Alleged HR mockery over off-site harassment complaint could spark employer liability

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. The Kruitbosch decision highlights that while employers are not automatically responsible for all off-site, non-work-related actions by their employees, they may nevertheless face potential liability based on how they respond to harassment complaints, regardless of where the alleged underlying conduct occurred.

Case allegations

In his lawsuit, Steven Kruitbosch, a former employee at Bakersfield Recovery Services, Inc. (BRS), alleged that a coworker had 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, among other claims. BRS filed a demurrer to all the FEHA claims, among others, and the trial court sustained the demurrer, dismissing Kruitbosch's claims without leave to amend.

Appeals court decision

Alleged off-site harassment

On appeal, because the trial court had decided the case on a demurrer, the appellate court applied "well settled" demurrer review standards, including treating "the demurrer as admitting all material facts properly pleaded" in the underlying complaint. In its review, 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 prior 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 contexts. 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 court determined that 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 -- for example, 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 potential harassment

However, the court recognized that an employer's response to a complaint of harassment -- even if the alleged original conduct occurred off-site and was not work-related -- 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 potentially constitute hostile work environment harassment. In other words, the court found that 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 treat all complaints of harassment seriously, respectfully and in accordance with established procedures, regardless of where the alleged conduct occurred. An employer's response to harassment complaints -- especially if dismissive or mocking -- can itself create liability, even if the alleged original conduct is not work-related.

The Kruitbosch case confirms that California courts are willing to look beyond the location of alleged harassment and scrutinize the employer's response to complaints. This means that even if the underlying alleged conduct occurs outside the workplace, employers cannot afford to ignore or trivialize such allegations.

Employers should ensure that all managers, HR representatives and supervisors receive comprehensive training on recognizing, reporting and addressing harassment. This training should include guidance on responding to complaints about conduct occurring outside of work, as well as the importance of maintaining professionalism at all times. Delays or failures to investigate complaints may be construed as indifference or tacit approval of the alleged conduct. As such, employers should promptly and thoroughly investigate the alleged conduct and take appropriate remedial action, if any is justified, based on the findings.

The Kruitbosch decision is a clear warning: How an employer responds to allegations of harassment -- regardless of where they originate -- can be just as important as the allegations themselves in determining legal liability and workplace culture.