In Dunn v. Washington County Hospital, No.05-1277 (7th Cir. Nov. 17, 2005), the Seventh Circuit held that a hospital could be liable under the Title VII of the Civil Rights Act of 1964 for sexual harassment of female nurse by a physician with staff privileges, despite the fact that the physician was not an employee of the hospital.

The Court stated that “[a]n employer is responsible for every “tangible employment action . . . plus any other discriminatory term or condition of employment that the employer fails to take reasonable care to prevent or redress.” Thus, the fact that the offending physician was an independent contractor, rather than an employee, did not relieve the hospital of liability for harassment visited on the nurse.

The Court explained that employers “have an arsenal of incentives and sanctions . . . that can be applied to affect conduct. It is the use (or failure to use) these options that makes an employer responsible – and in this respect, independent contractors are no different from employees.” The Seventh Circuit further explained that the key issue is not the “genesis of inequality,” but rather “what does matter is how the employer handles the problem.” If the hospital/employer was aware that the contractor/physician was making life miserable for women (but not men), and did nothing in response, liability could exist under Title VII.

To emphasize this point, the Seventh Circuit even said that “it makes no difference whether the [wrongdoer] . . . is human.” The Court gave the following farfetched example:

Suppose a patient kept a macaw in his room, that the bird bit and scratched women but not men, and that the Hospital did nothing. The Hospital would be responsible for the decision to expose women to the working conditions affected by the macaw, even though the bird (a) was not an employee, and (b) could not be controlled by reasoning or sanctions. It would be the Hospital’s responsibility to protect its female employees by excluding the offending bird from its premises.

The Dunn decision reinforces the fact that employers must be prepared to hold not just employees to appropriate standards of behavior, but also contractors, visitors and others who are welcomed into the workplace. Employer anti-discrimination policies should make clear that discrimination and harassment will not be tolerated by employees or independent contractors and that employees should be encouraged to report suspected unlawful discrimination by other employees and independent contractors.

Employers should also be prepared to act – or use the available “arsenal of incentives and sanctions” – when faced with allegations of unlawful discrimination or harassment against contractors. The Dunn case serves as a reminder for all employers to remain proactive in eliminating discrimination, regardless of the source.

For more information, contact:

Samuel K. Charnoff
202-857-6221
charnoff.samuel@arentfox.com