California Appellate Court Rules That, Although Coworker’s Off-Duty Conduct Was Not Imputable to Employer, Employer’s Response to Complaint May Establish a Cognizable Claim for Harassment
In Kruitbosch v. Bakersfield Recovery Services, Inc., 114 Cal.App.5th 200 (September 8, 2025), the California Court of Appeal for the Fifth Appellate District considered an employer’s liability under the California Fair Employment and Housing act (FEHA) for off-duty conduct by a coworker that was unrelated to work, as well as the employer’s liability based on its own response to the employee’s complaint about that conduct.
The plaintiff in that case, Steven Kruitbosch (Kruitbosch), worked for Bakersfield Recovery Service, Inc. (BRS), which provided substance abuse treatment to those recovering from alcohol and/or drug addiction.
Following the loss of his long-time partner, Kruitbosch took a leave of absence. In the week before Kruitbosch returned to work, a coworker, Lisa Sanders (Sanders), began sending him unsolicited nude pictures and told him she wanted to have sex with him. After Kruitbosch rejected Sanders’s advances, Sanders and a friend went to Kruitbosch’s home and reiterated Sanders’s desire to have sex, which Kruitbosch again rejected. After Sanders and her friend left Kruitbosch’s property, Kruitbosch found a cucumber with a condom attached in his driveway. Sanders proceeded to send Kruitbosch additional text messages and shared images of her genitals, breasts, and buttocks.
When Kruitbosch returned to work, he complained to BRS. The acting program director told him there was not much she could do and a human resources representative posted a video on social media depicting whining dogs with the message, “This is a work day at [the] office ... lmbo.” Later in the week, the human resources representative told Kruitbosch that she hoped he did not receive any more pictures.
At no point did BRS take any steps to separate Kruitbosch and Sanders or to prevent further misconduct by Sanders, and Sanders was never disciplined. Instead, Kruitbosch took proactive steps to avoid contact with Sanders and resigned his employment shortly thereafter.
Kruitbosch pursued litigation under the FEHA, among other claims. The trial court sustained BRS’s demurrer to the FEHA claims, noting, in part, that it was “not persuaded that the fact that the individuals involved met through their work relationship automatically means that any communications or any interaction that extends beyond that as a result of their introduction through the workplace is in fact something that is attributable to [BRS]. I do not believe that simply being coworkers is sufficient.” The trial court further reasoned that “this does not appear to be a pervasive situation in that there was one instance that was or one time that there was a complaint to BRS.”
On appeal, the Fifth Appellate District reversed the trial court’s ruling sustaining the demurrer as to the harassment and failure to prevent harassment claims. The appellate court agreed that, “although Sanders’s alleged conduct was reprehensible, it was not sufficiently work related within the ambit of FEHA, and it did not recur inside the workplace.” As a result, Sanders’s “underlying conduct is not imputable to BRS, and the claim is not cognizable on that basis.”
In reaching this conclusion, the court identified a number of non-dispositive factors relevant to determining whether conduct is work-related, including whether it: occurred in (or through) a venue or modality that was paid for or hosted by the employer; from or in circumstances the employer had arranged, sanctioned or approved; 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 socialize.
The court explained that, in “nonsupervisory coworker conduct cases, the personal relationship of the coworkers, although perhaps relevant, does not take on the same importance as in supervisor-harassment cases where a personal relationship is a necessary element for an exception to liability.” Citing federal authority, the court noted that “the relevant question is not whether the harassing conduct occurred on or off the physical or digital worksite, but whether, under the totality of the 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.’ Under that standard, ‘offsite and third-party conduct can have the effect of altering the working environment in an objectively severe or pervasive manner.’” (internal citations omitted)
In the case at hand, there were no allegations that Sanders’s conduct was for any work-related purpose and no allegations that the conduct occurred from a workplace modality that was provided or sanctioned by BRS. “Sanders’s unwanted sexual advances themselves had nothing to do with work—they did not occur in the context of a work-related event, arise from circumstances approved, sanctioned or paid for by BRS, or derive from work-related social circumstances where employees would foreseeably interact and socialize. Although the [pleading] 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 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.” The court further noted that there were “no allegations Sanders continued this behavior in the workplace when [Kruitbosch] returned to work. While thoroughly repugnant, the allegations regarding Sanders’s conduct do not involve work-related harassment.”
The court noted, however, that this was “not the end of the inquiry . . . because [Kruitbosch] alleges his employer’s response to his complaint about Sanders’s conduct unreasonably affected his working environment.” Reviewing the totality of the circumstances, the court concluded that Kruitbosch’s harassment claim was viable based on BRS’s response to Kruitbosch’s complaint about Sanders.
The court explained that a “reasonable person in [Kruitbosch’s] circumstances could understand from [BRS’s response that it was not that Sanders’s conduct occurred off-site which prevented BRS from acting, but that BRS viewed what she had done as not serious; that [Kruitbosch], as a man, should not be affected by sexual advances from a woman; and that [Kruitbosch’s] well-being in the workplace was of no import to BRS. [Kruitbosch] was left to navigate his working interactions with Sanders—which he alleges occurred two to three times a week—totally on his own. As a result, after BRS refused to take any action, [Kruitbosch] was forced to go to great lengths to avoid Sanders, and he operated in a state of extreme distress and fear that he would be forced to see Sanders; this constant state of heightened anxiety interfered with [Kruitbosch’s] ability to do his job as simple tasks became arduous, and his attention to detail began to wane. Moreover, [Kruitbosch alleges [the human resources representative’s] mocking and sarcastic comments compounded the effect of [BRS’s] refusal to take any action.”
The court continued, “when 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 [Kruitbosch’s] circumstances that BRS had no objection to Sanders’s conduct; and that [Kruitbosch’s] concerns about her conduct were a literal joke to BRS. Given the aggressive nature of Sanders’s sexual advances,” BRS’s inaction and mocking could be viewed as having the effect of altering Kruitbosch’s work environment.
Finally, the court held, because Kruitbosch’s underlying claim for sexual harassment was viable on that basis, so too was his claim for failure to prevent harassment.
This case clarifies the relevant factors when analyzing off-duty conduct involving coworkers and highlights the importance of employer responses to employee complaints of harassment, whether the alleged harassment occurred on or off-duty.
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