Coworker Off Site Actions Found Not to be Harassment But Employer Inaction After Complaint Contributed to Hostile Work Environment

09.11.2025

While several court decisions have addressed employer liability for supervisor harassment during non-working hours and off-premises conduct, the same issue with respect to coworkers has not been addressed by California courts until this week in the case of Kruitbosch v. Bakersfield Recovery Services, Inc. 2025 WL 2600238 (Cal Ct. App. BCV-23-101448, September 8, 2025).

Just the Facts

Steven Kruitbosch, a recovering drug addict, took a five-week leave of absence from his employer, Bakersfield Recovery Services (BRS), due to the passing of his long-term partner. During the leave, a coworker, Lisa Sanders, began sending Kruitbosch multiple unsolicited nude pictures and stated she wanted to have sex with him. Kruitbosch firmly rejected these advances. Sanders escalated her pursuit by visiting Kruitbosch’s home, uninvited, with another woman, and indicated she was there to have sex with Kruitbosch. Kruitbosch instructed them to leave him alone and to stop harassing him. Sanders eventually departed Kruitbosch’s property, but in the driveway, she left behind a cucumber with a condom attached. Later that same day, Sanders texted Kruitbosch and invited him to a hotel room to have sex, and stated, I have dope and “let me know if you want to f---.” She also sent plaintiff multiple sexual images, including her genitals, breasts and buttocks. Kruitbosch rejected these advances.

When Kruitbosch returned to work less than a week later, he immediately complained about Sanders to his supervisor, who replied that there was not much she could do about Sanders’ behavior because it occurred off property. The Human Resources representative, Kimberly Giles, was also informed of Sanders’ behavior. Later that day, Giles posted a video on social media depicting whining dogs and stated, “This is a work day at thr [sic] office ... lmbo [laughing my butt off].” Giles also later sarcastically told Kruitbosh, I hope you get no more pictures. Giles and BRS did nothing else to address Kruitbosch’s complaint.

Kruitbosch did his best to avoid Sanders, but BRS’ failure to protect him in the workplace, and Giles’ adding insult to injury by mocking him, resulted in such emotional trauma to Kruitbosch that he felt compelled to resign his position after only one week back.

Court Rationale

Unbelievably, the trial court and the California Court of Appeal found that while Sanders’ conduct was reprehensible, it was not sufficiently work-related to come within the ambit of the Fair Employment and Housing Act (FEHA). Therefore, BRS was not liable for the conduct of Sanders. The courts made this finding despite BRS’ trainings where it was made clear that sexual harassment off-the-clock was a violation of BRS policy.

The key analysis the courts must grapple with under such circumstances is whether the conduct is work-related. Kruitbosch maintained the conduct was work-related because Sanders was a coworker, and although they did not have a personal relationship outside of work, Sanders obtained his cell phone number and home address through work, and Kruitbosch reported the conduct at work. BRS argued that being coworkers and reporting nonwork-related conduct to BRS was not sufficient to establish a claim for sexual harassment.

Because no California court had addressed this issue, the court looked at federal cases and derived the following nondispositive factors to determine when harassment is work-related. The court considered whether the conduct was:

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
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 Sanders did not approach Kruitbosch at his home or contact him on his phone for work purposes, the sexual advances had nothing to do with work, and they did not occur in the context of a work-related event. In short, Sanders’ conduct did not involve work-related harassment.

Nevertheless, the court found that the BRS’ lack of response to Kruitbosch’s complaint about harassment occurring outside the physical workplace but within the digital workplace can independently create a hostile work environment. Kruitbosch’s supervisor’s statement that there was not much that could be done, could be viewed as having an unreasonable effect on an employee’s working environment, altering it in a severe manner. There was no investigation of Kruitbosch’s complaint, no admonition to Sanders to cease her conduct, and BRS took no steps to shield Kruitbosch from having to interact with Sanders unsupervised.

The court further found that Sanders’ use of Kruitbosch’s recovery status to leverage her sexual advances toward him and BRS’ refusal to take any action, could be viewed as altering Kruitbosch’s working environment in an objectively severe manner. Sanders’ use of this information arguably increased the severity of her unwelcome sexual advances, and BRS’ failure to take any action could reasonably be viewed as condoning Sanders’ harassing behavior and compromising the safety of Kruitbosch’s workplace environment for purposes of his sobriety. BRS’ failure to act resulted in Kruitbosch’s workplace becoming intolerable.

Employer Takeaways

Employers should consider the following in the aftermath of the Bakersfield Recovery Services decision:

All complaints of harassment must be investigated regardless of when and where the harassment occurred
Even when conduct does not rise to the level of harassment, employees should be reminded of proper behavior within and outside of the workplace
If an employee is bothered by another employee’s actions, there is no harm for an employer to alert the accused employee of the objectionable action, request that it stop, and separate the employees to the extent possible
All employers should have updated investigation, discrimination, harassment, and retaliation policies and procedures

Employers with questions surrounding whether certain behavior constitutes harassment, prevention of harassment and discrimination, or responding to complaints of harassment may contact the authors or their usual point of contact at AALRR.