Should employers be liable for sex harassment by non-employees?

M.F. worked for Pacific Pearl Hotel Management, LLC as a housekeeper at its five-building hotel property. One morning, the hotel’s engineering manager saw a drunk trespasser with a beer in his hand walking inside the hotel and using the elevator. The manager did not tell the trespasser to leave, and did not report him to management or police.

The trespasser approached housekeepers cleaning hotel rooms twice, made sexually harassing comments, and offered money for sexual favors. One housekeeper immediately reported the incident to management.

Through the walkie-talkie, a housekeeping manager informed other managers about the trespasser. The housekeeping manager then went to one of the buildings to check on the safety of the housekeepers.

However, the housekeeping manager did not go to the building where one of the harassing incidents occurred (and where M.F. was assigned). M.F.’s supervisor checked the first floor of the building, but did not check the second floor, where M.F. was working.

The trespasser went to the hotel room M.F. was cleaning, confronted her and blocked her exit. He punched her in the face and knocked her out. When M.F. regained consciousness, the trespasser was raping her on the hotel room bed. He sexually harassed, assaulted, battered and sodomized her for over two hours. During that time, her cleaning cart remained outside the hotel room, the blinds remained closed, and no one from the hotel came looking for her.

M.F. sued the employer alleging that her employer violated California’s sexual harassment laws by failing to take reasonable steps to prevent the sexual harassment. The employer argued that M.F. failed to show that the employer knew or should have known that the trespasser might sexually assault its employees. According to the employer, M.F.’s only remedies are found under the workers’ compensation law.  The trial court agreed with the employer and dismissed M.F.’s complaint. M.F. appealed.

California’s Court of Appeal overturned the trial court’s decision, noting that the employer may not have had any responsibility to its employees before the trespasser appeared on the hotel property. However, after the trespasser began aggressively propositioning employees for sexual favors, the employer was on notice of the sexual harassment. At that time, it was obligated to take adequate remedial measures to (1) end the current harassment and (2) to prevent future harassment.

Even though the trespasser’s initial harassment was not directed at M.F., the employer may still have responsibilities toward her. If an employer knows a particular person’s abusive conduct places employees at risk of sexual harassment, the employer has responsibility to protect a likely future employee victim.

The more egregious the abuse and the more serious the threat of which the employer has notice, the more the employer will be required to take steps to protect future victims.

While the employee has remedies under workers’ compensation laws, the appellate court concluded that she also has valid harassment claims which can be brought before our civil courts.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com or our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award for 2016.]