This week, a California Court of Appeal issued a ruling, which provides helpful guidance for employers dealing with non-supervisor sexual harassment occurring away from the workplace. In Kruitbosch v. Bakersfield Recovery Services, the court held that while the harasser’s conduct could not be imputed to the employer (BRS), BRS’s deficient response to the affected employee’s complaint, as alleged, created a viable claim for hostile work environment sexual harassment.

A. Facts of the Case

In the case, plaintiff Steven Kruitbosch became acquainted with coworker Lisa Sanders at their employer BRS, a substance abuse treatment center. Kruitbosch interacted with Sanders several times per week on average and had no relationship with her outside of work.

In February 2023, Kruitbosch took a month-long leave of absence after the passing of his long-time partner. In the week before his scheduled return, Sanders began sending Kruitbosch multiple text messages that she wanted to have sex with him, advances that Kruitbosch firmly rebuffed. Then, on March 3, Sanders went to Kruitbosch’s house with a friend, telling him she was there to have sex with him. Kruitbosch instructed them to leave and stop harassing him. When Sanders finally left, she dropped a cucumber with a condom on Kruitbosch’s driveway. Later that day, Sanders texted Kruitbosch, telling him she was at a hotel, wanted to have sex with him, and had “dope” (Kruitbosch was a recovering addict). She also sent Kruitbosch multiple explicit nude photos of herself.

When Kruitbosch returned from leave on March 7, he complained to BRS’s acting program director Stephanie Carroll and HR representative Kimberly Giles. Carroll told Kruitbosch there was nothing she could do. Later that day, Giles posted a video of dogs whining on social media and stated, “This is a work day at thr [sic] office … lmbo.’” Later that week, she sarcastically commented to Kruitbosch, “‘I hope you don’t get no more pictures.” Carroll and Giles took no steps to separate Kruitbosch from Sanders or prevent future harassment. BRS took no disciplinary action against Sanders.

Over the next few days, Kruitbosch’s employment became unbearable, as he sought to avoid Sanders and felt anger and helplessness due to BRS’s inaction. He resigned on March 13 and sued BRS and Sanders two months later on several bases, including hostile work environment sexual harassment. The trial court dismissed this claim, holding the above allegations did not constitute sexual harassment as a matter of law.

B. The Court of Appeal’s Analysis

On appeal, the Court of Appeal disagreed with the trial court after analyzing two distinct parts of the claim—the alleged harassment itself and BRS’s response.

Regarding the conduct at issue, the court first distinguished between an employer’s liability for supervisor sexual harassment vs. non-supervisor sexual harassment. For supervisors (which Sanders was not), the employer is strictly liable for the supervisor’s actions when he or she is acting in their capacity as a supervisor. For non-supervisors, the employer is liable when it knows or should have known about the conduct and fails to take immediate and appropriate corrective action. When harassment occurs away from work, an employer may be liable if the harassment is sufficiently “work-related.”

For non-supervisors (like Sanders), whether harassment is work-related depends on the “totality of the circumstances,” which courts can determine by considering a number of relevant factors, including whether the 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.

With these factors in mind, the court determined Sanders’s conduct was not work-related, and so, BRS could not be liable for her actions directly. However, the court held that BRS’s response, if insufficient, could subject it to liability. This is because an employer’s response to harassment occurring outside of the workplace can independently create a hostile work environment. In analyzing the claims by Kruitbosch, the court reasoned that BRS’s inaction and Gile’s mocking comments, coupled with the aggressive nature of Sander’s sexual advances, could be viewed as having the effect of altering Kruitbosch’s work environment in an objectively severe manner. The court held that Kruitbosch’s allegations were enough to allow the case to proceed and reversed the trial court’s decision on this claim.

C. Employer Takeaways

There are a number of lessons employers can learn from the Kruitbosch decision. First, if an employee complains of sexual harassment occurring offsite or during non-working hours, it is important to take the employee’s complaint seriously. In most cases, this will require the employer to investigate the complaint and determine whether any policy was violated or any employer duty is triggered.

Another important takeaway is that off-worksite harassment can be “work-related,” which could subject the employer to liability. For supervisors, this typically occurs when the harasser is acting in some capacity as a supervisor. For non-supervisors, courts will look at the “totality of the circumstances,” which could include the four non-exclusive factors listed above. Yet another subtle point from Kruitbosch is that the harasser is not always a man. There is an undertone in the decision that BRS minimized Kruitbosch’s complaint because he was a man and Sanders was a woman. Employers need to take seriously all harassment complaints, whether the claim fits the typical fact pattern or not, and whether the harassment is based on sex or any protected category under state or federal law.