Exclusively Employment Law

When the Harasser Is a Customer, Client, or Trespasser

by | Dec 24, 2018 | Harassment

Under California law, it is unlawful for an employee to sexually harass another employee. A less known fact is that under California law, it is also unlawful for a non-employee (such as a client, customer, or trespasser) to sexually harass an employee. And in certain circumstances, when a non-employee sexually harasses an employee, the employer will be held responsible for the non-employee’s sexual harassment.

Specifically, California Government Code section 12940(j)(1) provides, “An employer may [ ] be responsible for the acts of nonemployees, with respect to sexual harassment of employees . . ., if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.“ (Cal. Gov. Code section 12940(j)(1).)

In M.F. v. Pacific Pearl Hotel Management LLC, 16 Cal.App.5th 693 (2017), the California Court of Appeal held in favor of an employee who attempted to hold her former employer responsible for a trespasser’s sexual harassment of her while at work.

In Pacific Pearl Hotel Management LLC, one day, Pacific Pearl Hotel Management, LLC’s (“Pacific”) engineering manager saw a drunk man (who was not a hotel guest) roaming different floors of the hotel. The engineering manager, however, did not ask the trespasser to leave or report the trespasser to management.

That same day, the trespasser subsequently approached two housekeepers, offering money to each of them in an effort to obtain sexual favors. He then went to the hotel room that M.F. (another housekeeper) was cleaning, punched her out, and then eventually raped her, sexually harassing, assaulting, battering, and sodomizing her for over two hours.

M.F. sued Pacific for hostile work environment sexual harassment and for failure to prevent sexual harassment. M.F. contended that Pacific violated California law by allowing the trespasser to sexually harass her and by failing to take reasonable steps to prevent the sexual harassment from occurring.

Pacific argued that in her complaint, M.F. did not allege sufficient facts to show that Pacific knew or should have known that the trespasser posed a risk to the housekeeper employees before he appeared on the hotel property and began harassing them.

The Court of Appeal, however, reasoned that the fact that Pacific may not have had any responsibility to its housekeeper employees under California law before the trespasser appeared on the hotel property did not preclude Pacific from having such a responsibility after the trespasser appeared, “particularly after the trespasser began confronting and aggressively propositioning housekeeping employees for sexual favors.” (M.F., 16 Cal.App.5th at 701.)

M.F. v. Pacific Pearl Hotel Management LLC is a reminder that under certain circumstances, an employer may be held responsible for a non-employee’s sexual harassment of an employee. Read the full California Court of Appeal opinion here.Moreover, as a result of recent legislation (SB 1300), effective January 1, 2019, employers may now be held responsible for other types of harassment (e.g., race, religion, disability) committed by non-employees against employees.

If you believe that you have been subjected to sexual harassment at work, call ((916) 612-0326) or email ([email protected]) Finley Employment Law today. We serve clients throughout California, including Sacramento, Roseville, Davis, Folsom, and Elk Grove.

The information in this blog post is for general informational and advertising purposes only and is not, nor is it intended to be, legal advice. Instead, you should speak with a California employment attorney for advice regarding your individual situation.