A former sales representative for cleaning products manufacturer Zep, Inc., cannot proceed on her Title VII harassment claim related to the behavior of a client because she could not show the company intended for it to occur, the 6th U.S. Circuit Court of Appeals ruled Aug. 8.
According to the opinion in Bivens v. Zep, Inc., while the sales rep was visiting a Zep client motel, a manager locked her in an office and asked if they could date. She said no, left the situation and later reported the events to her supervisor, who reassigned the client to another team.
Around the same time, the sales rep was terminated, allegedly as a part of planned head count reduction related to poor economic performance. The sales rep then sued the company, alleging she was subjected to harassment, retaliation and discrimination based on her complaint about the client or because she is Black.
A lower court dismissed her claims, and the rep appealed.
The 6th Circuit affirmed the lower court’s ruling and took the opportunity to evaluate an employer’s liability when it comes to harassment at the hands of a client, rather than an employee, of a company.
6th Circuit breaks from EEOC, sister circuits
Because the client who harassed the sales rep was not an agent of Zep, the company would only be liable if it intended for her harassment to occur, the court said.
“[W]e note that our holding departs from the conclusion reached by most circuit courts to have addressed the issue as well as the EEOC’s reading of Title VII,” the 6th Circuit said.
In harassment guidance issued last year, the U.S. Equal Employment Opportunity Commission determined that an employer could be liable for a hostile work environment created by nonemployees if it was negligent — if it either “unreasonably failed to prevent the harassment” or “failed to take reasonable corrective action in response to harassment about which it knew or should have known.”
Citing the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, Secretary of Commerce — which allowed courts greater latitude to diverge from agency interpretations of the law — the 6th Circuit said it did not find EEOC’s reading persuasive.
“Having interpreted Title VII ourselves, we conclude, unlike the EEOC, that it imposes liability for non-employee harassment only where the employer intends for the harassment to occur,” the court said.
The 6th Circuit added it did not “lose any sleep over standing nearly alone in this conclusion” — noting the 1st, 2nd, 8th, 9th, 10th, and 11th Circuits have all applied a “negligence theory of liability” to customer harassment — because these courts either deferred to EEOC or engaged in what “often seems like judicial policymaking.” Only the 7th Circuit has reached the same conclusion, the Bivens court said.
The sales rep’s other claims also failed, the 6th Circuit found, because those making the termination decision did not know of the harassment, and because most other employees who were laid off were White.
The 6th Circuit has jurisdiction over Kentucky, Michigan, Ohio and Tennessee.
