Nicole Reyes moved to the United States from the Philippines with her five-year-old daughter and husband just over a year ago, speaking minimal English. Through a family friend who knew the owner, Maria Santos, also from the Philippines, Mrs. Reyes got a job in Hotel Pagalit cleaning rooms. When she began her employment with the hotel, Mrs. Reyes received a fifty page handbook in English with the hotel’s policies and procedures, which included a section on how to address any sexual harassment she might encounter. The handbook defined sexual harassment, contained examples of verbal, physical and non-verbal harassment, stated that any form of sexual harassment was strictly prohibited and should not be tolerated by any employee, provided information about the hotel’s human resources department, how to record and report an incident of sexual harassment, the individuals to whom sexual harassment should be reported, the investigative procedures the hotel would carry out in response to reports of sexual misconduct, and instructions on how to minimize the risk of being harassed in the first place. The hotel required that cleaners work in teams of two or more, and never enter rooms alone, in an effort to reduce the risk of sexual harassment. The handbook also stated that the hotel would take prompt, vigorous action in the form of discipline, reporting to the police, and/or dismissal against anyone who, after a full investigation, was determined to have sexually harassed or engaged in sexual misconduct against another.
The owner’s husband, Angelo Santos, did not have a formal management position or ownership interest in the hotel. Nonetheless, he was a constant presence at the hotel, and would informally participate in the hiring and firing of employees such as Mrs. Reyes. Maria and Angelo Santos would jointly discuss employees’ rates of pay, the number of hours employees worked, and job assignments, and who should be hired and let go, although the ultimate decision-making authority rested with Mrs. Santos. According to the hotel handbook, any reports of sexual harassment alleging improper physical contact would have to be reported to Mrs. Santos by senior human resources personnel.
Coerced Sexual Activity By the Hotel Owner’s Husband
Mr. Santos falsely told Ms. Reyes that he was the owner of the hotel and was her boss, and that if she did not do as she was told, he could fire her. He asked repeatedly to meet with her privately in one of the vacant rooms. Once in the room, Mr. Santos would then tell Ms. Reyes that if she did not have sex with him, she would lose her job, lose her husband, and be sent back to the Philippines. Mrs. Reyes was terrified of Mr. Santos, and as a result, had frequent coerced sex with him throughout her employment. After the sexual activity, Mr. Santos would threaten that if Mrs. Reyes reported him she would be fired, he would tell her husband that she was unfaithful, and that he would prevent her from finding another job in the United States.
Ms. Reyes Quits Without Following The Employer’s Procedures
After about six months of giving into Mr. Santos’ sexual demands, Mrs. Reyes had finally had enough. She told her husband about all of the abuse that she had endured from Mr. Santos, and quit working for the Hotel Pagalit. Mrs. Reyes did not report any of the abuse to the hotel or its human resources department, nor did she follow any of the procedures outlined in the hotel’s handbook, partly because she could not read much English, and partly because she believed that Mr. Santos was the owner of the hotel, and that any recourse through the hotel’s channels would be futile. Mr. and Mrs. Reyes then hired an attorney to sue the hotel on his wife’s behalf.
The Employer’s Faragher Defense
In 1998, the U.S. Supreme Court in Faragher v. City of Boca Raton held that an employer may raise a defense to an action seeking to hold it vicariously liable to a victimized employee for a hostile work environment created by a supervisor with immediate or successively higher authority over the employee, where no tangible employment action is taken against the victimized employee, by showing that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm or otherwise. If the harasser himself holds such a high position in the company that he could be considered the employer’s alter ego, the defense is inapplicable. In a recent Florida case, a hotel attempted to assert the Faragher defense where it was the owner and general manager of the hotel who was sexually abusing and victimizing the plaintiff hotel worker, and the hotel fired the worker when she began to refuse the owner/general manager’s advances. Charest v. Sunny-Aakash, LLC, 2017 WL 416901 (M.D. Fla. 2017). The Court rejected the hotel’s Faragher defense, both because the hotel took retaliatory action against the worker and because the harasser was the hotel’s alter ego.
In Mrs. Reyes’ (fictional) case, the applicability of the defense is less clear. Mr. Santos had no ownership or formal management position with the hotel, but falsely represented to Mrs. Reyes that he did. And Mr. Santos had substantial influence over the actual owner of the hotel, who had the ultimate authority to hire and fire employees, determine their rates of pay, and assignments. Moreover, while the hotel’s procedures might have been reasonable, it is less clear whether Mrs. Reyes’ failure to follow them was unreasonable, particularly where she spoke and read little English, and arguably reasonably believed Mr. Santos had the power to fire her and that her complaints would therefore fall on deaf ears. Mrs. Reyes could also argue that Mr. Santos, who was married to the actual owner and manager of the hotel, was a de facto alter ego of the hotel, even if he did not hold a formal ownership or management position. In any case, availing oneself of the employer’s procedures and remedies for addressing sexual harassment can help to avoid the employer from successfully asserting a Faragher defense.
Hotel workers are particularly vulnerable to sexual harassment. For more on this subject, see the recent NPR article, Advocates Push for Stronger Measures to Protect Workers from Sexual Harassment.