A federal appeals court opted to apply a more employer-friendly standard for determining employer liability in cases of harassment by a non-employee third party. Breaking from EEOC guidance and most circuit courts, the U.S. Court of Appeals for the Sixth Circuit held August 8 in Bivens v. Zep that employers can be held liable for third-party harassment only where the company intended for the harassment to occur.
The case involved a sales representative who claimed that a company client locked her in his office and repeatedly asked her for a date. The sales rep alleged that her employer should be liable for the client’s harassment.
Courts typically use a negligence theory of liability when a non-employee causes workplace harassment. The Sixth Circuit instead held that the employee must show that the employer wanted the harassment to occur or that the employer was substantially certain that it would. This standard will make it more difficult for an employee to win a third-party harassment claim against an employer.
Members of the Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, can read more here. Both members and non-members can register for CWC’s Navigating the Reasonable Accommodation Process course.