08-19-2025
Dorothy Bivens lost her job as a sales representative for Zep, Inc. during a company-wide reduction-in-force. Shortly before her firing, Bivens made a sales call on a Zep client. The client locked Bivens in his office and asked for a date. She declined. Bivens reported the incident to her supervisor when she returned to work. The supervisor reassigned the client to another salesperson. After her job was terminated, Bivens sued for a hostile work environment, harassment, retaliation, and discrimination.
Historically, the EEOC has evaluated employer liability under Title VII for third-party harassment under a negligence theory. Under that theory, if an employer “knows or should have known” about the conduct and “fails to take immediate and appropriate corrective action,” that employer may be liable for third-party harassment of its employees. Essentially, all of the circuit courts have adhered to this standard.
However, the Sixth Circuit Court of Appeals has concluded that the question of liability must be determined using the “agency” theory. Under this theory, Zep (master) and the client (agent) had to give their “mutual consent” that the client would “act” on behalf of Zep and subject to its control. Zep and the client did not reach that agreement. Thus, the court cannot impose the client’s wrongful intent on Zep. The company can be held liable only for its own intentional actions. For Bivens to prevail on her claim, she had to show that Zep intended for the hostile-work-environment harassment by a customer to happen, e.g., Bivens could submit evidence that Zep wanted to cause her harassment or was “substantially certain” that harassment would result from its actions.