California Court Clarifies Employer Liability for Off-Site Harassment

Quick Hits

• The California Court of Appeal, Fifth Appellate District, held that off-site, nonwork-related sexual harassment by a coworker is not, by itself, imputable to the employer under FEHA.
• A sufficient nexus between the harassing conduct and the workplace must exist for off-site conduct to be imputable to the employer under FEHA.
• An employer’s response (or lack thereof) to an employee’s complaint about nonsupervisory off-site nonwork-related harassment itself can create an actionable hostile work environment.

Background

The plaintiff, Steven Kruitbosch, a male assistant corporate compliance officer at substance abuse treatment provider Bakersfield Recovery Services (BRS), alleged that a female coworker subjected him to unwanted sexual advances, including sending him unsolicited nude images, visiting his home uninvited, texting him sexual propositions and an offer of drugs, and leaving a cucumber covered with a condom in his driveway. The conduct occurred while Kruitbosch was on a month-long leave of absence because his partner died.

Upon returning to work, Kruitbosch reported the coworker’s conduct to the acting program director and the HR representative. The acting program director told him that not much could be done about his coworker’s behavior. That same day, the HR representative made a mocking social media post and later told Kruitbosch, “I hope you don’t get no more pictures.” The company did not try to separate Kruitbosch and his coworker. Kruitbosch claimed that he resigned within a week of returning from leave because he knew that the company would not do anything if the coworker harassed him again and because he was concerned about his sobriety.

Kruitbosch filed a complaint with ten causes of action, including hostile work environment sexual harassment. The trial court granted BRS’s demurrer and dismissed the case with prejudice without leave to amend. Kruitbosch appealed.

Analysis

Work-Relatedness of Harassing Conduct

The court reaffirmed that off-site coworker harassment must be work-related for the employer to be liable under FEHA.

However, the court found that the coworker’s sexual advances, while egregious, occurred entirely outside the workplace and were not connected to any work-related event, employer-sanctioned activity, or benefit to the employer. That the individuals knew each other through work did not render the conduct work-related. Nor did Kruitbosch’s report of the nonwork-related harassment to BRS retroactively render the conduct work-related. As such, the court held that the employer could not be liable under FEHA for the coworker’s conduct.

Employer’s Response as a Basis for Liability

However, the court made clear that an employer’s response to an off-site harassment complaint itself can create a hostile work environment, even if the off-site harassment is not work-related. The court emphasized that the “totality of the circumstances” must be evaluated to determine whether a work environment is reasonably perceived as hostile or abusive.

In considering the totality of the circumstances, the court determined that BRS’s response could have altered Kruitbosch’s working environment in an objectively severe manner. BRS’s refusal to investigate the complaint, failure to admonish the alleged harasser for the conduct, and making a mockery out of the employee’s complaint could alter an employee’s working environment in an objectively severe manner.

As the court explained, “A reasonable person in plaintiff’s circumstances could understand from such a response that it was not that [the coworker’s] conduct occurred off-site which prevented BRS from acting, but that BRS viewed what she had done as not serious; that plaintiff, as a man, should not be affected by sexual advances from a woman; and that plaintiff’s well-being in the workplace was of no import to BRS. Plaintiff was left to navigate his working interactions with [the coworker] … totally on his own.”

Key Takeaways

The court’s ruling contains several lessons for employers, including the following:

• Employers are not liable for off-site, nonwork-related coworker harassment.
• Employers, however, may be liable if their response to a harassment complaint (work-related or not) creates or exacerbates a hostile work environment.
• Employers may want to take seriously and appropriately address all harassment complaints, regardless of where the underlying conduct occurred.

The decision in Kruitbosch underscores the importance of prompt and effective employer responses to harassment complaints and clarifies the boundaries of employer liability under FEHA for off-site sexual harassment claims.

Ogletree Deakins will continue to monitor developments and will post updates on the California and Employment Law blogs as additional information becomes available.

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