In the recent decision of Kruitbosch v. Bakersfield Recovery Services, Inc. (CA5 F087809 partial pub. 9/8/25), a California court held that, although sexual harassment by a co-worker outside the workplace was not “work-related,” the employer’s response to the complaint can support an independent hostile environment claim against an employer.
Background
Plaintiff, a compliance officer for Bakersfield Recovery Services, alleged a female co-worker subjected him to crude sexual advances at his home and via his personal cell phone away from where he worked. Specifically, Plaintiff claimed that, after his partner passed away, his co-worker sent him multiple unsolicited nude pictures, stating she wanted to have sex with him. On one occasion, the co-worker allegedly appeared at Plaintiff’s home uninvited (with a friend), indicating she was there to have sex with Plaintiff. Plaintiff instructed the women to leave. When the co-worker departed Plaintiff’s property, she left behind a cucumber with a condom attached. Later that same day, the co-worker texted Plaintiff and invited him to a hotel room to have sex and do drugs (Plaintiff struggled with drug addiction.). She also sent Plaintiff multiple sexual images, including of her genitals, breasts, and buttocks. Plaintiff claims to have rejected these advances.
Apparently, when Plaintiff reported this conduct to the company’s human resources representative, he was told there was nothing that could be done because it occurred off property. That same day, the HR rep posted a video on social media depicting whining dogs and stated, “‘This is a workday at thr [sic] office … lmbo.’” Later in the week, the HR rep allegedly said to Plaintiff: “‘I hope you don’t get no more pictures.’”
Neither management nor HR took any steps to separate Plaintiff from the alleged harasser or prevent future harassment and no disciplinary action was taken. Plaintiff avoided contact with the alleged harasser, but eventually quit his employment having determined the stress of being in the same work environment was overwhelming.
Legal Theories
Plaintiff filed suit alleging several claims, including harassment, discrimination and retaliation in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). In response to his claim that his co-worker’s conduct was “work-related,” the court evaluated whether the conduct 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.
Applying these factors, the court found the co-worker did not approach Plaintiff at his home or contact him on his phone for work purposes. Her advances also had nothing to do with work and they did not occur in the context of a work-related event. Thus, although the co-worker’s alleged conduct was reprehensible, it was not sufficiently work-related within the ambit of FEHA and could not be imputable to the company.
Nevertheless, Plaintiff’s sexual harassment hostile work environment claim was found viable based on a theory that the company’s response to Plaintiff’s complaint “altered plaintiff’s work environment” in an objectively severe manner. The company’s refusal to take any action while simultaneously mocking Plaintiff’s concerns could indicate to a reasonable person in Plaintiff’s circumstances that the company had no objection to the co-worker’s conduct and that Plaintiff’s concerns were a “literal joke” to the company. “An employer’s response to harassment occurring outside the physical or digital workplace can independently create a hostile work environment” the court held.
Conclusion
Although this was a case decided at the pleading stage (it has not yet gone to a jury), the outcome should be a reminder to employers to treat all complaints of sexual harassment seriously. Even if conduct occurs outside the workplace, an investigation may be necessary along with separation of the affected individuals at work. Refresher training on harassment, discrimination, and respect in the workplace may also be warranted.
