by Julie Ann Giammona
Labor Code Section 3600 provides generally that workers compensation benefits are the exclusive remedy for an employee alleging an injury in the workplace. However, the exclusivity doctrine has long been held to be inapplicable to actions brought under the California Fair Employment and Housing Act (FEHA) which protects employees against discrimination, retaliation and harassment in the workplace. A recent California Appellate Court case, M.F. v. Pacific Pearl Hotel Management (2017) 16 Cal.App.5th 693, determined that an employer cannot shield itself from civil liability by asserting preemption pursuant to Labor Code Section 3600 where an employee is sexually harassed by a non-employee trespasser. This holding specifically clarifies that the language of Government Code Section 12940(j)(1) applies to all factual scenarios involving allegations of sexual harassment by a non-employee, not just to situations where the accused is a client or customer.
Plaintiff, a housekeeper employed by Pacific Pearl Hotel Management (“Pacific”) as a housekeeper was beaten, raped and severely injured by a drunken trespasser who forced the housekeeper into one of the hotel rooms and kept her captive for more than 2 hours. Prior to the assault, on the same morning, Pacific had specific knowledge of the drunken trespasser harassing two other housekeepers. Although Pacific took some measures to check on the safety of housekeepers by using a walkie-talkie system broadcasting the trespassers activities and location, the supervisor assigned to Plaintiff’s building never checked the second floor where Plaintiff was working. Moreover, during the attack, another housekeeping employee delivered a crib to the room Plaintiff was being held captive, but never inquired as to Plaintiff’s whereabouts even though Plaintiff’s cleaning cart was outside the room.
The Court’s Analysis
In determining that Pacific was liable for the non-employee trespasser conduct, the Court rejected Pacific’s argument that California Government Code Section 12940(j)(1) (which was specifically enacted to reverse the holding in Salazar v. Diversified Paratransit, Inc. by making employers liable for sexual harassment perpetrated by a non-employee), should be limited to factual scenarios involving sexual harassers who are non-employee clients or customers only, not trespassers. The Court held: (1) where an employer has specific knowledge of a particular person’s abusive conduct that places employees at unreasonable risk of sexual harassment, the employer has a duty to protect likely future employee victims, even though the alleged harasser is a trespasser and has not previously abused that particular employee; and (2) FEHA requires employers to take immediate remedial action to prevent harassment when the employer knew or should have known of the threat of sexual harassment and such duty is not limited to particular factual circumstances of Salazar (customers or clients as harasser).
Employers need to be on the alert for any person’s conduct in the workplace that could be considered sexual harassment and take immediate action to prevent harm to employees. No longer can employers argue that because the alleged culprit was not an employee, customer or client, the employer is not liable under FEHA. Once the provisions of FEHA apply, the workers’ compensation exclusivity rules vanish, leaving employers exposed to civil damages for intentional infliction of emotional distress, among other claims.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.