Hunton Employment & Labor Perspectives

In a recent California appellate decision, Kruitbosch v. Bakersfield Recovery Services, Inc., the court addressed critical questions about employer liability for alleged coworker harassment that occurs outside the workplace, as well as the impact of an employer’s response to such complaints. While off-site conduct by coworkers may not always be imputable to the employer under California’s Fair Employment and Housing Act (“FEHA”), the California appellate court found that an employer’s allegedly inadequate or mocking response to a harassment complaint could itself create a hostile work environment and support a claim.

Case Allegations

 In his lawsuit, Steven Kruitbosch, an employee at Bakersfield Recovery Services, Inc. (“BRS”), alleged that a coworker subjected him to crude sexual advances at his home and via his personal cell phone—both outside BRS’s premises. Kruitbosch alleged that when he reported the conduct to the acting program director and a human resources representative, he was told that there was not much BRS could do about the coworker’s alleged behavior. Kruitbosch further alleged that the HR representative made a mocking social media post and a sarcastic comment about the incident, that BRS did not take any steps to separate him from his coworker or prevent future harassment, and that BRS did not take any disciplinary action as to the coworker. Kruitbosch allegedly felt forced to avoid the coworker in the workplace, experienced distress and anxiety, and ultimately resigned. He subsequently filed suit, alleging harassment, discrimination, and retaliation under FEHA. The trial court dismissed Kruitbosch’s claims without leave to amend.

Appeals Court Decision

Alleged Off-Site Harassment

 On appeal, the court made an important distinction between supervisor and coworker harassment occurring off-site. For conduct to be imputable to an employer under FEHA, it must occur in a work-related context, not merely in a private relationship or under circumstances detached from the workplace. Given the court found no FEHA cases discussing whether the harassing conduct of a nonsupervisory coworker occurring away from the workplace is imputable to the employer, it relied on previously established principles in the supervisory and Title VII context. Specifically, the court identified “a number of nondispositive factors” relevant to the allegations before it: whether the alleged harassing conduct occurred (1) in (or through) a venue or modality that was paid for or hosted by the employer; (2) from or in circumstances the employer had arranged, sanctioned or approved; (3) in a context where the employer was deriving, or could be expected to obtain, some benefit; or (4) in the context of employment-related social circumstances where it would be expected that employees would interact and socialize.

In this case, the conduct alleged by Kruitbosch against his coworker lacked the necessary work-related nexus. The court found there were no allegations indicating the conduct occurred from a “venue or modality” that BRS provided or sanctioned explicitly or implicitly (i.e., a cell phone or email provided by the workplace). Additionally, the alleged unwanted sexual advances themselves were unconnected with work—they did not occur in the context of a work-related event, arise from circumstances approved or paid for by BRS, or derive from work-related social circumstances where employees would foreseeably interact and socialize. Although Kruitbosch alleged the coworker obtained his contact information through work, he did not allege BRS facilitated employees’ exchange of personal contact information or benefited from it. Thus, the alleged conduct was not imputable to BRS, and the claim failed on that basis.

The Alleged Response by HR as Harassment

However, the court recognized that an employer’s response to harassment—even if the original harassment occurred off-site—can independently create a hostile work environment. In fact, the court directed the parties to file supplemental briefs regarding whether Kruitbosch had stated a cognizable hostile work environment sexual harassment claim analogous to Fuller v. Idaho Department of Corrections, 865 F.3d 1154 (9th Cir. 2017), where the plaintiff’s supervisor’s response to her report of an off-site rape by her coworker-boyfriend independently created a hostile work environment.

The court ruled that, considering the totality of the circumstances, it could not conclude as a matter of law that BRS’s alleged inaction and the alleged comments by the HR representative were insufficient to alter Kruitbosch’s working environment so as to constitute harassment. In other words, BRS’s alleged refusal to act, coupled with the alleged sarcastic remarks by the HR representative, could have independently resulted in a hostile work environment. Against the backdrop of Kruitbosch’s allegations of aggressive sexual advances, the court noted that the allegations in the complaint set forth “no investigation of [Kruitbosch’s] complaint, no admonition to [the coworker] to cease her conduct, and BRS took no steps to shield plaintiff from having to interact with [the coworker] unsupervised.” Moreover, the court explained that the alleged sarcastic response by the HR representative to Kruitbosch about the alleged harassing conduct could be viewed by a jury as more than “merely an isolated instance of simple teasing.” Indeed, the court noted that the alleged response by the employer could be reasonably viewed as “sending a message that BRS was not concerned about [the coworker’s] conduct toward plaintiff; that unwanted sexual advances, including those that threatened [Kruitbosch’s] sobriety, were acceptable; and that plaintiff was not warranted in asking BRS to address it to ensure his workplace was harassment free.” Consequently, the court found that Kruitbosch’s harassment claim was viable on the basis that BRS’s alleged response to his complaint could have severely altered his working environment

Implications for Employers

 The court’s holding in Kruitbosch is a reminder that HR and management should be trained to treat all complaints seriously, respectfully, and in accordance with established procedures, regardless of where the alleged conduct occurred. The employer’s response to harassment complaints—especially if dismissive or mocking—can itself create liability, even if the original conduct is not work-related.