Is the Employer Liable for Co-Worker’s Off-Site, After Hours Harassment?

In a recent case, Kruitbosch v. Bakersfield Recovery Services, a California appellate court found that an employer (BRS) was not liable under California’s Fair Employment and Housing Act (FEHA) for a co-worker’s off-site, off-duty sexual harassment because the conduct was not sufficiently work-related. However, the court’s decision was not a complete victory for this employer: the court also found that the employer’s response to the complaint, including the behavior of its HR representative towards the complaining employee, could create a viable FEHA hostile work environment harassment claim.

California employers should pay attention to this case. It is the first California court guidance on employer FEHA liability for off-site, off-duty co-worker harassment. The case is also an important reminder of the importance of taking employee complaints seriously.

Facts

Plaintiff Stephen Kruitbosch alleged that one of his co-workers, Lisa Sanders, made numerous unwelcome and vulgar sexual advances during the week immediately before his planned return to work from protected leave. Sanders’ alleged advances included texting multiple unsolicited nude photographs of herself to Kruitbosch with messages stating she wanted to have sex with him, and continuing to proposition him for sex after he firmly rejected her advances, including showing up at his home uninvited on the Friday before his scheduled return to work.

Kruitbosch immediately complained upon his return to work. His program director and the HR representative told him there was nothing that could be done. That same day, the HR representative posted a video on social media depicting whining dogs and stating, “‘This is a work day at the [sic] office … lmbo” (aka “laughing my butt off”), allegedly referencing Kruitbosch. Later that week, the HR representative “sarcastically commented” to Kruitbosch “I  hope you don’t get any more pictures.” The employer took no steps to discipline Sanders or separate her from Kruitbosch. Kruitbosch resigned his employment a week later.

Kruitbosch filed a lawsuit against the employer alleging, among other claims, hostile work environment harassment in violation of FEHA. The trial court dismissed his claims with prejudice, and Kruitbosch appealed.

Co-Worker’s Conduct Was Not Sufficiently Work-Related For FEHA Liability.

The appeals court concluded that a plaintiff alleging hostile environment sexual harassment for conduct occurring away from the workplace and outside of working hours must also show the conduct was in some fashion work-related. (In addition to the other requirements for a hostile environment sexual harassment claim—unwelcome conduct based on a protected classification, severe or pervasive enough to alter the conditions of employment and create an abusive work environment.)

In the case of co-worker harassment, where employer liability is based on a negligence standard, the question of whether off-duty, off-site harassment conduct is considered “work-related” is based on the totality of the circumstances, such as whether the harassing conduct occurred:

1. in a venue or through a modality paid for or hosted by the employer;
2. from or in circumstances the employer arranged, sanctioned, or approved;
3. in a context where the employer was or could be expected to obtain some benefit;
4. in employment-related social circumstances where it would be expected that employees would interact and socialize.

Reviewing these factors, the appeals court concluded that Sanders’s conduct did not create a viable FEHA hostile environment claim against the employer because it was not work-related.

The Employer’s Conduct in Response to the Complaint Could Create FEHA Liability

The inquiry into Kruitbosch’s hostile environment claim did not end with the conclusion that Sanders’ conduct was not work-related. Rather, the court ruled that BRS’ conduct in response to Kruitbosch’s complaint could “independently create” a FEHA hostile work environment sexual harassment claim.

BRS refused to investigate or take any action in response to Kruitbosch’s complaint, “while simultaneously mocking his concerns,” which could suggest that BRS did not object to Sanders’ conduct. Considering the aggressive nature of Sanders’s behavior, one could conclude that BRS’s conduct altered Kruitbosch’s work environment in an objectively severe manner, allowing him to pursue his sexual harassment and hostile work environment claim.

The Kruitbosch case is likely to continue in litigation, and there may be further opinions on the issue of off-site after-hours co-worker harassment. But this case should serve as a reminder to employers to take all complaints of harassment seriously. This includes a thorough and neutral investigation, as well as measures to make sure any unwelcome off-site/off-duty harassing or abusive behavior does not make its way into the workplace.

Questions about responding to an employee complaint? CEA members can call our HR Directors with questions. If you have a harassment complaint to investigate, take a look at our Workplace Investigation services.