The Sixth Circuit recently split from six other courts, holding that employers must intend for third-party harassment to occur in order to be liable under Title VII of the Civil Rights Act of 1964. The panel relied on the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo to disregard an EEOC regulations that focused on the inquiry on employer negligence instead of intent.
The case involved a Black sales representative for Zep Inc., who the cleaning products manufacturer terminated during a company-wide reduction in force. Before her discharge, the worker reported to her supervisor that a Zep client locked her in his office and indicated that they could date. The supervisor then reassigned the client to another sales team. The worker ultimately sued over alleged third-party harassment and other claims under Title VII and Michigan law. The Sixth Circuit panel found no evidence that Zep intended for the client to harass the worker and that Zep had no control over the client, meaning the client wasn’t acting as an agent of the company.