Court of Appeal holds employer response to off-site harassment may create hostile work environment: Kruitbosch v. Bakersfield Recovery Services, Inc.

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In Kruitbosch v. Bakersfield Recovery Services, Inc. (2025) 114 Cal.App.5th 200, the Court of Appeal (Fifth Appellate District) held that a sexual harassment hostile work environment claim was cognizable based on the employer’s response to Plaintiff’s complaints, even though the harassment was not sufficiently work-related under FEHA. 

While Plaintiff was on CFRA leave, a coworker sent him unsolicited sexual messages and nude photos, made an uninvited visit to his home stating she was there to have sex with him, and left a cucumber in his driveway covered by a condom. Upon his return to work, Plaintiff immediately complained to Defendant’s HR. The HR representative responded with a social media post and remark mocking Plaintiff, and took no action against the harasser. Plaintiff resigned the next week and sued for hostile work environment sexual harassment, discrimination, retaliation, and constructive termination, among other claims. The trial court sustained Defendant’s demurrer, finding the harassment was not “attributable to” Defendant and that no adverse action was taken. Plaintiff appealed.

The Court of Appeal reversed the dismissal of Plaintiff’s harassment and failure to prevent claims but affirmed the dismissal of his other claims. The court noted a lack of FEHA precedent on the imputability of off-site, non-supervisor conduct and looked to analogous federal Title VII authority, which examines the “work-related nature of conduct under the totality of the circumstance.” The court found the harassing conduct itself was not work-related, as the only connection was that the harasser was a coworker and Plaintiff’s report did not retroactively make the conduct work-related. However, following Fuller v. Idaho Department of Corrections (9th Cir. 2017) 865 F.3d 1154, it held that “an employer’s response to harassment occurring outside the physical or digital workplace can independently create a hostile work environment,” reversing the dismissal of Plaintiff’s harassment and failure to prevent harassment claims.

The Court of Appeal affirmed the dismissal of Plaintiff’s constructive discharge claim, finding he did not face additional harassment after his return to work and that quitting was not his only available option. It further held that Defendant’s inaction itself did not constitute an adverse employment action, distinguishing cases where harassing conduct occurred after an employer’s inaction (Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994) or where HR conduct foreclosed the plaintiff’s ability to use the HR process (Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611). Because Plaintiff did not suffer adverse employment actions, his discrimination and retaliation claims also failed. Notably, the court emphasized that its decision was grounded in the factual inquiry required to assess whether the employer’s response altered the work environment in an objectively severe manner, which was deemed inappropriate for resolution at the pleading stage. 

Full opinion

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