Last month, the United States Supreme Court declined a petition for certiorari filed by Dorthy Bivens following a decision from the Sixth Circuit in Bivens v. Zep Inc., 147 F.4th 635 (2025). Bivens, a former sales representative for Zep Inc. (“Zep”) who was terminated, asserted claims under Title VII and Michigan law for hostile work environment, retaliation and discrimination after she was allegedly harassed by a manager with one of Zep’s clients.
Bivens alleged that the manager locked the door of his office and asked her on a date, which she refused. After Bivens described the events to her supervisor, her supervisor reassigned the client to another sales team so Bivens would no longer have to interact with the client. Around that time, Zep was looking to cut costs due to issues that arose because of the COVID-19 pandemic, and Bivens was a part of a reduction in force along with 22 other employees.
Zep filed for summary judgment, which the district court granted. Bivens appealed. The Sixth Circuit acknowledged that employers can be directly liable for certain official actions, such as conduct by owners and corporate offices. However, it distinguished conduct by actors at lower levels of the organization and noted that whether a company can be vicariously liable in such an instance depends on the nature of the actor’s role within the company. The Sixth Circuit framed the issue in the case as “When, if ever, is an employer liable—either directly or vicariously—for the harassment of an employee by a non-employee?”
The Sixth Circuit found that, with no legal bridge between the client’s intent and Zep’s responsibility, Zep could only be held liable for its own intentional actions. Thus, Bivens needed to show that Zep intended for the relevant unlawful consequence – the alleged harassment. The Court found that Bivens needed to produce evidence that Zep either desired to cause her harassment or was substantially certain that it would result from its actions. However, Bivens failed to meet her burden.
The Sixth Circuit also noted that its conclusion departed from most circuit courts that have addressed the issue, as well as the EEOC’s reading of Title VII, finding the EEOC interpretive guidelines have no controlling effect on courts. However, the Sixth Circuit stated it did not “lose any sleep” over standing nearly alone in its conclusion, acknowledging that every other circuit other than the Seventh Circuit has applied some form of a negligence theory of liability to the harassing acts of customers. The Ninth Circuit, where California sits, has held that employers may be liable for harassment on the part of a private individual where the employer either ratifies or acquiesces in the harassment by not taking immediate or corrective actions when it knew or should have known of the conduct. See, e.g. Folkerson v. Circus Circus Enterprises, Inc., 107 F.3d 754, 756 (1997).
In her certiorari petition, Bivens asked SCOTUS to consider whether the negligence standard in 10 circuits that has applied to Title VII harassment claims by a coworker should extend to harassment by customers, or whether the Sixth Circuit’s “novel” stance should win the day. However, SCOTUS declined Bivens’ petition.
The Sixth Circuit’s approach to the case reflects a disciplined adherence to Title VII, with a focus on employer intent that targets conduct that is fairly attributable to the employer. The approach preserves the statutory distinction between illegal employment practices and unfortunate, but extrinsic, acts of non-employees over whom employers often lack meaningful control. The Bivens decision and the Sixth Circuit’s willingness to stand apart underscores an important point – agency interpretation and inter-circuit consensus cannot override statutory text and principles of vicarious liability. The Supreme Court’s refusal to grant certiorari may signal that the Sixth Circuit’s narrower view falls within the permissible range of interpretations under Tile VII.
