*Macy Hamlett
I. Introduction
The Sixth Circuit recently decided in Bivens v. Zep, Inc. that an employer cannot be held liable for third-party actions under Title VII of the Civil Rights Act of 1964 unless they “‘intend[ed]’ for the relevant unlawful ‘consequence.’”[1] The Bivens decision creates a new obstacle for employees to hold their employers accountable for harassment by third parties.[2] While the Bivens decision seems to come out of thin air, two recent Supreme Court decisions have teed up this outcome to suggest otherwise.[3] In 2020, the Supreme Court decided Bostock v. Clayton County, which emphasized the intent of employers under Title VII.[4] Then in 2024, the Supreme Court decided Loper Bright Enterprises v. Raimondo, which empowered Biven’s reinforcement of the Equal Employment Opportunity Commissions (“EEOC”) limited interpretive authority over Title VII.[5] Bostock emphasized that when an employer intentionally treats an employee worse because of their membership in a protected class, Title VII is violated.[6] Further, Loper Bright highlighted that agency interpretations of statutes, such as those by the EEOC, should no longer be treated with deference.[7] Combined, these decisions laid the foundation for the Sixth Circuit’s rationale in Bivens.[8]
II. The Supreme Court Decisions
A. Bostock v. Clayton County
In Bostock, the Court granted certiorari to consider the scope of Title VII’s protections in three separate cases of transgender and sexual orientation discrimination.[9] Each case involved a similar pattern: an employer fired an employee shortly after they revealed they were a member of the LGBTQ+ community, with no other reason for the termination.[10] Gerald Bostock, who worked for nearly a decade as an award-winning child welfare advocate for Clayton County, Georgia, was fired after participating in a gay softball league.[11] Donald Zarda, a skydiving instructor at Altitude Express in New York, was fired days after mentioning he was gay.[12] Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Michigan and, in her sixth year, wrote a letter to her employer informing them of her decision to transition to identify with another gender upon returning from vacation; she was fired before she could return to work.[13]
A circuit split ensued, leaving the Court to resolve the different outcomes.[14] The Eleventh Circuit diverged from the Second and Sixth Circuits on the scope of Title VII’s protections.[15] The Supreme Court held that the “ordinary public meaning” of Title VII’s language indicates that “because of [sex]” requires an employer to intentionally make an employment decision based on an employee’s sex—like sexual orientation.[16] While the Court felt its “straightforward rule” did not need further explanation,[17] it proceeded to cite various cases supporting its conclusion.[18] The Bostock v. Clayton County decision made clear that “because of sex” requires a plaintiff to show the employer’s intent.[19] Despite this, the EEOC has applied the negligence standard to Title VII provisions and, until recently, courts believed they were required to follow it.[20]
B. Loper Bright Enterprises v. Raimondo
In Loper Bright, the Supreme Court overruled Chevron, USA, Inc. v. Natural Resources Defense Council, Inc.’s forty-year-old precedent.[21] Under Chevron, courts were “required [] to defer to ‘permissible’ agency interpretations of the statutes those agencies administer—even when a reviewing court reads the statute differently.”[22] In Loper Bright, the District of Columbia Circuit affirmed the lower court’s decision to defer to an agency interpretation.[23]The Court stated Chevron has long been misguided because agencies have no “special competence” and failed to consider the APA—a federal regulation that permits the judiciary to interpret statutes independently.[24] Like many other recent decisions, the Court noted stare decisisdid not require it to continue upholding Chevron.[25] The decision made clear that courts can (and should) perform an independent review of statutes even if an agency has already interpreted them.[26]
III. The Sixth Circuit’s Decision
With Bostock and Loper Bright laying the groundwork, the Sixth Circuit held in Bivens that an employer can only be held liable for a third party’s actions if they intended for the harassment to occur.[27] Dorothy Bivens sued her employer under Title VII, asserting several claims.[28] The district court granted Zep’s (“Appellee’s”) motion for summary judgment.[29] Relying on the holdings in Bostock and Loper Bright, the circuit affirmed the grant of summary judgment.[30]
The circuit recognized its decision was inconsistent with other circuits, but it reassured the parties that it did not “lose any sleep over standing nearly alone in th[eir] conclusion.”[31] The circuit discussed the previous decisions of the Tenth Circuit, recognizing “there is no legal mechanism for imputing unlawful intent of a customer to a business [they] frequent[].”[32] The Sixth Circuit emphasized that adopting its rule in other court cases would result in the same holding.[33]
IV. Intra-Circuit Tensions
The Sixth Circuit makes clear that its decision differs from six other circuits,[34] but it emphasized the “intra-circuit tension[s]” of the Seventh Circuit.[35] The Bivens decision highlights that Seventh Circuit Judge Easterbrook “correctly identifi[ed]” the need to apply its rule, but it also reveals other decisions in the Seventh Circuit applying the negligence standard.[36] Together, these decisions reflect internal inconsistency within the Seventh Circuit, which alludes to possible inconsistent developments post-Bivens.[37]
V. Conclusion
The Supreme Court decisions in Bostock and Loper Bright gave the Sixth Circuit the tools and confidence to reassess the EEOC’s negligence standard and ultimately apply an intent standard.[38] The Sixth Circuit decision in Bivens is paving the way for other circuits to follow course, especially due to existing intra-circuit tensions surrounding the subject matter.[39] Even more generally, the increase in courts reevaluating agencies’ interpretative authority and diverting from its interpretations will potentially increase as a whole because Bivens has been empowered to take this step.[40] Alternatively, the circuit split could result in the Supreme Court clarifying whether plaintiffs must show intent or neglect by their employer, much like it did in Bostock.[41] Either way, employers now have a new defense for client harassment claims in the Sixth Circuit, making it harder for employees to hold employers accountable.[42]
*Macy Hamlett is a second-year student at the University of Baltimore School of Law and a Staff Editor for Volume 55 of Law Review. Macy is a member of Honor Board, a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society, and a UB LEADS Mentor. In the summer of 2025, Macy worked as Summer Associate for Baker, Donelson, Bearman, Caldwell & Berkowitz PC. Next summer, she will join DLA Piper LLP (US) as a Summer Associate in their Baltimore office.
[1] Bivens v. Zep, Inc., 147 F.4th 635, 645 (6th Cir. 2025) (alteration in original) (quoting Staub v. Proctor Hosp., 562 U.S. 411, 417 (2011)); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e–17 (2018).
[2] See Khorri Atkinson, Employers Have a New Client Harassment Defense Post-Loper Bright, Bloomberg L.: Daily Labor Report (Aug. 20, 2025, at 05:05 ET), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/daily-labor-report/BNA%2000000198-aa95-d9d8-a5bf-aeb598190001. Harassment by a third party can be an employee informing their supervisor of unwelcome sexual advances by a customer. See Bivens, 147 F.4th at 641 (recounting Bivens’s visit to a client where the manager locked her in his office and asked her to date).
[3] See infra Part II.
[4] Bostock v. Clayton Cnty., 590 U.S. 644 (2020).
[5] Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024); Bivens v. Zep, Inc., 147 F.4th 635, 646 (6th Cir. 2025); see infra Part II.
[6] See Bostock v. Clayton Cnty., 590 U.S. at 662.
[7] Loper Bright Enters., 603 U.S. at 396.
[8] See infra Part III.
[9] Bostock v. Clayton Cnty., 590 U.S. at 651–54.
[10] Id. at 653.
[11] Id.
[12] Id.
[13] Id. at 653–54.
[14] See id. at 654.
[15] Compare Bostock v. Clayton Cnty. Bd. of Comm’rs, 723 F. App’x 964, 965 (11th Cir. 2018) (per curiam) (affirming dismissal of complaint for sexual orientation discrimination under Title VII ), rev’d sub nom., Bostock v. Clayton Cnty., 590 U.S. 644 (2020), with Zarda v. Altitude Express, Inc., 883 F.3d 100, 107–08 (2d Cir. 2018) (holding that Title VII prohibits discrimination on the basis of sexual orientation), aff’d sub nom., Bostock v. Clayton Cnty., 590 U.S. 644 (2020), and Equal Emp. Opp. Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 576, 600 (6th Cir. 2018) (holding that Title VII prohibits discrimination on the basis of sexual orientation), aff’d sub nom., Bostock v. Clayton Cnty., 590 U.S. 644 (2020).
[16] Bostock v. Clayton Cnty., 590 U.S. at 659, 662.
[17] Id. at 659.
[18] Id. at 663–64 (citing Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam); L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)).
[19] Id. at 662 (“[[T]he employer must intentionally discriminate . . . .”).
[20] See Atkinson, supra note 2; see also Loper Bright Enters.v. Raimondo, 603 U.S. 369, 406–07 (2024) (“The experience of the last 40 years has thus done little to rehabilitate Chevron. It has only made clear that Chevron’s fictional presumption of congressional intent was always unmoored from the APA’s demand that courts exercise independent judgment in construing statutes administered by agencies.”).
[21] Loper Bright Enters., 603 U.S. at 407, 412, overruling, Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
[22] Loper Bright Enters., 603 U.S. at 377.
[23] Id. at 382–83.
[24] Id. at 401, 407; 5 U.S.C. § 551 et seq.
[25] Id. at 407; see, e.g., Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 231 (2022) (“Stare decisis . . . does not compel unending adherence . . . .”).
[26] Loper Bright Enters., 603 U.S. at 390, 412–13.
[27] Bivens v. Zep, Inc., 147 F.4th 635, 645 (6th Cir. 2025) (emphasis added).
[28] Id. at 641.
[29] Id. at 642.
[30] Id. at 645–46, 652 (relying on Bostock and Loper Bright).
[31] Id. at 646.
[32] Id. at 647 (discussing Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998)).
[33] Id.
[34] Id. at 646.
[35] Id.
[36] Id. at 646–47 (citing Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 931 (7th Cir. 2017)).
[37] See infra Part V.
[38] See supra Part II.
[39] See supra Part IV.
[40] See supra Section II.B.
[41] See supra Parts II–III.
[42] Atkinson, supra note 2.
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