Sixth Circuit Raises the Bar for Customer Harassment Claims. Florida Employers Still Face a Negligence Rule

On August 8, 2025, the Sixth Circuit decided Bivens v. Zep, Inc., holding that an employer can be liable for harassment by a nonemployee only if the employer intended the harassment or was substantially certain it would result from the employer’s own actions. Negligence is not enough under that court’s approach.

What the Sixth Circuit decided

The panel framed Title VII as an intentional discrimination statute and applied agency law to explain why vicarious liability does not extend to customers and other third parties who are not the employer’s agents. As a result, the only viable route to employer liability for a customer’s misconduct within the Sixth Circuit is direct liability based on the employer’s own intent or substantial certainty. The court also signaled that EEOC guidance does not control statutory interpretation after Loper Bright.

What controls in Florida

Florida employers are in the Eleventh Circuit. The Eleventh Circuit has long applied a negligence standard for harassment by customers or other nonemployees. An employer may be liable if it knew or should have known about the harassment and failed to take immediate and appropriate corrective action. That is the rule articulated in Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 to 60 (11th Cir. 2003). Florida courts interpret the Florida Civil Rights Act in conformity with Title VII, so this Eleventh Circuit standard governs FCRA cases as well.

Why the Sixth Circuit decision still matters here

Multistate employers will face different liability standards depending on where claims arise. Operations in Kentucky, Michigan, Ohio, and Tennessee fall under Bivens. Florida sites remain under Watson. Litigants in Florida should expect plaintiffs to rely on Watson and defendants to cite Bivens as a persuasive authority, urging courts to reexamine negligence theories for nonemployee harassment after Loper Bright.

Practical steps for Florida employers

• State in policy that third parties, including customers, clients, patients, and on‑site vendors, must comply with the company’s harassment standards.

• Train managers and front‑line staff to recognize, document, and promptly escalate third‑party misconduct.

• Use contract language that requires vendors to remove offending individuals on request and to cooperate in investigations.

• After any report, take immediate and appropriate corrective action and document every step, since the Eleventh Circuit’s negligence rule turns on what the employer knew or should have known and what it did in response.