In September 2025, the California Court of Appeal issued a decision in Kruitbosch v. Bakersfield Recovery Services, Inc. that clarifies how employers may face liability under the Fair Employment and Housing Act (FEHA). The ruling confirms that off site, off duty harassment by a coworker is not automatically imputable to the employer. It also emphasizes that an employer’s response to a harassment complaint can itself create a hostile work environment.
For HR leaders, investigators, and compliance professionals, this case is a critical reminder. It is not only the misconduct that matters, but also how an organization handles the report once it is made.
Steven Kruitbosch, an assistant corporate compliance officer at Bakersfield Recovery Services (BRS), alleged that during a bereavement leave a coworker engaged in repeated sexual harassment. He stated that the coworker sent unsolicited nude images and sexual propositions, appeared uninvited at his home with another woman, left a sexually explicit object in his driveway, and offered drugs in conjunction with sexual solicitation.
When Kruitbosch returned to work, he reported the conduct to management and HR. According to the complaint, the acting program director responded that little could be done because the conduct occurred off site. The HR representative mocked him on social media and sarcastically remarked, “I hope you get no more pictures.” No investigation or corrective action occurred, and the alleged harasser remained in the workplace.
Within a week, Kruitbosch resigned, claiming the work environment had become intolerable. He filed suit under FEHA for hostile work environment, failure to prevent harassment, discrimination, and retaliation.
The Court of Appeal reached a split outcome.
Off Site Harassment Not Directly Imputable The court held that the coworker’s conduct, while egregious, occurred off site, outside working hours, and not in connection with any work related event. Without a sufficient work nexus, the employer was not strictly liable for the coworker’s actions. Employer Response May Create Liability The court allowed Kruitbosch’s hostile work environment claim to proceed based on BRS’s dismissive and mocking response. The employer’s refusal to act, combined with HR’s social media conduct, plausibly altered the conditions of Kruitbosch’s employment and could be considered severe enough to sustain a FEHA claim. Other Claims Narrowed The court dismissed claims for discrimination, retaliation, negligent supervision, and constructive discharge, citing insufficient evidence of an adverse employment action.
Off Site Conduct Still Requires Review Employers should not assume that off duty behavior is beyond their responsibility. If the conduct impacts the workplace, complaints must be addressed. Employer Response Matters as Much as the Misconduct The tone, professionalism, and seriousness of the employer’s response can itself create liability. Dismissive or mocking behavior by HR or supervisors may form the basis of a hostile work environment claim. Investigations Must Be Prompt and Documented Even if misconduct occurs outside the workplace, employers must investigate, document findings, and consider separation measures or interim protections for the complainant. Policies Alone Are Not Enough Many employers have policies stating that off duty harassment violates company rules. This case demonstrates that policy without enforcement is insufficient. Training and Social Media Awareness HR and management training should reinforce appropriate complaint handling. Social media activity by HR staff can be scrutinized as evidence of hostility or retaliation.
For investigators, this decision reinforces the need to assess employer conduct after a complaint. Did management investigate, document, or take interim measures. Consider whether the employer’s actions altered the conditions of employment. Both the misconduct and the employer’s handling are relevant to liability under FEHA.
The Kruitbosch case underscores a critical principle. An employer’s response to a harassment complaint may itself create a hostile work environment, even if the underlying conduct occurred away from the workplace.
For HR leaders and investigators, the lesson is clear. Every complaint must be taken seriously, investigated promptly, and addressed respectfully. Inaction or mockery not only erodes trust but can expose organizations to significant legal liability.
Learn more about our workplace investigations services at allenmorrispi.com/workplace-investigations.
Allen Morris Investigations is a licensed CA private investigation firm specializing in workplace investigations, Title IX, and compliance matters.
Related resources: Review our California workplace harassment investigation best practices, see our workplace investigation services, or contact us for a confidential consultation.
