Hotel GM’s high-level job, his firing women for refusing sex, preclude Faragher-Ellerth defense

By Joy P. Waltemath, J.D.

Sexual harassment and retaliation claims under state law by two female hotel workers—one Filipino and the other called “white trash” by the general manager who hired and then fired them after they began refusing his alleged sexual demands—survived summary judgment by the hotel where they worked. A federal district court in Florida found the hotel’s attempted Faragher/Ellerth affirmative defense did not apply because the GM’s alleged harassment resulted in the “tangible employment action” of termination. Additionally, the GM held such a high position in the company (he was one of the owners, with complete control over their working conditions) that he could be considered the hotel’s “alter ego,” making it strictly liable for his behavior. Although the Eleventh Circuit had not yet ruled on this issue, the court found the women’s claims that they refused to give in to the GM’s continued demands for oral sex amounted to protected activity, so their retaliation claims also were for a jury. But the women’s Section 1981 race and national origin claims were defeated; telling one woman that “because she was Filipino, she should provide sex to Indian men” and calling the other “white trash” and saying that white women are “stupid, garbage, and lazy” were not severe enough to create a hostile or abusive working environment (Charest v. Sunny-Aakash, LLC, September 20, 2017, Moody, J. Jr.).

The general manager. The hotel’s GM, an Indian male, hired the Filipino female to work in the hotel’s housekeeping department. He hired the other woman, who was white, to work the hotel’s breakfast bar. The GM determined their rate of pay, the number of hours they worked, and their job assignments. He had complete firing authority, telling them he was their boss and he owned the hotel.

The Filipino housekeeper. Throughout the Filipino worker’s three years of employment, the GM allegedly threatened her with the loss of her job, her family, and her husband—and with being sent back to the Philippines—if she did not give him oral sex and have sexual intercourse with him, because, being Filipino, she should be forced to have sex with Indian men, who he claimed were “superior.” She was afraid of him physically and because of his position; he said if she reported him, she would be in “big trouble” because he was the “big boss,” powerful, and could do anything he wanted, including preventing her from finding another job. She gave in to his increasing demands, including forced sex with the GM and another man, because she could not risk losing her job.

The white breakfast bar worker. After the breakfast bar worker was hired two years later, the GM also allegedly forced the two women to engage in group sex with him. The GM repeatedly told the second woman that because she was local “white trash” she should give him oral sex or have intercourse with him, she testified. If she did not, he threatened her with termination, but if she gave in, he rewarded her with extra hours and promotions. He told her that white women were lazy, stupid, and garbage, that his Indian investors would dominate the “white trash” who lived in their small town, that she was white trash and only good for providing sex to powerful men like him, and that he could do what he wanted because he had power and money. She was afraid to tell anyone about the GM’s behavior because she said she needed to keep her job and he told her she would never work again if she complained.

Fired. But the Filipino woman testified that she felt more powerful knowing that the other worker, who was also being sexually abused, was a witness. As a result, in May 2016 she refused his demand for sex; he yelled at her and she slapped his face; he then fired her. And as the GM’s alleged demands for sex with the white woman increased (he demanded that she have sex with “him and his friends” and also demanded anal sex), she refused, telling him that what he was doing was illegal. Also in May 2016, he fired her too. Both women alleged that they were fired after refusing oral sex.

Race, national origin. The court quickly dispensed with the former employees’ Section 1981 racial and national origin harassment claims because the comments the GM made about their race or national origin were not sufficiently severe or pervasive to alter the terms and conditions of their employment and create an abusive working environment as a matter of law. The comments about the Filipino woman’s national origin were infrequent; although the comments about the white woman being “white trash” and that white women are “stupid, garbage, and lazy” allegedly occurred all the time, the court found these comments were not sufficiently severe.

Sexual harassment. As for the employees’ sexual harassment claims, the hotel argued it was entitled to judgment because the Faragher/Ellerth affirmative defense applied, but the court said no. “The defense does not apply when the supervisor’s harassment results in a ‘tangible employment action’ like termination,” which was the case here, said the court. And even assuming for argument’s sake that the GM’s harassment did not result in a “tangible employment action,” the court pointed to substantial record evidence that the GM was an “alter ego” of the hotel, holding such a high position in the company, as an owner and general manager with total control over the employees’ work, to render the hotel strictly liable for his behavior. He frequently told the employees that he was their only boss and they could complain to only him, that he was an owner, and that he could do what he wanted because he had the “power.” To apply the Faragher/Ellerth defense under these circumstances would be contrary to binding law, concluded the court, sending their sexual harassment claims to a jury.

Retaliation. The employees’ retaliation claims were premised on the timing of their refusal to accede to further sexual demands from the GM, after which he fired them. The hotel argued that it was entitled to summary judgment because the women’s rejection of sexual advances was not “protected activity” under Title VII. While there is a circuit split as to whether a person who rejects a supervisor’s sexual advances has engaged in protected activity, one that the Eleventh Circuit had not yet decided, the court here found the record reflected the women were pressured to engage in sexual acts with the GM, which they attempted to reject, they knew that what he was doing was wrong, and when they refused his demands for oral sex, they were immediately terminated. First, this was not merely one single, express rejection; secondly, the court agreed with the Sixth Circuit’s reasoning in EEOC v. New Breed Logistics that if an employee demands that her supervisor stop engaging in unlawful harassment by resisting or confronting the supervisor’s unlawful harassment, “the opposition clause’s broad language confers protection to this conduct.” To hold otherwise would undermine the fundamental purpose of Title VII’s anti-retaliation provisions, making those protections “illusory.”

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