Control Harassers or Face Liability for Their Actions

March 3, 2006

Excerpted from Illinois Employment Law Letter, written by attorneys at the law firm Ford & Harrison LLP

The Seventh U.S. Circuit Court of Appeals seems to feel emploeyrs aren't sufficiently aware of the role of macaws in sexual harassment law and wants to correct that deficiency. For that we are grateful.

Dr. Gruff
The facts of this case are puny. Lisa Dunn was a nurse at Washington County Hospital, a 59-bed facility in Nashville, Illinois. She complained that the head of obstetrics and emergency services, Dr. Thomas Coy, harassed her and other female employees at the hospital. So she quit her job and sued her former employer under federal sex discrimination laws.

The trial court dismissed Dunn's case, finding that Coy wasn't an employee of the hospital. Instead, he merely had staff privileges, which he used to provide services directly to patients. In short, he was an independent contractor. The hospital wouldn't be responsible for his meanness under the principle of respondeat superior (that is, an employer's liability for the intentional wrongful acts of an employee). So it wouldn't be liable under federal discrimination rules, either.

Enter the macaw
Wrong, said the Seventh Circuit. An employer's liability for the harassment of its employees due to their sex is direct, not indirect. Liability, if it exists, arises from what the employer does or doesn't do. It isn't derived indirectly because of some relationship the employer has to the source of the harm.

And if that isn't entirely clear, said the court, consider the wayward macaw: "Suppose a patient kept a macaw in his room, that the bird hit 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."

So what, you ask, should the hospital do about the macaw? Simple, the court thought — exclude "the offending bird from its premises." And that goes for doctors who are independent contractors, too. According to the court, "The employer's responsibility is to provide its employees with nondiscriminatory working conditions. The genesis of inequality matters not; what does matter is how the employer handles the problem."

Thus instructed, the lower court must rehear the nurse's complaint in light of the macaw principle. Dunn v. Washington County Hospital, No. 05-1277, 7th Cir., 2005.

Final word
Well explained, we think.

Copyright © 2006 M. Lee Smith Publishers LLC. This article is an excerpt from ILLINOIS EMPLOYMENT LAW LETTER. Illinois Employment Law Letter does not attempt to offer solutions to individual problems but rather to provide information about current developments in Illinois employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.

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