Many California employers assume that employee conduct taking place entirely outside of work and outside working hours is not their responsibility. A recent California Court of Appeal decision explains why that assumption can be dangerously wrong. While employers are not automatically responsible for all off-duty misconduct between coworkers, they can still face liability under the Fair Employment and Housing Act (FEHA) if they fail to respond reasonably after learning that off-duty harassment involving employees is affecting the workplace.
In Kruitbosch v. Bakersfield Recovery Services, Inc., an employee alleged that a coworker, who was also a former romantic partner, engaged in sexually harassing conduct entirely outside the workplace. The alleged conduct did not occur at work, during work hours, or using employer resources, but was overtly sexually explicit and repetetive. The employee nevertheless reported the situation to his employer because he and the coworker continued to work together several times per week, and sometimes daily, and the situation harmfully impacted his ability to function at work.
The Court of Appeal agreed that the off-duty harassing conduct itself was not automatically the employer’s legal responsibility. FEHA does not make employers liable for every personal interaction between coworkers that happens away from work. That did not end the court’s analysis, however. The court explained that an employer’s response to reports of off-duty harassment by a coworker is evaluated under a negligence standard. This means the key question is whether the employer knew or should have known about the harassment and failed to take reasonable steps to address it. The focus is not on whether the employer caused or allowed the off-duty conduct, but on whether the employer responded appropriately after learning that the conduct occurred and was affecting the workplace.
The court also discussed the distinction between harassment by supervisors and harassment by coworkers. Under FEHA, employers are generally strictly liable for workplace harassment by supervisors, regardless of whether the employer knew about the conduct or took steps to stop it. By contrast, in coworker harassment cases, liability depends on whether the employer acted reasonably to investigate and remedy it after receiving notice. Whether the conduct occurred off duty or involved a prior personal relationship is relevant, but those factors do not mean the employer has no duty to act to maintain a harassment free work environment.
In Kruitbosch, the employee alleged that management told him there was “nothing that could be done” because the conduct occurred outside the workplace. He also alleged that the employer failed to take reasonable steps to evaluate how the situation was affecting the workplace or to address the continued interaction between the employees.
The Court of Appeal paid close attention to allegations involving the employer’s human resources representative. According to the complaint, on the day plaintiff made his complaint to HR, the HR representative posted a social-media video of whining dogs with the caption, “This is a work day at thr [sic] office … lmbo,” which the employee understood to be mocking his complaint. He also alleged that later the same week, the HR representative made a sarcastic comment to him, saying, “I hope you don’t get no more pictures,” in reference to sexually explicit pictures he reported having received from the coworker. The lawsuit further alleged that neither HR nor management took meaningful steps to address the workplace impact of the reported conduct. Because HR staff act on behalf of the employer, the court treated these allegations as relevant to whether the employer responded reasonably or instead dismissed the complaint.
Relying on earlier case law, including Fuller v. City of Oakland, the court explained that FEHA focuses on whether an employer’s response allows the effects of harassment to spill into the workplace and change working conditions. The issue is not whether the employer is responsible for private, off-duty conduct, but whether the employer failed to act reasonably once it was put on notice that the situation outside of work involving coworkers was affecting the work environment.
Although not addressed by the court in Kruitbosch, employers must also remain mindful of California Labor Code protections relating to lawful off-duty conduct, including Labor Code section 96(k). Employers generally may not take adverse action against employees for lawful activities occurring during nonworking hours and away from the workplace. FEHA does not require employers to police employees’ private lives or to discipline employees for lawful off-duty behavior. At the same time, FEHA does require employers to take reasonable steps to prevent harassment from affecting the workplace once they become aware of a problem. Also not addressed by the court in Kruitbosch, but a common problem in practice, is when off duty harassment is fasciliated because the harasser obtained an employee’s otherwise private contact information (like a cell phone number) through work using employer records, or the harassment is conducted through employer-provided resoures (like instant messaging applications), and a workplace nexus can be shown.
Kruitbosch does not mean employers must investigate and discipline employees for every off-duty incident, and it does not impose automatic liability for coworker conduct outside the workplace. However, the decision reinforces that employers have a duty to respond promptly, thoughtfully, reasonably, and effectively when complaints are brought to their attention that off duty conduct is adversely affecting the workplace. Ignoring complaints, dismissing them solely because they occurred off duty, or responding with sarcasm or ridicule increases legal risk under FEHA.
For California employers, Kruitbosch highlights an important lesson: even when alleged harassment occurrs off duty and outside of the workplace, the employer must nonetheless act responsibly and take reasonable steps to prevent and remedy its harmful impacts spilling into the work environment.