Court Limited Employer Liability for Third-Party Harassment
Employers in the 6th Circuit now face a higher threshold when defending against claims of harassment by non-employees.
Updated on Sept. 30, 2026 in Human Resources
Live Poll
Should employers be legally liable for workplace harassment committed by their customers or clients?
The 6th US Circuit Court of Appeals ruled on August 8, 2026, that employers are only liable for third-party harassment if they specifically intended for the behavior to occur. This decision rejects the negligence standard previously used to evaluate workplace harassment claims involving non-employees.
Why it matters
This ruling establishes a more stringent intent-based standard for employer liability in Kentucky, Michigan, Ohio, and Tennessee. Operators in these states face a significant shift in legal exposure, as plaintiffs must now prove employer intent rather than simple negligence regarding non-employee conduct.
The 6th Circuit ruling affects all businesses across Kentucky, Michigan, Ohio, and Tennessee, following a case where Zep, Inc. eliminated 23 sales positions in 2021. The court's decision creates a direct conflict with other federal courts that continue to apply a negligence standard.
The players
6th US Circuit Court of Appeals
The federal appellate court with jurisdiction over Kentucky, Michigan, Ohio, and Tennessee.
Zep, Inc.
A specialty chemical manufacturer and maintenance product provider that operates across industrial and institutional sectors.
Dorothy Bivens
A former sales representative who initiated litigation regarding hostile work environment and retaliation claims.
The details
The court's decision requires employees to prove that an employer intended for third-party harassment to happen, rather than merely proving the employer failed to address it negligently. This mechanism effectively raises the burden of proof for plaintiffs in cases like the one brought by former Zep, Inc. sales representative Dorothy Bivens. When harassment is reported, businesses typically follow internal protocols, such as the reassignment of clients to different teams, as a protective measure against these legal claims.
Timeline
2021: Dorothy Bivens worked as a sales representative for Zep.
August 8, 2026: The 6th Circuit Court of Appeals issued its ruling.
Market Landscape
This decision creates a significant legal split between the 6th Circuit and other federal jurisdictions regarding the interpretation of Title VII. By setting an intent-based requirement, the court departs from the negligence standard typically applied in workplace harassment disputes.
Operators in the affected four-state region should consult with qualified counsel to evaluate if current harassment reporting and response workflows meet this new evidentiary standard. While the ruling narrows liability, internal investigation documentation remains critical to proving intent was absent.
The takeaway
The 6th Circuit has significantly altered the legal landscape for employers by requiring proof of intent in third-party harassment cases. Review existing harassment policy language with legal counsel to ensure that response procedures for non-employee incidents are robust and well-documented.
Further reading
For more on managing workplace conduct and legal exposures, visit the Human Resources section.
Source note: This article includes information reported by Hotel News Resource.
Live Poll
Should employers be legally liable for workplace harassment committed by their customers or clients?
