What Happens When Harassment Occurs Outside of Work: Understanding Employer Responsibilities to Employees

Most people think of workplace harassment as something that happens at a desk, in a break room or during a meeting. Real life is rarely that tidy. Coworkers interact outside the office and on online platforms, sometimes blurring the line between work and private life. When that happens, employees are often left wondering whether the law offers any protection and whether their employer has a responsibility to step in.

A recent California appellate decision involving Bakersfield Recovery Services (BRS), a substance abuse treatment facility, shows how these situations can play out. The employer’s handling of the complaint mattered just as much as where the alleged misconduct occurred in the case.

An employee accused a coworker of engaging in a pattern of unwelcome and sexually explicit behavior that took place entirely outside the workplace. The conduct included sending unsolicited nude photos to the worker’s personal cellphone, appearing uninvited at his home and repeatedly propositioning him for sex. None of these incidents occurred during work hours or as part of any job-related activity.

After returning from a leave of absence, the employee reported the behavior to management and human resources. He was told that nothing could be done because the conduct occurred off-site. According to the allegations, the company didn’t investigate, separate the two employees or take any disciplinary action.

The HR representative also made remarks that the employee interpreted as sarcastic and dismissive, including a mocking social media post and a comment referencing the explicit messages. Feeling unsupported and distressed, the employee resigned about a week later.

He then sued BRS, alleging violations of the California Fair Employment and Housing Act (FEHA). FEHA protects workers from sexual harassment, discrimination and retaliation at work. The law requires employers to take reasonable steps to address complaints and maintain a workplace free from hostility based on protected characteristics, such as sex, race, age or disability.

The trial court dismissed the case, ruling that the alleged harassment was not actionable because it didn’t occur in the workplace or relate to the worker’s job. The employee decided to appeal.

The California Court of Appeals held that the coworker’s behavior, while described as offensive and inappropriate, was not sufficiently connected to the workplace to make the employer automatically liable under FEHA. In California, for harassment to be the employer’s responsibility, there needs to be a real connection to the job. That might include behavior that occurs during work hours, at a work-related event or in a situation tied directly to someone’s employment. Simply knowing a coworker through the office doesn’t make off-duty, private behavior the employer’s responsibility.

However, the court didn’t stop there. FEHA not only prohibits harassment but also requires employers to respond appropriately when workers raise concerns. The court made clear that an employer’s decision to do nothing can itself create a hostile work environment even if the misconduct happened outside the workplace. In this case, BRS neither took action nor addressed the worker’s concerns, allegedly mocking him instead.

A jury could reasonably find that the employer made the employee’s work environment more difficult by ignoring the complaint and allegedly treating his concerns lightly. Courts look at the full picture when deciding if a workplace is hostile. When an employer does nothing, it can make workers feel like their complaints don’t matter and leave them to handle uncomfortable situations on their own.

Based on that reasoning, the court allowed the lawsuit’s hostile work environment claim, along with a related claim for failure to prevent harassment, to proceed. At the same time, it agreed with the dismissal of other claims, including discrimination and retaliation, because they didn’t meet legal requirements.

FEHA doesn’t hold employers responsible for every instance of inappropriate behavior between coworkers outside the office. But once an employee reports conduct that affects their ability to do their job, the employer can’t simply ignore it. They’re expected to take complaints seriously and respond in a way that doesn’t make matters worse.

If you are dealing with harassment, retaliation or another workplace issue and are unsure about your rights under California law, speaking with an experienced San Francisco employment attorney can help you understand your options. McCormack Law Firm is committed to helping workers protect their rights. Contact us today to schedule a free initial consultation.

Disclaimer: This article is for information purposes only. McCormack Law Firm is not involved in this case.