Breaking from EEOC guidance and the opinion of most circuit courts, the Sixth Circuit found that employers can only be held liable for third-party harassment where the company intended for the harassment to occur.
In Bivens v. Zep, Inc., a sales representative alleged her employer should be liable for the harassment she faced by one of the company’s clients. She claimed that when visiting the client in his office, he locked the door and repeatedly asked her out on a date.
When workplace harassment is caused by a non-employee, courts typically use a negligence theory of liability. Under this standard, an employer may be held liable if the employer “knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”
The Sixth Circuit rejected this negligence theory and instead held that the plaintiff must show the employer intended for the third-party harassment to occur, either by showing the employer wanted the harassment to occur or was substantially certain that it would.