Employer Held Potentially Liable for Failure to Prevent Sexual Assault

BY: Ronald W. Novotny

When can an employer be liable for failing to prevent a sexual assault or rape of an employee?  The California Court of Appeal in the recent case of M.F. v. Pacific Pearl Hotel Management, LLC (D070150, FOURTH APPELLATE DISTRICT, DIVISION ONE, 10/26/17), helped provide some answers to this question.

The plaintiff in the case worked as a housekeeper in a 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 hotel property with a beer in his hand.  The Manager first saw the trespasser on the third floor of one of the hotel buildings and then on the second floor of the building, and once more in an elevator going to the first floor.  The Manager did not ask the trespasser to leave and did not report the trespasser’s presence to housekeeping management or the police.

The trespasser then approached several housekeepers cleaning hotel rooms several times while walking around the property, and propositioned one housekeeper for sexual favors in exchange for money.  A co-worker overheard the trespasser’s sexual harassing comments and persuaded the trespasser to leave the room.  The trespasser then tried to enter a hotel room in another building, but the housekeeper who was cleaning the room closed the door on him and reported the incident to the Housekeeping Manager.  While broadcasting the trespasser’s activities, the Housekeeping Manager did not go to the building where the second incident occurred.  Moreover, the plaintiff’s supervisor checked one floor of that building, but did not check the second floor where the plaintiff was working.

The trespasser then pushed the plaintiff’s cart aside and pushed the door open, forced the plaintiff back into the room, and raped and assaulted her for over two hours.  After he left, the plaintiff called the police and was hospitalized.

Although the trial court initially dismissed the case, the appellate court held that it could go forward because the hotel had been placed on adequate notice of the problem before the assault occurred.  The court held that after the trespasser began confronting and aggressively propositioning housekeeping employees for sexual favors, the hotel had a duty under the Fair Employment and Housing Act to end the harassment and to take reasonable care to prevent the same conduct from being done towards future victims.  The court specifically held that because the hotel knew or should have known that the trespasser was on its premises for about an hour before the rape occurred and that the trespasser had aggressively propositioned at least one other housekeeping employee for sexual favors, the hotel had a duty to act and could be found liable for sexual harassment based on its failure to take prompt corrective action to end the harassment by the non-employee trespasser.

Although the appellate court only held that a trial could proceed and it is not known whether the plaintiff will prevail on her claims, the case presents a good example of how important it is for employers to act promptly to put an end to any potentially harassing behavior whenever it occurs, whether it is being engaged in by an employee or non-employee visitor.

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