Sixth Circuit's Higher Standard for Employer Liability

By McKenzie Meade - Lehr Middlebrooks Vreeland & Thompson, P.C.

In Bivens v. Zep, Inc . , the Sixth Circuit Court of Appeals (which hears appeals from federal courts in Kentucky, Michigan, Ohio, and Tennessee) established a new, higher standard for holding employers liable for harassment committed by third party, non-employees. The main question analyzed was: “ When, if ever, is an employer liable—either directly or vicariously—for the harassment of an employee by a non-employee ?”

The plaintiff, Dorothy Bivens, contended a business customer had locked her in his office and asked her on a date. Bivens refused the customer’s invitation and ended the conversation. Bivens reported the incident to her supervisor, who reassigned the customer to another sales team so she wouldn’t have t