A recent California appellate decision offers new guidance on when an employer may be held responsible for harassment that occurs away from the workplace—and specifically when the alleged harasser is a coworker rather than a supervisor.

The case, Kruitbosch v. Bakersfield Recover Services, et al., involves claims brought by an employee, Steven Kruitbosch, against both his former employer, Bakersfield Recovery Services, Inc., and his former co-worker, Lisa Sanders.  According to Kruitbosch, while he was on personal leave following the death of his longtime partner, Sanders obtained his personal cell phone number from work and began sending him multiple unsolicited nude photographs and sexual messages.  Kruitbosch also alleges that Sanders showed up at his house with a friend and told Kruitbosch she was there to have sex with him.  Kruitbosch rejected her offer and told her to leave.  After she left, Kruitbosch claims that Sanders texted him yet again, inviting him to a hotel room for drugs and sex.  Kruitbosch again rejected Sanders’ advances.

On his first day back at the office, Kruitbosch reported the conduct to the acting program director, Stephanie Carroll, and to an HR representative, Kimberly Giles. Kruitbosch alleges that Carroll told him there was nothing BRS could do, as the alleged conduct occurred outside of the workplace and Sanders was not Kruitbosch’s superior, but rather, a co-worker. Kruitbosch also claims that, later that day, Giles posted a social-media video depicting whining dogs with a caption implying that this represented her day at work. Kruitbosch alleges that, later that week, Giles sarcastically told Kruitbosch that she hoped he didn’t get any more pictures. Roughly a week after returning to work, Kruitbosch resigned.

A few months later, Kruitbosch sued both BRS and Sanders, bringing ten claims, including several claims under California’s Fair Employment and Housing Act (FEHA) and a claim for constructive termination. BRS filed a demurrer, arguing the conduct was not sufficiently work-related and that Kruitbosch had not been constructively terminated. The trial court agreed with BRS and dismissed the case without leave to amend.

On appeal, the court affirmed the dismissal of the constructive termination claim but revived the FEHA claims. The appellate court agreed with the trial court that Sanders’s off-duty conduct, by itself, was not sufficiently connected to the workplace to create employer liability. In reaching this decision, appellate court emphasized that this was a situation of alleged harassment by a co-worker, not a supervisor.  As a result, a negligence rather than a strict liability standard applies to determine BRS’s culpability as the employer with regards to Sanders’s conduct.  Using a negligence standard, the appellate court determined that a review of the totality of the circumstances did not support holding BRS liable for Sander’s conduct as there was no evidence Sanders’s used any technology provided by BRS to harass Kruitbosch, nor were there any allegations that Sanders continued this behavior in the workplace when Kruitbosch returned to work.

While the appellate court determined that BRS could not be found liable for Sanders’s alleged conduct based on the totality of the circumstances, it still reversed the trial court’s decision to sustain BRS’s demurrers to the FEHA claims as BRS’s response to Kruitbosch’s complaint could form the basis of an actionable claim under FEHA. In so doing, the appellate court focused on Carroll’s refusal to take any action to investigate Kruitbosch’s claim, as well as Giles’s sarcastic comments to Kruitbosch after he lodged his complaint. The appellate court held it was possible for a reasonable employee to view the workplace as indifferent or even hostile to his well-being. For that reason, the FEHA claims were allowed to proceed.

This case is a reminder to employers of the importance of taking every harassment complaint made by an employee seriously and to conduct a reasonable prompt and thorough investigation of the complaint.  Even if the claimed harassment itself might not amount to potential liability for the employer, the employer’s failure to respond and take these allegations seriously can itself support a lawsuit in the future. If in doubt about the level of investigation required by a specific complaint, it is always best to seek legal advice to ensure that each complaint is receiving proper attention and an appropriate response.

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