California Court Confirms: Employers are Liable for Sexual Harassment by Non-Employees

With all of the recent news surrounding workplace sexual harassment and sexual misconduct by politicians, news anchors, celebrities, and other high-profile persons, it comes as no surprise that a California court has weighed in on the issue of workplace sexual harassment.

In M.F. v. Pacific Pearl Hotel Management LLC, the Fourth District Court of Appeal confirmed that California employers are legally liable for harassment committed against their employees by third parties at the worksite who are not other employees.

In this case, a hotel housekeeper was raped while working by an intoxicated trespasser.  The housekeeper alleged that hotel management knew or should have known that (1) the trespasser was on the premises, and (2) the trespasser was a threat to employees’ safety because he had been propositioning other housekeeping employees for sexual favors.  The employee sued her employer under California’s Fair Employment and Housing Act (“FEHA”) for sexual harassment and for failing to take all reasonable steps to prevent harassment in the workplace.

The Court concluded that, under FEHA, an employer is liable whenever it “knows or should know” of sexual harassment by a non-employee and fails to take “immediate and appropriate remedial action” within its control.  In this case, the Court emphasized that the employer became legally responsible because its engineers discovered the trespasser on the property prior to the alleged rape.  However, the Court noted, the engineer “did not ask the trespasser to leave.”  Nor did the engineer “report the trespasser’s presence to housekeeping or to the police department.”  Moreover, other managers were alerted to the trespassers activities on the property prior to the alleged rape but failed to inspect the victim-employee’s actual location.

Importantly, the Court also concluded that the employee could state a claim for intentional infliction of emotional distress along with her FEHA claims for sexual harassment and failure to prevent harassment.  The Court rejected the argument that workers’ compensation was the exclusive remedy, citing numerous California court decisions holding that “claims for intentional infliction of emotional distress in the employment context may be asserted where the actionable conduct also forms the basis for a FEHA violation.”

This case does not create new law in California.  And the result is dependent on the very specific facts that were presented — namely, the egregious failures of the employer once aware of the trespasser’s presence.  Nevertheless, with the all the news today around sexual harassment and sexual assault in the workplace, employers would be wise to take heed.  Under California law, employers must provide and guarantee their employees a safe workplace.  Even non-employee actions can trigger employer responsibility in California.

You can read the Court’s opinion in M.F. v. Pacific Pearl Hotel Management LLC here.

Comments are closed.