EMPLOYER ALERT: Appellate Court Breaks New Ground Limiting Employer Liability in Non-Employee Harassment Cases

The Sixth Circuit Court of Appeals recently held that an employer is only liable for client (i.e., non-employee) harassment where an employee proves the employer intended the harassment to occur.

This is a welcome, well-reasoned departure from prior rulings in most other federal circuits, including the Eighth Circuit Court of Appeals (which is the federal appeals court overseeing courts in Missouri and other states). Those other courts have largely adopted or followed the principle that employers can be liable for harassment of an employee by a non-employee, such as a client of the company, if the employer knew or should have known of the conduct and failed to correct or prevent it.

The Sixth Circuit case at issue—Bivens v. Zep, Inc.—was recently decided on August 8, 2025.  At its heart, the decision reiterated the basic principle that Title VII disparate treatment claims fundamentally concern intentional discrimination by an employer.

The appeals court acknowledged that many other circuits (and the EEOC) had followed and/or supported the above-stated negligence standard (i.e., liability based upon what an employer knew or should have known) instead, yet still disagreed, emphasizing the court’s duty to independently interpret statutes under recent Supreme Court precedent. Indeed, the Court explicitly stated it was not losing “any sleep over standing nearly alone in this conclusion.”

Time will tell whether other Circuits agree with the Sixth Circuit; however, in the interim, the decision presents a persuasive blueprint by which employers can resist attempts of employees to hold them legally liable for actions of third parties such as clients.

Stay tuned for further developments in this ever-evolving space.