Introduction
The Sixth Circuit recently issued a decision in Bivens v. Zep, Inc., 147 F.4th 635, 643 (6th Cir. 2025), that marks a significant shift in how courts in this circuit should assess employer liability for harassment committed by non-employees such as customers. The ruling departs from the long-standing negligence standard used by other circuits and the EEOC, replacing it with a much higher “intent or substantial certainty” standard. For employers in the Sixth Circuit (Ohio, Michigan, Kentucky, and Tennessee), this case offers a more favorable framework for defending against claims based on customer (or other non-employee) misconduct.

Case Background
Plaintiff Dorothy Bivens (“Bivens”) worked as a territory sales representative for Zep, Inc. (“Zep”), a manufacturer and distributor of cleaning products. During a sales call at a motel, Zep’s customer—the motel manager—locked the door of his office behind her and asked if she would date him. Bivens refused, asked to leave, and later reported the incident to her supervisor. Zep promptly reassigned that customer to another sales team so Bivens would not have further contact.

Around the same time, Zep conducted a reduction in force (RIF) that eliminated positions in territories below certain revenue thresholds. Bivens’s territory was among those cut, and her employment ended as part of that RIF. She then sued, asserting hostile work environment, retaliation, and race discrimination claims under Title VII and Michigan law. The district court granted Zep summary judgment on all claims, and Bivens appealed.

The Holding
The central issue before the Sixth Circuit was “[w]hen, if ever, is an employer liable—either directly or vicariously—for the harassment of an employee by a non-employee?” Bivens, 147 F.4th at 643. Relying on the fact that the client who harassed Bivens was not Zep’s agent, the Court first held that Zep could not be vicariously liable for the sexual harassment of its employee by a customer. Id. at 646-645 (citing EEOC v. Costco Wholesale Corp., 903 F.3d 618, 627 (7th Cir. 2018)).

Having made that conclusion, the Court explained: “That leaves only one possibility for Bivens: holding Zep directly liable for its own actions.” Id. at 645 (emphasis in original). And—the Sixth Circuit proceeded—the correct standard for making that determination is to assess whether Zep itself intended for the harassment at the hands of the client to occur. Id. “‘Intent’ … is present when an actor ‘desires’ an unlawful consequence from his actions or is ‘substantially certain’ that it will result.” Id. (citing Staub v. Proctor Hosp., 562 U.S. 411, 422 n.3 (2011)).

In making this determination, the Sixth Circuit expressly declined to follow the EEOC and other circuits’ long-standing view that liability arises if the employer “knew or should have known” about non-employee harassment and failed to act reasonably. Id. at 645-646. Indeed, the Court expressed the judges on the panel did not “lose any sleep over standing alone in this conclusion.” Id. at 646.

Applying this newly-defined framework to Bivens’ case, the Court held that Bivens’ hostile work environment claim failed because there was no evidence from which a jury could conclude that Zep intended or was substantially certain that the motel manager’s conduct would occur. Id. at 648.

Bivens’ Implications and Key Takeaways for Employers
This ruling is significant because it raises the bar for plaintiffs bringing harassment claims based on customer or vendor misconduct in the Sixth Circuit. Rather than showing that an employer was negligent in responding, a plaintiff must now prove the employer essentially desired or knowingly accepted the harassment. That is a far more difficult standard to meet.

Bivens v. Zep, Inc. represents a notable and welcome shift in tone compared to recent Supreme Court decisions which have generally expanded employee protections and made Title VII claims more difficult for employers to defend. See e.g. Muldrow v. City of St. Louis, 601 U.S. 346 (2024) (lowering the threshold for plaintiff to prove an adverse employment action); Groff v. DeJoy, 600 U.S 447 (2023) (significantly heightening employers’ burden to deny religious accommodations). Against that backdrop, Bivens v. Zep, Inc. stands out as a relatively rare employer-friendly decision, narrowing potential liability for non-employee harassment and raising the evidentiary burden for plaintiffs. 

While Bivens v. Zep, Inc. offers relief, employers should not become complacent. Swift, thoughtful, and well-documented responses remain the best defense. The decision highlights several key action points:

• Policies should expressly cover harassment by customers, clients, and vendors, and outline reporting procedures.
• Immediate action, such as reassigning accounts or limiting exposure to the harasser, remains critical both for employee morale and legal defense.
• Written records of reports, investigations, and remedial steps are essential in demonstrating the absence of intent or substantial certainty.
• Other circuits still apply the negligence standard, and state civil rights laws may impose broader liability. Employers with multi-state operations should tailor compliance accordingly.
• While Bivens limits harassment liability, retaliation claims remain robust. Employers must carefully document legitimate reasons for discipline, RIFs, or terminations following a harassment complaint.

If you have questions about this decision or need guidance on how it may affect your workplace policies and practices, please reach out to our Labor and Employment Department.