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by Erika M. Barbara, J.D.; Senior Employment Law Counsel, CalChamber
Recently, a California Court of Appeal held that, although an employee could not allege a claim for sexual harassment based on a coworker’s off-duty, nonwork-related sexual conduct, their claim could be based on the employer’s response to that conduct.
In the case, the court found that the coworker’s conduct was not sufficiently work-related to hold the employer liable. But it also found that the employer’s refusal to investigate or address the alleged conduct — along with an HR representative’s jokes about it — was enough for the employee to file a claim for hostile work environment harassment (Kruitbosch v. Bakersfield Recovery Services, Inc., No. F087809, Sept. 8, 2025)).
Steven Kruitbosch worked as an assistant corporate compliance officer for Bakersfield Recovery Services, Inc. (BRS), which provides substance abuse treatment to recovering alcoholics and drug addicts. He worked with Lisa Sanders, a case manager at BRS, and the two typically interacted several times a week — sometimes as often as every day. Kruitbosch was sober and, like other employees at BRS, was open about his recovery as part of his employment.
In early 2023, Kruitbosch took leave under the California Family Rights Act (CFRA) after his long-time partner passed away. A week before Kruitbosch was scheduled to return to work, he alleges that Sanders and a friend showed up at his house uninvited and Sanders told Kruitbosch that she was there to have sex with him. Kruitbosch told her to leave and to stop harassing him, but Sanders reiterated her desire to have sex with him. Sanders eventually left Kruitbosch’s house but not without leaving behind a cucumber with a condom attached on the driveway. Later that day, Kruitbosch alleges that Sanders texted him and invited him to a hotel room to have sex, saying “I’m at the sleep inn & suites and I have dope … let me know if you want to f***.” She also sent unsolicited sexual images to Kruitbosch of her genitals, breasts and buttocks.When Kruitbosch returned from his leave, he immediately complained about Sanders’ conduct to the acting program director, Stephanie Carroll. Kruitbosch alleges that Carroll told him that she couldn’t do much about Sanders’ behavior. He also alleges that an HR representative, Kimberly Giles, was made aware of the complaint, and later that day, Giles posted a video on social media of whining dogs with the comment “This is a work day at thr [sic] office … lmbo.” Later that week, Giles sarcastically commented to Kruitbosch that she hoped he “don’t get no more pictures.”
Kruitbosch alleges that after he made his complaint, neither Carroll nor Giles took any action in response to the complaint. They did not:
Kruitbosch alleges his employment became “unbearable,” and he went to great lengths to avoid contact with Sanders. He also alleges that he experienced extreme distress, was fearful he would be forced to see Sanders, and was angry and humiliated that Sanders was free to continue harassing him because BRS didn’t condemn her actions. He resigned a week later, alleging that staying would harm his mental health, grief recovery process and sobriety.
After resigning, Kruitbosch sued BRS and Sanders, alleging a variety of claims that included hostile work environment, sexual harassment and failure to prevent harassment. BRS challenged the complaint, asking the court to dismiss it on the grounds that Kruitbosch failed to allege sufficient facts to establish his claims.
The trial court sustained BRS’s challenge without leave to amend and dismissed all but two of Kruitbosch’s claims, which he later dismissed. He then appealed.
On appeal, the Court of Appeal reversed the lower court’s dismissal of Kruitbosch’s sexual-harassment hostile work environment claim, holding that he did in fact plead sufficient facts to establish that claim.
To reach that conclusion, the court examined both Sanders’ conduct toward Kruitbosch (the off-duty sexual advances) and BRS’s response to Sander’s complaint about that conduct. It concluded that BRS’s response — not Sanders’ conduct — could support the harassment claim.
Since Sanders was Kruitbosch’s coworker (as opposed to his supervisor), BRS’s potential liability for her conduct is determined under a negligence standard, which considers whether the employer knew or should have known of the conduct and failed to act. The court noted that it was not aware of any cases under California’s Fair Employment and Housing Act (FEHA) that address whether an employer can be liable for the harassing conduct of a nonsupervisory coworker away from the workplace. So, it turned to analogous federal authority, where the court found persuasive guidance that the work-related nature of coworker harassment should be examined under a “totality of the circumstances” standard.
The court then examined Sanders’ conduct, noting that Kruitbosch did not allege that Sanders went to Kruitbosch’s home for work-related reasons, and that Sanders’ conduct had nothing to do with work and did not occur through an employer-sanctioned modality (like a company cell phone or email) or in the context of a work-related event. According to the court, just because Sanders and Kruitbosch worked together doesn’t alone make Sanders’ conduct work-related. In addition, Kruitbosch did not allege that the conduct continued in the workplace when he returned to work.
The court concluded that Sanders’ conduct could not support Kruitbosch’s harassment claim because the conduct — which occurred off-duty and away from the workplace — was not sufficiently work-related. As the court explained, “while thoroughly repugnant,” Sanders’ conduct did not “involve work-related harassment.”
Even though Sanders’ conduct could not support Kruitbosch’s harassment claim, that was not the end of the story — because an employer’s response to harassment occurring outside the workplace can independently create a hostile work environment.
The court examined BRS’s response to Kruitbosch’s complaint about Sanders, including Kruitbosch’s allegations that Carroll dismissed his complaints, saying they couldn’t do much, and Giles’ mocking and sarcastic comments to him and on social media. The court found that the response from Carroll and Giles could be reasonably viewed as sending a message that:
As a result, Kruitbosch was left on his own to navigate his working relations with Sanders, which he alleged caused him to experience extreme distress and fear.
Considering the totality of the circumstances, the court held that Kruitbosch’s sexual-harassment hostile work environment claim was viable based on the theory that BRS’s response to Kruitbosch’s complaint altered his work environment in an objectively severe manner. The court reversed the lower court’s dismissal of his harassment and failure to prevent harassment claims, which Kruitbosch will have the opportunity to pursue before the trial court.
Even though the court found that the off-duty conduct in this case did not support a claim for workplace harassment, employers cannot ignore harassing conduct just because it occurs outside the workplace. All complaints of harassment must be properly investigated to decide what corrective action, if any, is needed. If harassing conduct occurred outside of work — whether at a work-related event, a non-work function or even on social media — but is impacting the workplace, it needs to be addressed.
In addition, as this case shows, a failure to properly respond to a harassment complaint can in and of itself create a hostile work environment. Employers should ensure that all management, supervisors and HR employees are properly trained on how to respond to complaints, and that complaints receive a prompt, thorough and unbiased investigation.