A coworker at a plaintiff’s job allegedly subjected him to crude sexual advances at his home and on his personal cell phone away from his work. When he reported this to management, he was told there was nothing that could be done because it happened off the office property.
Background
The employer in this case provides substance abuse treatment to recovering alcoholics and drug addicts. In 2019, the plaintiff started working there, and at various times during his employment, he attended sexual harassment trainings that made clear even sexual harassment off the clock was a violation of the employer’s policies. His co-worker was a case manager and one of the plaintiff’s coworkers. The plaintiff was technically above her in the employer’s chain of command and was responsible for training her, ensuring her file was up to date with current trainings, answering questions she had about client care, and overseeing the new the employer site where she worked.
The plaintiff and the co-worker didn’t have any type of relationship outside of work—they had contact through text messages only for work-related purposes, and the co-worker knew where the plaintiff lived only through work. During an average week, they’d interact about two to three times, but, depending on the circumstances, sometimes on a daily basis. The plaintiff’s duties required him to visit the co-worker’s worksite, while the co-worker had to visit the plaintiff’s worksite about once per week as part of her duties. When the plaintiff began overseeing the new construction, which was at the employer’s location where the co-worker performed her job, the plaintiff had to interact with the co-worker more frequently.
In October 2022, the co-worker started sending him multiple unsolicited nude pictures and stating she wanted to have sex with him. The plaintiff firmly rejected these advances. The co-worker then went to the plaintiff’s home uninvited and said that she was there to have sex with him. The plaintiff her to leave him alone and to stop harassing him.
When the plaintiff returned to work, he immediately complained to the acting program director and his supervisor about the co-worker’s conduct. An HR representative was also made aware that the co-worker had sent the plaintiff nude photos, propositioned him for sex, offered him drugs, and visited his house. The plaintiff’s supervisor told the plaintiff that there wasn’t much she could do about the co-worker’s behavior. Meanwhile, later that day, the HR rep posted a video on social media depicting whining dogs and stated, “‘This is a work day at thr [sic] office … lmbo.’” (Italics omitted.) Later in the week, the HR representative sarcastically commented to the plaintiff, “‘I hope you don’t get no more pictures.’” At no point did either the plaintiff’s supervisor or the HR representative take any steps to separate the plaintiff from the co-worker or prevent future harassment; nor did the employer take any disciplinary action as to the co-worker.
In May 2023, the plaintiff filed a discrimination lawsuit against the employer and the co-worker. The trial court sustained the employer’s demurrer without leave to amend. The court wasn’t persuaded that the individuals met through their work relationship which meant that any communications or any interaction that extended beyond that as a result of their introduction through the workplace was attributable to the employer. Following the trial court’s ruling, the plaintiff appealed.
The Court of Appeal Decision
Judge Kathleen Mehan explained that the Fair Employment and Housing Act (FEHA) prohibits sexual harassment in the workplace. Specifically, it makes it an unlawful for an employer to harass an employee because of the employee’s “sex, gender, gender identity, gender expression, … [or] sexual orientation … .” The prohibition against sexual harassment includes protection from a broad range of conduct, including the creation of a work environment that is hostile or abusive on the basis of sex. Prohibited harassment includes verbal, physical, and visual harassment, as well as unwanted sexual advances. The court must examine the totality of the circumstances, which may include:
- The frequency of the discriminatory conduct;
- Its severity;
- Whether it is physically threatening or humiliating, or a mere offensive utterance; and
- Whether it unreasonably interferes with an employee’s work performance.
The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position. In addition, the plaintiff must establish the offending conduct was imputable to [his or] her employer. Sexual harassment in a workplace is imputable to an employer in two situations: (i) when the harasser is a supervisor, the employer is strictly liable for the supervisor’s actions; and (ii) when the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence.
In sum, to prevail on a claim of hostile work environment under FEHA, an employee must establish he or she was subjected to harassing conduct that was (i) unwelcome, (ii) because of sex or gender, and (iii) sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment. And the plaintiff also must show the harassing conduct is, in some fashion, work related.
Were the Co-Worker’s Unwanted Sexual Advances Work-Related?
The trial court concluded that the co-worker’s harassing conduct wasn’t sufficiently work related to fall within the scope of FEHA and, in any event, the conduct wasn’t sufficiently pervasive or severe. The plaintiff argued that the trial court erred with respect to the work-related nature of the co-worker’s conduct because:
- The co-worker was the plaintiff’s coworker;
- They didn’t have a personal relationship outside of work;
- They communicated primarily about work-related matters;
- The co-worker obtained the plaintiff’s cell phone number and home address only through work; and
- The plaintiff reported the conduct at work.
The employer argued that the allegations were limited to the co-worker’s afterhours conduct and away from the employer’s premises, beyond the scope of FEHA. The employer maintained that the co-worker’s conduct was entirely unrelated to either employee’s work for the employer and wasn’t actionable simply because the plaintiff and the co-worker were employees of the employer or because the plaintiff reported the co-worker’s nonwork-related conduct to the employer.
Judge Mehan wrote that where the conduct at issue occurred off-site and/or during nonworking hours, the question of whether the employer is strictly liable for a supervisor’s conduct tends to overlap with whether the conduct was sufficiently work related. Specifically, if the supervisor is, in some fashion, acting in his or her capacity as supervisor (or misusing his or her supervisory powers) when the conduct occurs—necessary for imputability to the employer—then the harassing conduct is inevitably going to be work related.
Here, there were no allegations that the co-worker approached the plaintiff at his home or contacted him on his cell phone on March 3, 2023 for any work-related purpose, even pretextually. The co-worker’s unwanted sexual advances themselves had nothing to do with work—they didn’t happen in the context of a work-related event, arise from circumstances approved, sanctioned or paid for by the employer, or derive from work-related social circumstances where employees would foreseeably interact and socialize. The mere fact the co-worker and the plaintiff knew each other only through work didn’t make the co-worker’s conduct toward the plaintiff work related any more than if she had surreptitiously followed him home from the workplace one day.
Did the Employer’s Failure to Act and the HR representative’s Conduct Create a Hostile Work Environment?
The Court of Appeal noted that an employer’s response to harassment occurring outside the physical or digital workplace can independently create a hostile work environment. The plaintiff argued that the HR representative’s comment and social media post mocking him, in conjunction with the employer’s ratification of the co-worker’s conduct through inaction, materially altered his working conditions. The plaintiff contended that his working conditions were materially altered when his supervisor made clear that the employer wouldn’t be taking any action in response to his complaint. He worked in a state of anxiety and feared that his coworkers and supervisors would continue to mock his complaints as the HR representative had done. He also said he went to great lengths to avoid the co-worker in the workplace. All of this together, the plaintiff claimed, dramatically interfered with his ability to do his job and constituted a hostile work environment.
The plaintiff argued that the Complaint provided ample facts to support a viable claim for hostile work environment based on the HR representative’s and the plaintiff’s supervisor’s collective actions and inactions. He said that the supervisor and the HR representative’s actions “condoned and cemented” the effects of the co-worker’s harassing conduct, affecting his ability to effectively perform his job. But Judge Mehan said that the working environment must be evaluated in light of the totality of the circumstances, the Court said. These may include:
- The frequency of the discriminatory conduct;
- Its severity;
- Whether it is physically threatening or humiliating, or a mere offensive utterance; and
- Whether it unreasonably interferes with an employee’s work performance.
Accepting the truth of the SAC’s allegations at the demurrer stage, and considering the totality of the circumstances, the Court couldn’t conclude as a matter of law that the plaintiff’s supervisor’s inaction and the HR representative’s comments, collectively, couldn’t alter the plaintiff’s working environment in an objectively severe manner. A reasonable person in the plaintiff’s circumstances could understand from such a response that it wasn’t that the co-worker’s conduct occurred off-site which prevented the employer from acting, but that—
- The employer viewed what she had done as not serious;
- The plaintiff, as a man, should not be affected by sexual advances from a woman; and
- The plaintiff’s well-being in the workplace was of no import to the employer.
His constant state of heightened anxiety interfered with the plaintiff’s ability to do his job as simple tasks became arduous, and his attention to detail began to wane. Moreover, he alleged the HR representative’s mocking and sarcastic comments compounded the effect of his supervisor’s refusal to take any action. Due to the HR representative’s status, her sarcastic response to the plaintiff about the nude photographs and her social media post could be viewed as more than merely an isolated instance of simple teasing. Judge Mehan said that the reaction of the HR representative and the supervisor together, could be reasonably viewed as sending a message that the employer wasn’t concerned about the co-worker’s conduct toward the plaintiff; that unwanted sexual advances, including those that threatened the plaintiff’s sobriety, were acceptable; and that the plaintiff wasn’t warranted in asking the employer to address it to ensure his workplace was harassment free.
In the context of their aggravated nature and the co-worker’s use of the plaintiff’s recovery status to leverage her sexual advances toward him, the Court concluded that the employer’s refusal to take any action could be viewed as altering the plaintiff’s working environment in an objectively severe manner. Given the allegations, the severity inquiry was factual in nature and not appropriate for resolution at the pleading stage. As a result, the Court of Appeal found that the plaintiff stated a cognizable sexual harassment hostile work environment claim and for failure to prevent harassment, and the trial court’s ruling sustaining the employer’s demurrer as to these claims was reversed.
The Court of Appeal reversed the trial court’s rulings sustaining the employer’s demurrer as to the plaintiff’s claims for sexual harassment hostile work environment and for failure to prevent harassment. The Court affirmed the ruling sustaining the employer’s demurrer as to the plaintiff’s remaining claims for sex/gender discrimination and retaliation in violation of FEHA; retaliation in violation of Labor Code section 1102.5; constructive termination in violation of public policy; and negligent hiring, supervising or retention. The Court ordered the plaintiff to amend his Complaint to present his allegations under the theory of hostile work environment sexual harassment consistent with this opinion. To that end, the Court said that the plaintiff’s amendment may include additional allegations regarding the imputability of the plaintiff’s supervisor’s and the HR representative’s actions to the employer under the relevant standard. Kruitbosch v. Bakersfield Recovery Services, Inc. (California Court of Appeal, 5th Appellate District, 9/8/2025).
Bottom Line
Employers should be aware that an employee’s complaint alleging unwelcome sexual advances by a coworker outside the workplace may state a claim for sexual harassment hostile work environment under Government Code, § 12940(j)(4)(C), despite the fact that the coworker's alleged conduct was insufficiently related to the workplace to be imputable to the employer. The Court found that the employer's response of inaction altered the work environment in an objectively severe manner which was a factual inquiry not appropriate for resolution at the pleading stage.