Where a California employee alleged facts showing that she was raped while working on the employer’s premises by a drunk nonemployee trespasser, that the employer knew or should have known the trespasser was on the employer’s premises for about an hour before the rape occurred, and that the employer knew or should have known that, while on the employer’s premises, the trespasser had aggressively propositioned at least one other housekeeping employee for sexual favors, the plaintiff/employee had stated a claim against the employer under the California Fair Employment and Housing Act (FEHA [M.F. v. Pacific Pearl Hotel Management LLC, 2017 Cal. App. LEXIS 933 (Oct. 26, 2017)].
According to the complaint filed against the employer, the employer’s engineering manager, on three separate occasions on the day of the attack, observed a drunk man, who was not a guest of the hotel, walking around the hotel property with a beer in his hand. The manager did not ask the trespasser to leave nor did the manager did not report the trespasser’s presence to management. The plaintiff employee further alleged that the trespasser propositioned several housekeeping employees, asking for sexual favors. Later, the trespasser trapped the employee in a room, punched her in the face, knocking her out, and then raped her. The employee alleged that the trespasser held her within the room for almost two hours and that when she escaped and called the front desk to report the incident, no one answered. She then called the police, who responded to the hotel. The employee was hospitalized following the incident.
Exclusivity Doctrine Did Not Apply
The employer did not dispute that the exclusive remedy doctrine was inapplicable in the case under California’s FEHA. The court stressed that the fact the employer might not have had any responsibility to housekeeping employees under the FEHA before the trespasser appeared on the hotel property did not preclude the employer from having such responsibilities after the trespasser appeared, particularly after the trespasser began confronting and aggressively propositioning housekeeping employees for sexual favors. Likewise, the fact the trespasser’s initial harassment was not directed at the employee did not preclude the employer from having responsibilities under the FEHA toward her.
As to the employer’s contention that it had taken immediate and appropriate corrective action in the incident, the appellate court said such issue was a question of fact and could not be resolved on demurrer.