March 29, 2023

Limiting the Parameter of Sexually Harassing Conduct

A recent California Court of Appeal decision offers individualized guidance on the limits of an employer’s responsibility to prohibit sexually harassing conduct when such conduct occurs during off-duty hours between friends.

In the case Atalla v. Rite Aid Corp (2023)i the Court of Appeal limited the extent to which an employer can be held liable for after-hours conduct between friends/co-workers with a long-standing personal history. Both the lower court and the Court of Appeal found that the conduct engaged in by Atalla’s friend/co-worker was undisputedly inappropriate but did not extend liability to Rite Aid as the co-worker was found not to be acting in his capacity as a supervisor at the time.ii

It was determined that the long-standing nature of the friendship between Atalla  and her co-worker, both before and after they worked together, evidenced communications on a range of topics that included work as well as personal subjects and that the friendship included an acquaintance with one another’s spouses as well as regular meetings for coffee, lunch, holidays and birthdays. Key to the Court’s analysis was the fact that the harassment occurred outside of working hours and that Atalla was a willing participant in the personal friendship that pre-existed her employment.

Arguably, the Atalla decision is limited to a specific factual situation; a long-standing friendship predating the working relationship with conduct occurring after hours. Nonetheless, it does offer some guidance as to what the Court considers to be the outer limits of an employer’s sexual harassment liability.

Federal law prohibits harassing conduct in the workplace under Title VII of the Civil Rights Act of 1964. California employers with 5 or more employees are also subject to the state’s Fair Employment and Housing Act (FEHA) which prohibits harassment, discrimination and retaliation based on protected classifications such as sex and gender. Additionally, under the FEHA, employers with only one employee are subject to laws against harassment.

Despite the favorable outcome for Rite Aid in this case, it remains true that conduct taking place outside of the workplace can still be considered harassment and an employer may be found liable because, although the alleged harassment took place outside the workplace, it arose out of the employment relationship. Employers should take seriously all complaints of sexually harassing conduct as well as the duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct and to create a workplace free of harassment.


i Atalla v. Rite Aid Corp 2023 WL 2521909 (Cal. Ct. App. Feb. 24, 2023).

ii Late night, sexually explicit, text messages were sent to Atalla by her friend/co-worker after working hours.