California’s Fair Employment and Housing Act (“FEHA”) lays out the circumstances under which employers may find themselves generally strictly liable for a supervisor’s harassment, even where the employer is unaware of the supervisor’s alleged bad actions.
However, a recent Court of Appeals opinion limits that liability in ways that employees should be aware. In Atalla v. Rite Aid Corp., 2023 WL 2521909 (Cal. Ct. App. Feb. 24, 2023), the Court of Appeal established limits on the extent to which employers can be held responsible for conduct stemming from employees’ personal relationships and after-hours conduct.
In that case, Hanin Atalla, a pharmacist, sued Rite Aid alleging that a district manager had sexually harassed her, among other claims. Atalla’s claimed Eric Lund, the manager, had initiated a number of late-night text messages to her, including a video of him engaging in a sexual act and a photo of his genitals. Rite Aid did not dispute that Lund had sent the sexually explicit communications, but maintained that it was not liable for harassment based on Lund’s conduct because he was not acting in his capacity as a supervisor at the time. The trial court granted summary judgment to Rite Aid on Atalla’s sexual harassment claim, among others, and Atalla appealed. However, the Court of Appeal affirmed summary judgment for Rite Aid, agreeing with the trial court’s determination.
The Court relied on evidence demonstrating a long-standing personal relationship between Atalla and Lund that predated their working relationship. Atalla had testified that her preexisting relationship with Lund “was wholly unconnected to her work” and that even before they worked together, they “texted about a range of topics, extensively and frequently, including … concerning family, vacations, food and dining, alcohol and drinking, people and pets, exercise, as well as chit chat about work,” and “regularly met for coffee and lunch, got together for holiday and birthday dinners, and were acquainted with each other’s spouses.”
Regarding the sexually explicit pictures and video Lund sent to Atalla, the Court concluded that it was not work-related and, thus, could not form the basis of a harassment claim against Rite Aid. The Court noted that Lund sent the photo and video while intoxicated at a hotel late in the evening and Atalla received the texts at her home.
Accordingly, the Court of Appeal explained that Rite Aid was not strictly liable because Rite Aid demonstrated that the harassment occurred outside of work and that Atalla a willing participant in the personal friendship that pre-existed Atalla’s employment.
Ultimately, employees should know that while Atalla provides some protection for employers when employees engage in purely personal conduct, employers still will face strict liability for work-related actions by supervisors.
For more information on whether to lodge a complaint of harassment against your employer, please contact Public Employees Legal at (310) 649-5300 or review our online training on preventing and combating unlawful workplace harassment.