A Tale of Two Standards: Supreme Court Lets Conflicting Rules on Third-Party Harassment Stand
The Supreme Court of the United States recently denied certiorari in Bivens v. Zep, Inc. , leaving in place a stark circuit split on the standard for employer liability when customers or other third parties harass employees. 00:00 24:53 Quick Hits The Supreme Court left intact the Sixth Circuit’s intent-based standard for employer liability for third-party harassment. The Sixth Circuit’s ruling diverges sharply from the EEOC’s position, as well as that of almost all other circuits to address the issue. Employers in Kentucky, Michigan, Ohio, and Tennessee continue to benefit from the higher bar for employer liability set by the Sixth Circuit, while employers in most other jurisdictions remain subject to a more employee-friendly standard. Background In Bivens v. Zep Inc . , the Sixth Circuit held that an employer can be liable for customer harassment only if it intended for the harassment to occur or was willfully indifferent to it. In its decision, the Sixth Circuit rejected ...