Kruitbosch v. Bakersfield Recovery Services, Inc.

Facts

The California Fair Employment and Housing Act (FEHA) makes it “an unlawful employment practice for an employer … to harass an employee” because of the employee’s “sex, gender, gender identity, gender expression, … [or] sexual orientation.” (Gov. Code, § 12940, subd. (j)(1); Kruitbosch, supra, 114 Cal.App.5th at p. 211.) Whether the harassing conduct is that of a supervisor or a coworker, and whether it occurs on or off the worksite, the plaintiff must ultimately show conduct that was unwelcome, because of sex, and “sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment,” that is “in some fashion, work related,” and that is “imputable to the employer under the applicable standard.” (Id. at p. 213.)

Bakersfield Recovery Services, Inc. (BRS) “provides substance abuse treatment to recovering alcoholics and drug addicts.” (Kruitbosch, supra, 114 Cal.App.5th at p. 207.) Plaintiff Steven Kruitbosch began working there in 2019 as an assistant corporate compliance officer, overseeing client services, staff documentation, and facilities, and training staff. (Ibid.) Lisa Sanders was a case manager and one of plaintiff’s coworkers; plaintiff was “technically above her in [BRS’s] chain of command” and was responsible for training her and overseeing the site where she worked. (Id. at pp. 207–208.) The two “did not have any type of relationship outside of work,” communicated “only for work-related purposes,” and Sanders “knew where plaintiff lived only through work.” (Id. at p. 207.) Many BRS employees, plaintiff included, were themselves in recovery, and most coworkers — Sanders among them — “knew plaintiff was sober after having struggled with drug addiction.” (Id. at p. 208.)

In October 2022 plaintiff’s longtime partner died, and he took California Family Rights Act leave beginning February 1, 2023, scheduled to return March 7, 2023. (Kruitbosch, supra, 114 Cal.App.5th at p. 208.) In the week before his return, Sanders “began sending plaintiff multiple unsolicited nude pictures and stating she wanted to have sex with him”; plaintiff “firmly rejected these advances.” (Ibid.) On March 3, 2023, Sanders “went to plaintiff’s home uninvited and brought a friend,” told him she was there to have sex, and — after being told to leave — left “a cucumber with a condom attached” in his driveway. (Ibid.) That same day she texted him an invitation to a hotel room, telling him she had “‘dope,’” and sent additional sexual images. (Ibid.) Plaintiff again rejected her. (Ibid.) The court noted the significance of the drug reference: Sanders “drew on plaintiff’s status as a recovering addict” — information he had revealed at work — “to again proposition him for sex,” arguably “compounding the pressure she was placing on plaintiff.” (Id. at pp. 222–223.)

When plaintiff returned to work on March 7, 2023, he “immediately complained to the acting program director, Stephanie Carroll,” and HR representative Kimberly Giles was made aware that Sanders “had sent plaintiff nude photos, propositioned him for sex, offered him drugs, and presented herself at his house.” (Kruitbosch, supra, 114 Cal.App.5th at p. 208.) Carroll “informed plaintiff that there was not much she could do about Sanders’s behavior.” (Ibid.) Later that day Giles “posted a video on social media depicting whining dogs” with a caption plaintiff understood to mock him, and later in the week she “sarcastically commented to plaintiff, ‘I hope you don’t get no more pictures.’” (Ibid.) “At no point did either Carroll or Giles take any steps to separate plaintiff from Sanders or prevent future harassment; nor did BRS take any disciplinary action as to Sanders.” (Ibid.) Plaintiff went to “great lengths to avoid contact with Sanders,” calling ahead to learn whether she was at a worksite before he traveled there, and “experienced extreme distress.” (Id. at pp. 208–209.) He resigned on March 13, 2023. (Id. at p. 209.)

Procedural history

Plaintiff sued BRS and Sanders and, after an earlier demurrer, filed the operative second amended complaint (SAC) alleging nine claims against BRS, including hostile-work-environment sexual harassment (§ 12940, subd. (j)), sex/gender discrimination (§ 12940, subd. (a)), retaliation (§ 12940, subd. (h)), failure to prevent harassment, discrimination, or retaliation (§ 12940, subd. (k)), whistleblower retaliation (Lab. Code, § 1102.5), and constructive termination in violation of public policy. (Kruitbosch, supra, 114 Cal.App.5th at pp. 209–210.) The trial court sustained BRS’s demurrer to the SAC “without leave to amend,” reasoning that conduct arising from a workplace introduction was not automatically “attributable to [BRS],” that there was no adverse employment action, and that the single complaint did not describe a “pervasive situation.” (Id. at pp. 210, 213.) Plaintiff dismissed his two records claims and appealed. (Id. at p. 210.)

The Court of Appeal “reverse[d] in part and affirm[ed] in part.” (Kruitbosch, supra, 114 Cal.App.5th at p. 207.) It reversed the demurrer as to the sexual-harassment hostile-work-environment claim and the derivative section 12940(k) failure-to-prevent claim, and affirmed as to the remaining claims — sex/gender discrimination, retaliation, Labor Code section 1102.5 retaliation, constructive termination, and negligent hiring, supervision, or retention. (Id. at pp. 224–225.) The opinion is certified for partial publication; only the Introduction, Factual Background, parts I. and V. of the Discussion, and the Disposition are published (Cal. Rules of Court, rules 8.1105(b), 8.1110). (Id. at p. 200.) The analysis that follows rests only on the published portions.

Issue

Two questions frame the published analysis. First: where a nonsupervisory coworker directs unwelcome sexual advances at an employee entirely away from the worksite and during off hours, is that conduct “work related” and imputable to the employer so as to be actionable under FEHA? Second: independent of the coworker’s own conduct, can the employer’s response to the employee’s complaint — a refusal to act, coupled with mockery — itself “alter the working environment in an objectively severe manner” and thereby state a hostile-work-environment claim? (Kruitbosch, supra, 114 Cal.App.5th at pp. 213, 220.) Because the case arose on demurrer, the court decided only whether the SAC alleged “facts sufficient to state a cause of action under any possible legal theory,” not whether plaintiff would prevail. (Id. at p. 224.)

Holding

Reasoning

1. The framework and the two channels of employer liability. The court began with settled FEHA hostile-environment principles, drawn from Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611 and Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264: the environment is “evaluated in light of the totality of the circumstances,” the “required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct,” and objective severity is “judged from the perspective of a reasonable person in the plaintiff’s position.” (Kruitbosch, supra, 114 Cal.App.5th at pp. 211–212.) A plaintiff must also show the conduct is imputable to the employer, and “[s]exual harassment in a workplace is imputable to an employer in two situations.” (Id. at p. 212, quoting Carranza v. City of Los Angeles (2025) 111 Cal.App.5th 388, 401.) When the harasser is a supervisor “acting in the capacity of supervisor,” the employer is strictly liable; when the harasser is “a nonsupervisory employee, employer liability turns on a showing of negligence” — that the employer “knows or should have known of th[e] conduct and fails to take immediate and appropriate corrective action.” (Id. at p. 212, quoting Bailey, supra, 16 Cal.5th at p. 635, and § 12940, subd. (j)(1).) Sanders was a coworker, so the negligence channel governed.

2. Sanders’s off-site advances were not work related. Because “the harassing conduct need not occur in the workplace,” but “must occur in a work-related context,” the dispositive question was whether Sanders’s home and cell-phone conduct bore a sufficient nexus to work. (Kruitbosch, supra, 114 Cal.App.5th at p. 212.) Finding “no FEHA cases” addressing whether a nonsupervisory coworker’s off-site conduct is imputable, the court turned to Title VII authority. (Id. at pp. 217–218.) Surveying Ferris v. Delta Air Lines (2d Cir. 2001) 277 F.3d 128, Lapka v. Chertoff (7th Cir. 2008) 517 F.3d 974, and the court’s own supervisor cases, it distilled nondispositive factors: whether the conduct occurred in a venue “paid for or hosted by the employer,” in circumstances the employer “arranged, sanctioned or approved,” in a context from which the employer derived a benefit, or in “employment-related social circumstances where it would be expected that employees would interact and socialize.” (Id. at pp. 218–219.) Quoting the Ninth Circuit’s decision in Okonowsky v. Garland (9th Cir. 2024) 109 F.4th 1166, the court emphasized that “the relevant question is not whether the harassing conduct occurred on or off the physical or digital worksite,” but whether it “had an unreasonable effect on the working environment.” (Id. at p. 219.) On the allegations, none of the factors was met: Sanders’s advances did not occur through a workplace modality, at a work event, or in work-related social circumstances, and “[t]he mere fact Sanders and plaintiff knew each other only through work does not make Sanders’s conduct toward plaintiff work related.” (Id. at pp. 218–219.) Nor did plaintiff’s later report “retroactively render[] her conduct work related.” (Id. at p. 220.) “While thoroughly repugnant, the allegations regarding Sanders’s conduct do not involve work-related harassment.” (Ibid.)

3. The pivotal move: the employer’s response is independently actionable. The court did not stop there: “That is not the end of the inquiry, however, because plaintiff alleges his employer’s response to his complaint about Sanders’s conduct unreasonably affected his working environment.” (Kruitbosch, supra, 114 Cal.App.5th at p. 220.) Directing supplemental briefing, it adopted the reasoning of Fuller v. Idaho Dept. of Corrections (9th Cir. 2017) 865 F.3d 1154, where an employer’s handling of an employee’s report of an off-site rape by a coworker — publicly siding with the accused, denying the victim leave, forcing her back to work — could itself “‘allow[] the effects of the rape[s] to permeate [her] work environment and alter it irrevocably.’” (Id. at pp. 220–221, quoting Fuller, supra, 865 F.3d at p. 1164.) From that authority — and Little v. Windermere Relocation, Inc. (9th Cir. 2001) 301 F.3d 958 — the court drew the governing proposition: “An employer’s response to harassment occurring outside the physical or digital workplace can independently create a hostile work environment.” (Id. at p. 220.)

4. On these allegations, the response could alter the environment in an objectively severe manner. Applying the totality-of-the-circumstances test at the pleading stage, the court held that “Carroll’s inaction and Giles’s comments, collectively,” could not be found insufficient as a matter of law. (Kruitbosch, supra, 114 Cal.App.5th at p. 222.) Sanders’s advances were “aggravated and extreme” — she appeared at the home of a grieving employee on leave and exploited his disclosed recovery status — and against that backdrop, Carroll’s statement that “there was not much that could be done,” with “no investigation,” “no admonition to Sanders,” and no steps “to shield plaintiff from having to interact with Sanders,” “could be viewed as having an unreasonable effect on plaintiff’s working environment.” (Id. at pp. 222–223.) Because Giles was the HR representative, “her sarcastic response … and her social media post can be viewed as more than merely an isolated instance of simple teasing,” together signaling that BRS “was not concerned about Sanders’s conduct” and that plaintiff’s complaint “were a literal joke to BRS.” (Id. at pp. 223–224.) The court expressly aligned the analysis with its companion decision in Carranza, where an employer’s refusal to intervene “spoke not only to the sufficiency of the employer’s response … but also to the ‘severity of the harassment itself and the impact on’” the victim’s work environment. (Id. at p. 224, quoting Carranza, supra, 111 Cal.App.5th at p. 404.)

5. The demurrer standard carried the day — even for a theory raised late. The court underscored that on a general demurrer it must decide “whether the complaint alleges ‘facts sufficient to state a cause of action under any possible legal theory,’” a standard that “encompasses a legal theory presented for the first time in an opening appellant’s brief” and even one “first raised by the reviewing court.” (Kruitbosch, supra, 114 Cal.App.5th at p. 224, quoting City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 870, and Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1244–1245.) Although the employer-response theory was explored only in supplemental briefing the court itself directed, the claim was “viable,” and the court instructed that “plaintiff’s complaint should be amended to organize the allegations pursuant to this cognizable theory.” (Ibid.) The section 12940(k) failure-to-prevent claim, “dependent upon a viable claim for harassment,” survived with it. (Id. at p. 207.)

Significance

Kruitbosch is a pleading-stage decision, but a doctrinally consequential one: it confirms, as a matter of published California authority, that an employer’s response to a harassment complaint can be an independent source of hostile-work-environment liability, even when the underlying conduct is neither work related nor imputable. The move matters because it decouples two questions that defendants routinely conflate. That a coworker’s off-site conduct falls outside FEHA does not end the analysis; the employer’s handling of the complaint — ratification, dismissiveness, or, as here, open mockery from HR — is a distinct set of workplace events, occurring squarely inside the workplace, that a factfinder may weigh under the totality of the circumstances. In reaching that result the Fifth District expressly imported the Ninth Circuit’s framework from Fuller and Okonowsky into FEHA, reinforcing the pattern of California courts looking to Title VII authority where FEHA is silent, and it paired itself with the Second District’s contemporaneous decision in Carranza v. City of Los Angeles — the two now stand together for the proposition that the employer’s reaction bears on “the severity of the harassment itself.” (Kruitbosch, supra, 114 Cal.App.5th at p. 224.)

The decision’s reach is deliberately bounded. It holds only that the SAC states a claim; it does not find liability, does not resolve severity, and does not decide whether Carroll’s and Giles’s conduct is imputable to BRS. And the court cautioned, in footnote 8, that it was “not suggesting FEHA mandates a specific response an employer must make to an employee complaint of harassment.” (Kruitbosch, supra, 114 Cal.App.5th at p. 224, fn. 8.) Because only Parts I and V of the Discussion are published, the opinion’s treatment of the discrimination, retaliation, and constructive-discharge claims — which were affirmed — carries no citable rationale; the published holding is confined to the harassment and failure-to-prevent theories.

Key quotes

“[A]lthough Sanders’s alleged conduct was reprehensible, it was not sufficiently work related within the ambit of FEHA, and it did not recur inside the workplace. Her underlying conduct is not imputable to BRS, and the claim is not cognizable on that basis. Nevertheless, the sexual harassment hostile work environment claim is viable based on a theory that BRS’s response to plaintiff’s complaint about Sanders’s conduct altered plaintiff’s work environment in an objectively severe manner.” (Kruitbosch, supra, 114 Cal.App.5th at p. 207.)

“An employer’s response to harassment occurring outside the physical or digital workplace can independently create a hostile work environment.” (Kruitbosch, supra, 114 Cal.App.5th at p. 220.)

“Accepting the truth of the SAC’s allegations at the demurrer stage, and considering the totality of the circumstances, we cannot conclude as a matter of law that Carroll’s inaction and Giles’s comments, collectively, could not alter plaintiff’s working environment in an objectively severe manner.” (Kruitbosch, supra, 114 Cal.App.5th at p. 222.)

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Practice pointer

Open questions

Because it decided only the demurrer, Kruitbosch left the theory’s hardest questions for later stages. It did not decide “the imputability of Carroll’s and Giles’s actions to BRS under the relevant standard,” inviting plaintiff to add such allegations on remand — leaving open how the negligence and agency standards apply to an employer’s response (as distinct from the harasser’s underlying conduct). (Kruitbosch, supra, 114 Cal.App.5th at p. 226.) It expressly reserved whether FEHA “mandates a specific response an employer must make,” declining to define the contours of an adequate reaction. (Id. at p. 224, fn. 8.) It resolved severity only as a pleading matter, holding the “severity inquiry is factual in nature and not appropriate for resolution at the pleading stage” — so where the line falls between an actionable response and a lawful “personnel decision” remains for the trier of fact. (Id. at p. 224.) And, finding “no FEHA cases” on the imputability of a nonsupervisory coworker’s off-site conduct, the court borrowed Title VII factors without purporting to fix an exhaustive California test, leaving the precise boundaries of “work related” for future development. (Id. at pp. 217–219.)