Sexual harassment by a customer

Sexual harassment by a customer got a dramatically different analysis by the 6th Circuit in Bivens v. Zep (6th Cir 08/08/2025) [PDF], rejecting the long-standing approach by the EEOC and other Circuit courts.

Dorothy Bivens was harassed by a customer. She wanted to hold her employer liable. The court held that in order to do so she needed to prove the employer’s intent—not mere negligence.

The customer was not the employer's agent, and there was no showing that the employer intended harassment to occur.

The 6th Circuit is an outlier on this issue, but you can bet that employers will urge this approach in other jurisdictions.