An Employer Can Potentially be Held Liable if a Nonemployee Sexually Harasses an Employee

What happens if a nonemployee harasses or sexually assaults an employee in the workplace?  Is the employer liable?  Possibly.  On October 26, 2017, the Court of Appeal, Fourth Appellate District considered whether an employee’s claims against her employer for violating the California Fair Employment and Housing Act (FEHA) for harassment and failing to prevent harassment overcame the workers’ compensation exclusivity doctrine.  M.F. v. Pacific Pearl Hotel Management, LLC (D070150, Fourth Appellate District, Division One, 10/26/17). 

In this case, the plaintiff worked as a housekeeper for a five-building hotel property.  One morning, a manager spotted a drunk man, who was not a hotel guest, walking around the hotel grounds.  The manager did not report the trespasser or ask him to leave.  This man then approached several housekeepers and offered to pay them for sexual favors.  A maintenance worker intervened and asked the trespasser to leave.

The trespasser returned on a second occasion.  Again, he approached a housekeeper while she was cleaning a room and offered to pay her for sexual favors.  The housekeeper closed the door on the man and reported the incident to housekeeping management.  Housekeeping management then informed all other housekeeping managers of what had transpired.

When the trespasser returned to the hotel property a third time, he found plaintiff cleaning a room.  He forced plaintiff into the room, closed the blinds, punched her in the face, and knocked her out.  Then, the trespasser assaulted, battered and sodomized plaintiff for over two hours.  Once the trespasser left, the plaintiff called housekeeping for help, but no one answered.  She then called the police, who came to rescue her.

Plaintiff sued Pacific Pearl Hotel Management, LLC (Pacific Pearl) for sexual harassment and failure to prevent harassment under the FEHA.  The trial court dismissed the case on the grounds that plaintiff’s claims were barred by the workers’ compensation exclusivity doctrine and plaintiff had not plead sufficient facts to show that Pacific Pearl had knowledge or notice that a sexual assault might occur.

The appellate court reversed.  The FEHA holds an employer responsible for sexual harassment of nonemployees if the employer, its agents, or supervisors know or should have known of the conduct and fail to take immediate and corrective action.  Once Pacific Pearl discovered that the trespasser had approached housekeepers and asked them for sexual favors, it had to take adequate remedial measures to end the harassment and to deter future harassment.  The Court reasoned that Pacific Pearl was not precluded from acting on its duties under the FEHA because the trespasser’s initial harassment was not directed at plaintiff.  If an employer is aware of a person’s abusive conduct which potentially exposes its employees to acts of sexual harassment, the employer has a duty to protect its employees.

Since the plaintiff had viable claims under the FEHA, the workers’ compensation exclusivity doctrine was not a bar to her claims.

If you feel that you have been sexually harassed in the workplace by a coworker or any other person, please feel free to call Hunter Pyle Law for a free consultation at (510)-444-4400 or inquire@hunterpylelaw.com.