On September 8, 2025, the California Court of Appeal (Fifth District) issued its decision in Kruitbosch v. Bakersfield Recovery Services, Inc., 2025 WL 2600238, defining the boundaries of California’s Fair Employment and Housing Act (the “FEHA”) liability for off-duty harassment and emphasizing the importance of an employer’s robust response.
In Kruitbosch, the plaintiff (a male employee) was sexually harassed by a female coworker outside regular working hours. While the plaintiff was on bereavement leave, this female coworker sent him unsolicited nude images, appeared at the plaintiff’s home uninvited to proposition him for sex, and offered him drugs despite knowing the plaintiff was in recovery. The employer argued that the FEHA does not apply to this off-duty conduct because it was not “work related.”
Off-Duty Coworker Conduct Was Not Work-Related
The Court identified four factors for determining when off-duty conduct is “work related” under the FEHA, holding that even conduct outside the workplace may be covered when it occurs:
- Through a work channel or setting paid for, hosted by, or provided by the employer;
- During an employer-arranged or -approved activity or circumstance;
- In a context that benefits the employer; or
- In a work-related social setting where employees are expected to interact.
Employer’s Response (or Lack Thereof) Can Create a Hostile Work Environment
Although the harassment endured by the plaintiff in this case was found not to be work-related and therefore not actionable under the FEHA, the Court held that the employer’s dismissive and mocking response to the plaintiff’s complaint could independently create a hostile work environment.
For instance, after the plaintiff reported the conduct, the employer took no steps to investigate, to separate the employees, or to ensure the behavior would not continue. Instead, the employer’s HR representative (who received the plaintiff’s report) mocked the plaintiff’s complaint, both in person and publicly on social media. By dismissing the report and ridiculing the plaintiff, the employer effectively ratified the harasser’s conduct through inaction.
Avoiding Ratification: Best Practices for HR
Employers faced with similar complaints should take every report seriously, even if the alleged misconduct occurred off-site or after hours. Best practices would include promptly documenting the complaints, conducting a good-faith investigation, maintaining confidentiality to the extent possible, and taking reasonable steps to prevent further interaction between the employees involved. HR and management should avoid minimizing, joking about, or publicly discussing the allegations.
Taking such complaints seriously and responding in good faith may satisfy an employer’s duty under the FEHA to prevent harassment and helps to avoid employer liability.
Click here to access the Court of Appeal’s decision in Kruitbosch v. Bakersfield Recovery Services, Inc.
If you have questions about off-duty harassment, call 916-612-0326 or email ([email protected]) Finley Employment Law today. Finley Employment Law serves clients throughout California, including Sacramento, Roseville, Davis, Folsom, and Elk Grove.
The information in this blog post is for general informational and advertising purposes only and is not, nor is it intended to be, legal advice. Instead, you should speak with a California employment attorney for advice regarding your individual situation.