California HR, Employment Law, Harassment

California Court: Employer May Be Liable for Sexual Harassment by Nonemployee

A hotel housekeeping employee was brutally raped by a trespasser while she was working at the hotel. The employee sued her employer for violating the California Fair Employment and Housing Act (FEHA) provisions requiring it to protect her from nonemployee sexual harassment.

Sexual harassment

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The hotel argued that the employee couldn’t establish a valid claim under the FEHA because it didn’t know the trespasser posed a risk to her before he appeared on its property, and her claim was therefore barred by the workers’ compensation exclusivity rule. The trial court agreed with the hotel, but the appellate court found the employee had established a valid claim for sexual harassment by a nonemployee.

Facts

M.F. worked as a housekeeper for Pacific Pearl Hotel Management, LLC, at its five-building hotel property in San Diego. One morning, the hotel’s managing engineer observed a drunk man, who wasn’t a hotel guest, walking around the hotel property holding a beer. The engineer didn’t ask the trespasser to leave, nor did he report the man’s presence to housekeeping management or the police.

The trespasser approached three different housekeepers while they were cleaning hotel rooms. First, he asked a housekeeper to use the restroom in a room she was cleaning, claiming it was his cousin’s room. He made sexually harassing comments, showed her a handful of $5 bills, and offered her money in exchange for sex. A maintenance worker overhead the trespasser and helped the housekeeper persuade him to leave the room.

Next, the man attempted to enter a hotel room on the third floor of another building and offered another housekeeper money for sexual favors. The housekeeper closed the door on the trespasser and reported the incident to housekeeping management. A housekeeping manager used the walkie-talkie system to notify other housekeeping managers of the trespasser’s actions and locations.

Then, the manager went to one of the buildings to check on the housekeepers’ safety, but he didn’t go to the building where the second incident occurred because M.F.’s supervisor was assigned to that building. M.F.’s supervisor checked only the first floor of the building and did not check the second floor, where M.F. was working.

Finally, the trespasser went to the hotel room M.F. was cleaning. When she attempted to leave the room to put her supplies in the cleaning cart parked in front of the door, the trespasser blocked her exit, forced her back into the room, and told her to close the blinds. She refused and tried to get past him. The trespasser punched her in the face, and she lost consciousness. When she regained consciousness, she was being raped.

The sexual assault lasted more than 2 hours. During that time, M.F.’s cleaning cart remained outside the hotel room, and no one looked for her. About 2 hours after the assault began, a housekeeping employee knocked on the door of the hotel room to a deliver a crib. The trespasser answered the door and told her to leave the crib outside the room. The employee did as he asked and didn’t inquire about M.F.’s whereabouts. A short time later, the trespasser left the room.

M.F. tried to call housekeeping for help, but no one answered. She then called the police department. She was taken to the hospital, where she remained for weeks.

M.F. filed a lawsuit against Pacific for hostile work environment sexual harassment and failure to prevent harassment. Pacific asked the court to dismiss the complaint, arguing that M.F. hadn’t alleged sufficient facts to show that it knew or should have known that the trespasser had engaged in any conduct requiring action by Pacific or putting it on notice that a sexual assault might occur. As a result, Pacific alleged that the complaint didn’t state a valid sexual harassment claim under the FEHA and was barred by the workers’ comp exclusivity doctrine.

The trial court agreed with Pacific and dismissed M.F.’s lawsuit. M.F. appealed.

Was Employer Liable Under FEHA For Sexual Harassment by Nonemployee?

The general rule is that the right to recover workers’ comp benefits is an employee’s exclusive remedy against her employer for a workplace injury. However, the workers’ comp exclusivity doctrine isn’t applicable to claims under the FEHA. Accordingly, if M.F.’s complaint stated a viable claim against Pacific under the FEHA, the workers’ comp exclusivity rule would not bar her claims.

The FEHA provides:

An employer may . . . be responsible for the acts of nonemployees, with respect to sexual harassment of employees . . . where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered.

In addition, the FEHA makes it unlawful for an employer to fail to take all reasonable steps necessary to prevent harassment from occurring.

Pacific argued that M.F.’s complaint failed to state viable claims under the FEHA because she didn’t allege facts that showed it knew the trespasser posed a risk to housekeeping employees before he appeared at the hotel.

The appellate court quickly dismissed that argument, noting Pacific had a responsibility to protect M.F. after the trespasser appeared, particularly after he began confronting and propositioning housekeeping employees for sexual favors. Further, the fact that the trespasser’s initial harassment was directed at other housekeepers didn’t mean Pacific didn’t have any responsibility under the FEHA to protect M.F.

Pacific next argued that the FEHA’s prohibition on harassment by nonemployees was inapplicable to the factual circumstances of this case. The California Legislature amended the FEHA to prohibit sexual harassment by nonemployees in response to a ruling by the California Court of Appeal that the FEHA doesn’t prohibit sexual harassment by a customer.

The appellate court found that the legislative history didn’t indicate an intent to limit the statute’s application to the factual circumstances in the case dealing with harassment by a customer. Rather, the only limitation demonstrated in the legislative analysis was an intent to limit the bill’s application to sexual harassment by nonemployees and not to apply it to nonemployee harassment based on other protected characteristics.

Finally, Pacific alleged that even if it had a responsibility to M.F. for the trespasser’s harassment, it fulfilled its duty by providing a reasonable and adequate response. The appellate court held that whether the employer took immediate appropriate corrective action as required by the FEHA was a question of fact to be decided by a jury. The appellate court therefore reversed the trial court’s dismissal of M.F.’s complaint.

Bottom Line

This case is a powerful reminder that an employer will be held responsible under the FEHA for sexual harassment committed by a nonemployee if it knew or should have known about the harassing conduct and failed to take immediate appropriate corrective action.

In this case, the trespasser sexually assaulted M.F. after the employer was already on notice that he was on hotel premises and had sexually harassed two other housekeepers. That was sufficient to establish a valid claim of sexual harassment under the FEHA.

Cathleen S. Yonahara, an editor of California Employment Law Letter can be reached at Freeland Cooper & Foreman LLP in San Francisco, yonahara@freelandlaw.com.