Employers Can Be Liable for the Misconduct of a Nonemployee Trespasser

Sexually Assaulted Employee Can Recover Damages from Employer Under FEHA, in Addition to Workers’ Compensation Recovery, for Sexual Harassment by a Nonemployee Trespasser

In M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, a California Court of Appeal ruled that workers’ compensation benefits may not be the exclusive remedy for an employee who was sexually assaulted by a non-employee trespasser if the employee can make out a claim that the employer violated California’s Fair Employment and Housing Act (FEHA) by not taking reasonable steps to prevent the attack.

In this case, a hotel housekeeper (“M.F.”) was raped by a trespasser on hotel property while the housekeeper was cleaning a room. The employee alleged that while she was cleaning rooms, the engineering manager saw a drunken trespasser walking around one of the buildings holding a beer. He noticed the trespasser three separate times in the same building but never told him to leave and never notified housekeeping management or the police. The trespasser then approached one housekeeper, made sexually harassing comments and offered money in exchange for sexual favors. A maintenance worker overheard the trespasser and helped the housekeeper convince the trespasser to leave the room. The trespasser then approached a second housekeeper in the same manner. That housekeeper closed the door on the trespasser and reported the incident to housekeeping management using the hotel room phone. The housekeeping manager broadcast the trespasser’s activities and location to other housekeeping managers using a walkie-talkie. The housekeeping manager then checked the building where the first incident occurred, but not where the second incident occurred. M.F.’s supervisor was assigned to that building, but he only checked the first floor. The trespasser was on the second floor and he then went to the room that M.F. was cleaning, locked her in the room and brutally raped her for two hours, causing severe injuries to M.F.

M.F. sued the hotel for violation of FEHA, alleging that (1) she was raped while working on the employer’s premises by a drunk nonemployee trespasser; (2) the employer knew or should have known the trespasser was on the employer’s premises for about an hour before the rape occurred; and (3) the employer knew or should have known that, while on the employer’s premises, the trespasser had aggressively propositioned at least one other housekeeping employee for sexual favors. The hotel argued that M.F. could not make out a claim under FEHA because she did not allege that the hotel knew that the trespasser posed a risk of sexual harassment before he entered onto the property. The trial court agreed with the hotel and dismissed the case for failure to state a claim under FEHA. M.F. appealed.

The Court of Appeal ruled that the hotel’s duty under FEHA to take reasonable steps to protect the plaintiff from sexual harassment by the trespasser arose when its agents were aware that the trespasser was on the property and had made aggressive sexual advances toward other housekeepers on duty. The court explained that once an employer is informed that sexual harassment has occurred, it must take “adequate remedial measures,” including immediate corrective action to end the current harassment and to deter future harassment:

The employer’s obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified, and (2) that permanent remedial steps be implemented by the employer to prevent future harassment.

If an employer knows a particular person’s abusive conduct places employees at unreasonable risk of sexual harassment, the employer cannot escape responsibility to protect a likely future employee victim merely because the person has not previously abused that particular employee.

Regarding harassment of an employee by a non-employee, the court explained that FEHA was drafted broadly enough to cover the facts of this case: “[FEHA] provides for liability whenever an employer (1) knows or should know of sexual harassment by a nonemployee and (2) fails to take immediate and appropriate remedial action (3) within its control.” The Court of Appeal ordered the trial to court to allow M.F.’s case to proceed against the hotel.

What This Means for Employers:

This case is a reminder to all employers of the importance of taking immediate steps to stop and prevent further sexual harassment of any person, by any person, on its premises, as soon as the employer or its agents or supervisors, are notified of the harassment. Furthermore, all employees should be trained to immediately report the presence of any unauthorized persons on the employer’s property and employers should treat and respond to all reports of sexual harassment with the highest possible urgency. Contact Barsamian & Moody to have your company’s sexual harassment prevention policy reviewed, updated, or drafted.

The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Barsamian & Moody at (559) 248-2360 for individual responses to questions or concerns regarding any given situation.