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“I Swear I Wasn’t Trying To Get Sued” Is Now a Legitimate Defense
There’s a very well-known internet video known as Leeroy Jenkins (and if you have no idea what I’m talking about, or immediately thought, “wow that reference really dates you,” I’m not mad just disappointed thank you so much for your support in reading the blog, it means the world to us).
Now, you may be thinking “What does the Leeroy Jenkins video have to do with an employment law blog?” Glad you asked! In this edition, we’re going to talk about how a recent Sixth Circuit decision broke from most other courts, and why this ripple might be spreading, especially in the wake of a recent Supreme Court case.
The Negligence Standard
Imagine the following scenario: A physician’s assistant is doing an initial screening of a patient, who makes a prejudiced comment. The PA immediately reports it to the doctor who owns the practice. The doctor has a chat with the patient and later informs the PA that the patient promised to never use such language again. A week later, the doctor sends the PA back in with the same patient for a follow-up. The patient makes a similar, prejudiced comment.
Until recently, there was a general consensus that the PA likely had a claim against the doctor and the practice under that scenario because the vast majority of Circuit Courts use the negligence standard to determine liability. This approach allows for employer liability in scenarios where an employee is harassed by a nonemployee (such as a patient or vendor) if the employer knew or should have known about the behavior and didn’t act promptly and appropriately. This is also the approach adopted by the Equal Employment Opportunity Commission (EEOC) and outlined in the agency’s harassment guidance, issued just last year.
And, since there have been zero major political changes of late, we’re all good with what the standard for these cases is, right? . . . right?
“Hold My Beer” – The Sixth Circuit
Last week, the United States Court of Appeals for the Sixth Circuit issued its decision in a case called Bivens v. Zep, Inc. The facts of Bivens are similar to the medical practice scenario above. Bivens involved an employee who complained that a client sexually harassed her. The employee’s supervisor reassigned her to another client, and well, if the story ended there we wouldn’t still be talking about this. However, the jurists in the Bivens case – a three-judge panel, made of all Trump administration appointees – took the opportunity to throw out the negligence standard and replace it with an even stricter standard for employer liability. Now – at least in the Sixth Circuit – negligence is not enough; to be liable, the employee must show that the employer intended for the harassment to happen – either by actually wanting it to occur or being “substantially certain” it would happen because of the employer’s actions, and deciding to go ahead anyway.
To put it mildly, I am substantially certain that’s a much higher bar. This now puts the Sixth Circuit (Michigan, Ohio, Kentucky, Tennessee) almost entirely alone – only one other circuit uses a similar “intent” approach. The rest of the country still holds employers liable when they’re negligent about stopping customer harassment. Oh – and there were some doozy quotes!
“[W]e note that our holding departs from the conclusion reached by most circuit courts to have addressed the issue as well as the EEOC’s reading of Title VII.”
“Having interpreted Title VII ourselves, we conclude, unlike the EEOC, that it imposes liability for non-employee harassment only where the employer intends for the harassment to occur.”
“[We will not] lose any sleep over standing nearly alone in this conclusion.”
“LEEEEEEROOOOOOOOOY JENKINS!!!”
(I swear I only made up one of those quotes)
Paging Loper Bright
Remember Loper Bright Enterprises v. Raimondo from last year? That’s the Supreme Court case that scrapped Chevron deference and told courts to use their own judgment instead of leaning on agency interpretations. We warned you it was only a matter of time before this opened the door for courts to disregard agency opinions and guidance – even the long-standing kind – and here we are. The Sixth Circuit took that invitation and ran with it. In Bivens, the court pointed directly to Loper Bright as a reason it could set aside the EEOC’s 2024 harassment guidance and replace it with its own, much stricter “intent” rule.
The bottom line? Bivens may be a big doctrinal shift in the Sixth Circuit, but its impact is limited (for now) to employers in that jurisdiction. And even in those states, your response to third-party harassment still matters. In fact, the Bivens outcome probably would’ve been the same under the negligence standard because the supervisor immediately reassigned the client and cut off further contact (not to mention it was just the right managerial thing to do – I know we primarily cover that “law” thing but don’t forget good HR practices, people!). So, whether you’re in Tennessee or California, treat complaints seriously and act promptly. Because the best way to avoid becoming the next test case is to keep your name out of the caption entirely. Honestly, the biggest takeaway from Bivens may just be the Loper Bright reference and what future longstanding agency guideline will be changed next.
Stay tuned!
Have a great weekend. And as always, if you’ve got questions, you know we’ve got answers.
~ The W + K Team
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Founded in 2019, Weinstein + Klein is a modern boutique law firm that serves as outside general counsel to businesses across industries. Weinstein + Klein provides strategic, day-to-day legal support with a focus on labor and employment law, corporate and transactional matters, and business litigation. Weinstein + Klein works closely with business owners, executives, and entrepreneurs to proactively manage risk, navigate complex employment issues, and handle key transactions – from formation to funding to exit.