Dorothy Bivens worked as a sales rep for Zep, Inc. A few months into the job, she visited a motel client. The client's manager locked his office door, asked her out twice, and only let her leave when she said no. She reported it to her supervisor, who reassigned the account so she'd never have to see that customer again. A short time later, Zep cut her position in a COVID-era reduction in force. She then sued for hostile work environment, retaliation, and race discrimination.
The 6th Circuit just tossed all her claims. The retaliation and race claims fell apart for lack of proof the decision-makers knew about her complaint or targeted her for her race. But the headline here is the harassment claim.
Virtually all other courts and the EEOC say an employer is liable for harassment by a customer if it knew or should have known about it and failed to act. That's the negligence standard as for co-worker harassment. The 6th Circuit, however rejected that approach entirely for claims of harassment-by-customer. It held that for customer harassment, an employer is only liable if it intended for the harassment to happen, or was "substantially certain" it would. In other words, unless the employer practically set it up, there's no liability.
That's… just… wrong. Really, really wrong.
It ignores the reality that employers control the work environment and have a duty to protect employees from any harassment they know or should know about, regardless of who commits it. And it creates a loophole. As long as the harasser isn't on your payroll, you can look the other way. That’s not how you build a safe workplace, or how every other court reads Title VII.
My strong suggestion to employers: Don't take this case as a green light to slack off. If a customer harasses your employee, treat it exactly the same way you would if it were a co-worker. Investigate promptly. Take immediate and effective action to stop it. Remove the employee from the situation, and deal with the customer (including ending the business relationship if needed). Document everything. Not only is it the right thing to do, but it will also keep you out of trouble in the majority of jurisdictions that still apply the negligence standard. It will also protect your employees, which is the whole point.