agent,” the court reasoned that principles of agency law are baked into the statutory framework.

Applying agency law, the Sixth Circuit articulated an intent-based standard of corporate liability: To hold an employer liable for harassing conduct by a non-agent, the plaintiff must show the employer desired to cause the harassment or was substantially certain that harassment would result. A core premise of the standard is the absence of an agency relationship between the employer and the accused.

The Sixth Circuit then examined the facts surrounding the relationship between the defendant employer and the motel manager. Under the facts, the motel manager was not the defendant’s agent. Finding the accused harasser to be a non-agent, the court then employed its new intent-based standard. The court held no jury could find that the employer desired for the unwanted interaction to occur or acted with substantial certainty that it would occur. Thus, there was no basis to hold the defendant liable for the motel manager’s actions toward the plaintiff.

The Sixth Circuit affirmed the dismissal of the plaintiff’s harassment claims under Title VII. Reasoning that Title VII and Michigan law use the same standards of liability, the court also upheld the district court’s dismissal of the plaintiff’s harassment claims under Michigan law.

Scope of the Ruling

While the Bivens case provides a strong defense to harassment claims involving nonemployees, it is, at least for now, limited to the Sixth Circuit. And in the Sixth Circuit, it applies only to claims involving non-agents—and who is an “agent” is a highly fact-specific determination. Further, it is far from clear that the states in the Sixth Circuit (Michigan, Tennessee, Ohio and Kentucky), let alone states outside the circuit, will adopt the intent standard under their state laws.

What is clear is that most other circuit courts that have ruled on this issue have applied a negligence standard of employer liability, i.e., the First, Second, Eighth, Ninth, Tenth and Eleventh. It is far easier for an employee to prevail on a harassment claim when the negligence standard applies.

What Does This Mean for Employers?

The bottom line is that the Bivens standard is an argument for an employer in litigation in the Sixth Circuit and perhaps those circuits that do not have contrary standards. It is not the basis for employers to be lax when it comes to harassment by nonemployees.

To the contrary, employers need to grapple with an increase in the number and visibility of claims of harassment by nonemployees, whether they be students, patients, customers, patrons, residents, vendor representatives or other business partners.

Employers should consider taking the following actions to manage the risk of harassment claims involving non-employees:

• Ensure your anti-harassment policy makes clear that prohibitions against harassment and other inappropriate conduct in the workplace extend to nonemployees with whom employees may interact in the course of their duties.
• Make sure your complaint procedure addresses the conduct of employees and nonemployees alike. Employees should know how to report conduct of third parties, and management should know how to elevate reports that come to their attention.
• Train your managers and other employees on how to recognize and respond to incidents of inappropriate conduct by nonemployees.
• Recognize that employees may hesitate to report misconduct of customers and clients whose business is critical to the employer’s bottom line and build strong anti-retaliation protections to combat that perception.
• When your investigation uncovers conduct in violation of your policy, take prompt action appropriate to the circumstances to address it and prevent recurrence. In more extreme cases, this may mean ending a relationship with a customer, client or business partner.

These are but a few examples of the reasonable steps employers may take to protect employees from harassment by third parties in the course of their work. Employers may want to consult with their counsel on what steps may be appropriate in the context of their industry and organization.

Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.