Employers in Michigan, Ohio, Kentucky and Tennessee take note:
Earlier this month, the Sixth Circuit Court of Appeals held that an employer can only be found liable for third-party harassment under Title VII if the employer intended for the harassment to occur. This is a significant departure from the approach taken by the EEOC and the majority of other federal appellate courts, which is a negligence-based standard.
The plaintiff, a sales representative, alleged that she was sexually harassed by a customer when she went to the customer’s workplace for a meeting. The plaintiff reported this to her supervisor, who reassigned that customer’s account to another sales representative. Later, the plaintiff’s employment was terminated as part of a reduction-in-force and sued the employer for sex-based hostile work environment harassment due to the customer’s conduct.
In an abrupt departure from historical interpretation of Title VII, the Sixth Circuit found that under Title VII, an employer could only be held liable for hostile work environment harassment by a non-employee if it intended for that harassment to occur. To establish the requisite intent, the court held that a plaintiff must show that the employer wanted to cause the harassment or was “substantially certain” that harassment would result from its actions.
Although this decision only impacts federal appeals of cases issued by Michigan, Ohio, Kentucky and Tennessee district courts, it may set the stage for other circuit courts to rule the same way. Regardless, employers in all states should continue to implement measures to prevent harassment in the workplace (whether by employees or non-employees) and take swift and appropriate action if it becomes aware of such conduct.
Check out the full decision here: 25a0214p-06.pdf