Sixth Circuit Departs from EEOC and Other Circuits on Employer Liability Standard for Third

On August 8, 2025, a Sixth Circuit panel in Bivens v. Zep, Inc. held that an employer can only be found liable under Title VII for harassment by a third party if the employer intended for the harassment to occur. This represents a significant departure from the approach taken by the Equal Employment Opportunity Commission (EEOC) and the majority of federal appellate courts, which apply a negligence standard.

Background

The plaintiff, an outside sales representative for Zep, Inc., alleged that she was sexually harassed by a customer of Zep, a motel. According to plaintiff, when she stepped into the motel manager’s office, he locked the door behind her and propositioned her. After she reported the incident, Zep reassigned the account to another sales representative but later included p