KHVPF Insight
Sixth Circuit Departs from Fellow Courts on Customer Harassment
As this issue was going to press, the Sixth Circuit decided Bivens v. Zep, Inc., sharply limiting employer liability for harassment by customers. In that case, Zep sales representative Dorothy Bivens alleged that Zep’s client sexually harassed her during a sales visit. She sued her employer for a hostile work environment under Title VII and Michigan’s ELCRA.
The Sixth Circuit rejected her claims, holding that an employer is liable for customer harassment only if it intended or was substantially certain that harassment would occur, and not merely for being negligent in preventing the harassment. It applied the same rule to ELCRA. The Court acknowledged that its ruling was a stark departure from other federal appeals courts, which apply a negligence standard.
While significant, Bivens should not be read as blanket protection. Given the circuit split, Supreme Court review is likely. Most states outside the Sixth Circuit still apply a negligence standard. And Michigan courts are not bound by Zep and may disagree. Employers should continue to maintain and enforce policies addressing customer harassment, including clear reporting procedures and proactive measures to address reported misconduct by customers.