Offsite, After Hours Harassment Not Actionable Under FEHA

Where a coworker allegedly sent explicit messages and images and visited an employee's home uninvited while the employee was on leave and after work hours, the conduct was not sufficiently work related to support claims of sexual harassment against the employer, a California appellate court has ruled.

However, the employer's allegedly mocking response to the employee's complaint could support a claim of sexual harassment hostile work environment.

Steven Kruitbosch, an assistant corporate compliance officer at BRS—a provider of substance abuse treatment for individuals recovering from alcoholism and drug addiction—took leave under the California Family Rights Act following the death his long-time partner.

In the week leading up to his return to work, coworker Lisa Sanders began sending him multiple unsolicited nude pictures and stating she wanted to have sex with him. Kruitbosch firmly rejected the advances.

One night, Sanders arrived at Kruitbosch's house uninvited, indicating that she was there to have sex with him. She eventually left his property after he repeatedly told her to leave him alone, but left behind a cucumber with a condom attached.

Sanders continued to text Kruitbosch, inviting him to a hotel room to have sex and sending multiple nude images of herself.

When Kruitbosch returned to work, he immediately complained to the acting program director and a human resources (HR) representative. The program director informed Kruitbosch there was not much she could do about Sanders's behavior, as it occurred after hours and offsite.

The HR representative posted a social media video depicting whining dogs and stated, "This is a work day at thr [sic] office ... lmbo." She also sarcastically commented to Kruitbosch, "I hope you don't get no more pictures."

At no point were any steps taken to separate Kruitbosch from Sanders or prevent future harassment; nor did BRS take any disciplinary action as to Sanders.

Kruitbosch's employment was unbearable, as he tried to avoid Sanders and felt hopeless knowing she was free to continue the harassment. He resigned.

He then filed a lawsuit against BRS and Sanders, alleging claims under FEHA—hostile work environment sexual harassment, sex/gender discrimination, retaliation, failure to prevent harassment, discrimination or retaliation—as well as claims for negligent hiring, supervising or retention, and violations of the Labor Code.

The trial court sustained BRS's demurrer without leave to amend and Kruitbosch appealed.

While the parties cited several cases involving the liability standard for imputing a supervisor's conduct to the employer, even offsite, they cited no FEHA cases exploring whether the harassing conduct of a nonsupervisory coworker occurring away from the workplace is imputable to the employer.

Drawing on analogous federal precedent under Title VII, the court identified several nondispositive factors relevant to its analysis. These include whether the harassing conduct occurred in or through a venue or modality funded or hosted by the employer; arose from or in circumstances arranged, sanctioned, or approved by the employer; took place in a context where the employer was deriving or could be expected to obtain some benefit; or in the context of employment-related social circumstances where it would be expected that employees would interact and socialized.

The personal relationship of the coworkers, although perhaps relevant, did not take on the same importance as in supervisor-harassment cases where a personal relationship is a necessary element for an exception to liability, the court noted.

Additionally, in the context of Title VII the court emphasized that the relevant question was not whether the harassing conduct occurred on or off the physical or digital worksite, but rather whether, considering all circumstances, the "harassing conduct had an unreasonable effect on the working environment and, if so, to consider whether and how the employer responded to that effect," citing a Ninth Circuit decision.

No allegations existed that Sanders approached Kruitbosch at his home or contacted him on his cellphone for any work-related purpose, even pretextually; nor were there any allegations indicating the conduct occurred from a workplace modality the employer provided or sanctioned (i.e., cellphone or email provided by the workplace) and Sanders's unwanted sexual advances did not occur in the context of a work-related event, derive from work-related social circumstances or arise from circumstances approved, sanctioned or paid for by BRS.

"Although the [complaint] alleges Sanders obtained [Kruitbosch's] contact information only through work, it does not allege BRS promoted or facilitated employees' exchange of personal contact information or benefited from it," the court wrote. "The mere fact Sanders and [Kruitbosch] knew each other only through work does not make Sanders's conduct toward [Kruitbosch] work related any more than if she had surreptitiously followed him home from the workplace one day."

"While thoroughly repugnant, the allegations regarding Sanders's conduct do not involve work-related harassment," the court concluded.

However, this was not the end of the inquiry, because the court determined that BRS's response to the alleged harassment happening outside the physical or digital workplace independently created a hostile work environment.

Kruitbosch told the court that the HR rep's comment and media post mocking him, in conjunction with BRS's ratification of Sanders' conduct through inaction, materially altered his working conditions.

At the demurrer stage, the court agreed.

"[W]hen viewing the totality of the circumstances presented here, BRS's refusal to take any action while simultaneously mocking [Kruitbosch's] concerns, could indicate to a reasonable person in [his] circumstances that BRS had no objection to Sanders's conduct; and that [his] concerns about her conduct were a literal joke to BRS," the court wrote.

The court reversed dismissal of Kruitbosch's hostile work environment sexual harassment claim. As the court found that he stated a viable underlying claim for harassment, it also reversed dismissal on his claim of failure to prevent harassment.

To read the opinion in Kruitbosch v. Bakersfield Recovery Services, click here.

Why it matters: The decision provides a cautionary tale for employers in California. Although the court determined that the alleged harassment was not sufficiently work related to support a claim under FEHA, the employer's response to the employee's report of the alleged harassment independently created a hostile work environment, leading the court to reverse dismissal of multiple claims.

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