| In a case brought under Title VII for sex harassment, an employer was held liable for the acts of an independent contractor working on site when it was brought to the employer’s attention and the employer failed to intervene.
Lisa Dunn worked as a nurse at Washington County Hospital in Nashville, Illinois It is a small hospital, with only 59 beds, so members of the staff must be able to work well together.
Dunn filed charges that the head of obstetric and emergency services made life miserable for her and other women on the staff. At trial, the case was thrown out even though she could prove that women were treated differently than men because the doctor was an independent contractor and not an employee of the hospital.
He had staff privileges, which he used to furnish medical services directly to patients. The Hospital therefore could not “control” his conduct, the judge ruled, and therefore could not be liable for it.
The 7th Circuit disagreed and went on to say that it makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.
The ability to “control” the actor plays no role. The employer’s responsibility is to provide its employees with non-discriminatory working conditions and what matters is how the employer handles the problem.
Dunn also cited retaliation for complaining about the doctor. The 7th Circuit dismissed the claim for two reasons.
First, although he threatened her career, the Court held that it is well established that unfulfilled threats that result in no material harm cannot be considered an adverse employment action under Title VII.
Second, when Coy allegedly physically attacked her, Dunn complained to the Hospital’s management about this assault and battery but she also never came to work again, sending a letter of resignation a few days later.
The Court held that because se failed to give the hospital time to investigate and respond, the retaliation could not hold up.
When independent contractors work onsite, liability can attach to the employer for the independent contractor’s action.
A good practice would be to have a short orientation for any independent contractor working onsite that includes a review of the company’s harassment policies.
Dunn v. Washington County Hosp., No. 05-1277 (7th Cir. Nov. 17, 2005). | 