Employer Not Liable for Harassment Even Though Supervisor Sent Lewd Photos to Employee

​Although a supervisor sent texts containing lewd photos to an employee, the employer was not liable for sexual harassment because the supervisor was not acting in his capacity as a supervisor when he sent the texts, a California appeals court recently ruled.

The supervisor and the employee had been friends before she started working for the company, and the texts were sent from the supervisor's personal phone outside of working hours.

The supervisor was a district manager for a pharmacy chain. He oversaw the operations of 14 to 16 stores in his district. The employee met the supervisor in the early fall of 2017, during her last year of pharmacy school, when she did a six-week rotation with the chain, which entailed the employee shadowing the supervisor.

In March 2018, while the employee was still in pharmacy school, she began working as an intern at the pharmacy chain. In December 2018, she became an hourly staff pharmacist at one of the stores. In that position, she reported to the supervisor.

Starting from the time the employee did her six-week rotation, she developed a social relationship with the supervisor. Over time, they became close friends. The employee socialized outside of work with the supervisor. They texted frequently about personal matters and joked with one another in texts. Many texts were sent from their personal cell phones outside of business hours.

At about 11 p.m. on a Friday night in January 2019, the supervisor sent the employee a series of texts from his personal cell phone. She was at home at the time. He was at a hotel after having met his wine group at a restaurant.

He first sent photos of bottles and wine but then sent two texts that included nude photos of himself. The employee was in her living room, sitting next to her husband on the couch when she received the texts.

She told him to stop sending the texts. The next morning, the supervisor texted the employee to apologize, saying that he had been drunk the night before.  

A few days later, the employee's lawyer sent a letter to the pharmacy chain asserting a claim of sexual harassment. The employee never returned to her pharmacist job, and after an investigation, the supervisor was fired.

The employee subsequently filed a lawsuit, alleging sexual harassment under California's Fair Employment and Housing Act (FEHA), among other claims. The trial court dismissed the employee's sexual harassment claim before trial, and the employee appealed.

Sexual Harassment Under FEHA

The appeals court first noted that FEHA's prohibition of sexual harassment includes protection from a broad range of conduct, including the creation of a work environment that is hostile or abusive on the basis of sex.

Under FEHA, the court said, an employer is strictly liable for harassment by a supervisor. This means that the employer may be liable even if it did not know about the harassment. However, the court continued, an employer is only strictly liable under FEHA for harassment by a supervisor 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 court explained.

The appeals court affirmed the trial court's decision dismissing the claim before trial.

The parties had an extensive texting relationship, and that final late-night text exchange, which occurred outside the workplace and outside of work hours, arose from the friendship between them, the court said.

Both parties admitted that they were close friends and that their friendship predated the employee taking a job with the pharmacy chain. Both before and after the employee worked for the employer, she and the supervisor texted about a range of topics extensively and frequently. They regularly met for coffee and lunch, got together for holiday and birthday dinners, and were acquainted with each other's spouses.

When the final text exchange occurred, both participants were away from the workplace, and it occurred well outside working hours. They bantered over texts as they usually did, until the supervisor texted the inappropriate photos.

The evidence did not support an inference that, during the text exchange culminating in the inappropriate photos, the supervisor was acting in his capacity as a supervisor, the court said. Therefore, the employer could not be found liable for the supervisor's conduct.

Atalla v. Rite Aid Corp., Calif. Ct. App., No. F082794 (March 14, 2023).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.