Off-the-Clock: What Employers Should Do When an Employee Complains about After Hours Misconduct
[Law Clerk Molly Thorpe contributed.]
Generally, a coworker’s misconduct outside of work does not constitute harassment under the Fair Employment and Housing Act (FEHA). However, management or Human Resources receiving complaints should not ignore such complaints, as evidenced in the recent California appellate court decision, Kruitbosch v. Bakersfield Recovery Services, (2025) 114 Cal. App. 5th 200.
In Kruitbosch, the plaintiff worked at Bakersfield Recovery Service (BRS), which provides treatment for recovering alcoholics and drug addicts. In October 2022, while on leave dealing with his partner’s passing, the Plaintiff’s co-worker, sent him multiple unsolicited nude pictures and stated she wanted to have sex with him. The Plaintiff explicitly rejected the advances. The co-worker even went to the Plaintiff’s home uninvited and attempted to solicit sex, departing only after leaving behind a cucumber with a condom attached. She later texted him inviting him to meet her at a motel.
When the Plaintiff returned to work, he reported the co-worker’s conduct to the acting manager and the Human Resources representative (HR). The manager informed Plaintiff “there was not much she could do.” Later that day, HR posted a video on social media depicting whining dogs, stating “this is a work day at [the] office.”
Later in the week, HR commented to plaintiff that she “hope[s] [the plaintiff] don’t get no more pictures.” At no point did either the manager or HR take any steps to separate plaintiff from his co-worker, nor did the employer take any disciplinary action as to the co-worker.
About a week after his return from leave plaintiff resigned from his position. Plaintiff then filed a lawsuit alleging, among other claims, sexual harassment in violation of FEHA and failure to prevent harassment.
The employer challenged the complaint and the trial court agreed with the employer reasoning that “simply being coworkers” is insufficient to impute liability to the employer and that one instance and one complaint is not pervasive enough to establish a harassment claim. The Appellate Court found differently.
An Employer’s Response May Create an Independent Hostile Work Environment Claim
While the Appellate Court agreed that the co-worker’s unwanted sexual advances were not work-related, it found that Plaintiff’s hostile work environment claim could move forward because BRS’ lack of action “could be viewed as having the effect of altering plaintiff’s work environment in an objectively severe manner.” In other words, the failure to investigate or take other remedial action, may be sufficient to support a hostile work environment claim, despite the alleged conduct being non-work related.
As Plaintiff stated a viable claim for harassment, the failure to prevent harassment claim could also move forward.
Next Steps for Employers
The court stated in a footnote, that “in reaching this conclusion, we are not suggesting FEHA mandates a specific response an employer must make to an employee complaint of harassment.”
Nevertheless, Kruitbosch demonstrates that responding seriously and promptly to an employee’s complaint is advisable. Ignoring an employee’s concern and later mocking it is never the correct approach in a workplace setting.
Employers should train their supervisors and Human Resources representatives to be receptive, professional, and empathetic to employee complaints. When in doubt – investigate.
Contact us with any workplace-related concerns, particularly those regarding harassment and discrimination claims by employees.
Sue M. Bendavid and Tal Burnovski Yeyni defend employers from harassment and discrimination claims. Molly K. Thorpe is a law clerk and recent graduate of Loyola Law School.