California: No Sexual Harassment Liability Where Personal Relationship is External to Employment
All Employers with CA Employees
February 24, 2023
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In Atalla v. Rite Aid Corporation, the California Court of Appeal stated that where an employee and supervisor have a personal relationship that predates employment and improper behavior occurs outside of the employment context, there is no supervisor liability under the California Fair Employment and Housing Act (FEHA).
Here, an employee had an offsite and afterhours text exchange with a district manager which resulted in him sending unsolicited lewd photographs to her while apparently inebriated. She made a claim for sexual harassment, among others, against the employer. The day after receiving notice of the incident, the employer initiated an immediate investigation in which the manager admitted to sending the lewd photos. He was promptly placed on suspension and terminated shortly thereafter.
Under FEHA, an employer is strictly liable for harassment by a supervisor, but only “if the supervisor is acting in the capacity of supervisor when the harassment occurs.” “The employer is not strictly liable for a supervisor’s acts of harassment resulting from a completely private relationship unconnected with the employment and not occurring at the workplace or during normal working hours.” The employee here claimed she was only friends with the manager to try to get ahead in the company. However, the employee and manager knew each other, and were friends, from a time before the employee started working for the company. They texted on personal matters and had lunch together. They had also socialized together with their respective spouses outside of work. Because the conduct at issue “occurred outside the workplace and outside of work hours” and was “spawned from a personal exchange that arose from a friendship between [them],” the employer was not liable for the conduct.
- Review harassment policies for compliance.
- Ensure all personnel receive required sexual harassment training.
- Address all sexual harassment claims immediately.
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