In Kruitbosch v. Bakersfield Recovery Services, Inc., the California Court of Appeal—for the first time—addressed the issue of employer liability for harassment by a non-supervisory co-worker during non-working hours and off-premises conduct.
A coworker (Lisa Sanders) of plaintiff Steven Kruitbosch allegedly subjected him to crude sexual advances at his home and via his personal cell phone away from the premises of their employer, Bakersfield Recovery Service, Inc. (BRS). Specifically, Sanders sent Kruitbosch multiple unsolicited nude pictures, showed up uninvited to his house, and repeatedly propositioned him for sex. When Kruitbosch reported the conduct to Human Resources, the HR rep told him there was nothing that could be done, ostensibly because the alleged activity occurred off work premises.
The HR rep later posted a video on social media depicting whining dogs and stated, “‘This is a workday at thr [sic] office . . . lmbo[,]’” which Kruitbosch understood to be mocking him. The HR rep also sarcastically commented to Kruitbosch, “‘I hope you don’t get no more pictures[,]’” presumably referring to the unsolicited nude pictures sent by Sanders to plaintiff. At no point did anyone at BRS take any steps to separate Kruitbosch from Sanders or to prevent further harassment—nor did BRS initiate any disciplinary action against Sanders. Although Kruitbosch made efforts to avoid Sanders at work, his distress at the prospect of interacting with her coupled with BRS’s failure to protect him in the workplace and mocking him for his complaint allegedly detracted from his work duties and made continuing his employment feel impossible; Kruitbosch resigned a week later…