In M.F. v. Pacific Pearl Hotel Management LLC (Cal. Ct. App., Oct. 26, 2017, No. D070150) 2017 WL 4831603, a hotel housekeeper (known as M.F. to preserve her privacy) was assaulted and raped at work by a trespasser known to her employer. In overturning the trial court’s grant of dismissal, the California Court of Appeal analyzed whether a demurrer was properly sustained under California’s workers’ compensation exclusivity doctrine and the Fair Employment and Housing Act (“FEHA”) definition of sexual harassment.
The trespasser was first observed at the hotel by an engineering manager who did not report the trespasser to management, ask the trespasser to leave, or alert the police department. The trespasser then propositioned housekeepers three times as he walked around the property. One housekeeper reported the incident to management and the manager notified other housekeeping managers. The managers checked the safety of housekeepers on the property, but failed to check the floor of the building where M.F. was working. Management did not alert the police or attempt to ascertain the whereabouts of M.F. for several hours.
In the trial court the defendant hotel argued that M.F.’s claim was barred by California’s workers’ compensation exclusivity doctrine. The appellate court agreed that generally the right to recover workers’ compensation benefits is the exclusive remedy for an employee against an employer for a workplace injury. This includes when an injury is caused by “an employer’s negligent or reckless failure to provide adequate premises security despite knowledge of danger to its employees.”
Before the Court of Appeals, the employer did not dispute that the workers’ compensation exclusivity doctrine was inapplicable to claims under FEHA. Accordingly, the court held that, as long as the employee could state a claim under FEHA, the workers’ compensation doctrine would not present a bar to the employee’s claim. FEHA provides in part that “[a]n 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.” The employer argued that the employee failed to state a viable claim under FEHA because she could not show that the employer knew the trespasser posed a risk to housekeeping employees before he appeared on the property and began harassing them. The court held that, despite the employer’s lack of that specific knowledge, it nevertheless had responsibilities after the trespasser appeared, particularly after the trespasser began confronting and aggressively propositioning housekeeping employees for sexual favors.
The employer also argued that the employee could not state a claim because the initial harassment was not directed towards her. The court held that 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.
This decision must reinforce all employers’ concerns about the breadth of management’s responsibility to protect its employees from sexual harassment from all sources. Liability will not be limited to workers’ compensation insurance. Once an employer is informed of a potential for sexual harassment, it must take corrective action that is reasonably calculated to end the current harassment and to deter future harassment.
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