Hotel Housekeeper Alleging Trespasser Raped Her Can Sue Employer

Calif. employers can be liable for sexual harassment by nonemployees in some cases

By Joanne Deschenaux November 3, 2017
Hotel Housekeeper Alleging Trespasser Raped Her Can Sue Employer

A housekeeping employee who claimed that she was raped by a drunk trespasser can sue the hotel under the California Fair Employment and Housing Act (FEHA) for sexual harassment by a nonemployee and for failure to prevent such harassment, the California Court of Appeal ruled.

The housekeeper sued other parties and brought other legal claims, but the sexual harassment claim against her employer was the only issue on appeal.

The employee alleged that her employer knew or should have known that the trespasser was on the premises for about an hour before the assault occurred and that, prior to the assault, the trespasser had aggressively propositioned two other housekeeping employees for sexual favors.

The plaintiff worked for Pacific Pearl Hotel Management as a housekeeper at its five-building hotel property. One morning, the hotel's engineering manager saw a drunk man, who was not a guest of the hotel, walking around the hotel property with a beer in his hand. The engineering manager did not ask the trespasser to leave and did not report the trespasser's presence to housekeeping management or to the police department.

[SHRM members-only toolkit: Preventing Unlawful Workplace Harassment in California]

Before approaching the plaintiff, the trespasser approached two other housekeepers cleaning hotel rooms, made sexually harassing comments and offered the housekeepers money in exchange for sexual favors. The first time, a maintenance worker overheard the trespasser's comments and helped the housekeeper persuade the trespasser to leave the room. The second housekeeper reported the incident to housekeeping management.

Using a walkie-talkie system, a housekeeping manager then broadcast the trespasser's activities and location to other housekeeping managers and went to one of the buildings to check on the safety of the housekeepers. No one checked the floor where the plaintiff was working.

The trespasser went to the hotel room that the plaintiff was cleaning. Her cleaning cart was parked in front of the room door. As she went to put cleaning supplies back into the cart, the trespasser confronted her and blocked her exit. He pushed the cart to the side, pushed the room door open, forced the plaintiff back into the room and asked her to close the blinds. She refused to close the blinds and tried to get past him. He grew agitated and punched her in the face, knocking her out.

When the plaintiff regained consciousness, the blinds were closed, and 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.

After the trespasser left the room, the plaintiff used the room's phone to call the housekeeping for help, but no one answered. She then called the police, who responded and took her to the hospital, where she remained for weeks.

The plaintiff sued Pacific for sexual harassment based on a hostile work environment and for failing to prevent sexual harassment. Pacific moved to dismiss the lawsuit before trial, and the court granted the motion. The plaintiff appealed, and the appellate court reversed the dismissal, ruling that she could proceed with the claims.

Hotel Should Have Known

The court first noted that, under FEHA, an employer can be liable for sexual harassment by a nonemployee when it knew or should have known about the conduct and failed to take immediate corrective action.

Once the trespasser confronted and aggressively propositioned housekeeping employees for sexual favors, the hotel should have known that he posed a threat to its workers and taken immediate action, the court said. 

The employer's corrective action must be intended to end the current harassment and prevent future harassment, the court continued. The court rejected the hotel's claim that it had no responsibilities under the FEHA toward the plaintiff because the initial harassment was not directed at her. If an employer knows that a nonemployee's abusive conduct places employees at risk of sexual harassment, the employer can't escape liability toward a particular employee just because the nonemployee hasn't previously abused that worker, the court said.

The hotel further claimed that the lawsuit should be dismissed because, even if it owed a duty to the plaintiff to protect her from the trespasser's harassment, the actions it took were sufficient to meet its obligations. But that is an issue of fact to be decided at trial, the court said, noting that the plaintiff should have an opportunity to show that the hotel's response was inadequate.

M.F. v. Pacific Pearl Hotel Management LLC, Calif. Ct. App., No. D070150 (Oct. 26, 2017).

Professional Pointer: Although this case involved a trespasser, an employer may also be liable for the harassing actions of a nonemployee who is legitimately on the premises, such as a client or a delivery person, and the employer's obligation to take immediate corrective action would be the same in such cases.

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


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