Contributors

Jennifer Woo Burns

Of Counsel

Under the California Fair Employment and Housing Act, supervisors/managers are held to a high standard of conduct in interacting with subordinates, and employers are strictly liable for their harassing conduct. Despite this high level of accountability, the Court of Appeal refused to find an employer strictly liable for a supervisor’s off-duty conduct unrelated to work. In Atalla v. Rite Aid, 89 Cal.App.5th 294 (2023), a supervisor sent inappropriate and lewd text messages to a co-employee during off-work hours on non-work topics. The Court found that such communications did not give rise to strict liability exposure to the employer given the long-standing friendship between the two employees both during and prior to them working together, the numerous communications between them on a wide range of personal topics, and off-work social meetings including occasions such as birthdays and holidays. The Court found such ongoing interactions evidenced willing participation by both employees, and that given the overall context of their friendship, the supervisor was not acting in a supervisory capacity for those inappropriate communications.

While this case certainly does not give supervisors free reign to behave inappropriately just because they are friends with and socialize with other employees outside of work, it does show the importance of context and the surrounding circumstances in establishing the elements of a harassment claim and an employer’s strict liability exposure. It is also a reminder that discrimination and harassment cases are very fact-specific and must be carefully analyzed on an individual basis. Moreover, this case underscores the importance of employee training and awareness regarding situations where the lines between supervisor and friend can be blurred.