Friday, November 18, 2005
Yesterday, the Seventh Circuit issued an opinion authored by Judge Frank Easterbrook in the employment discrimination case of Dunn v. Washington County Hospital. Dunn, a hospital nurse, alleged that a doctor harassed and discriminated against her. The district court ruled for the hospital. Even if workplace conditions were discriminatory, the district court said, the hospital could not be liable since the doctor was an independent contractor with staff privileges and not an employee. Since he was not an employee, the hospital could not control his conduct.
The Seventh Circuit reversed. Judge Easterbrook wrote that it was irrelevant that the doctor was an independent contractor, since under Faragher and Ellerth, all that mattered was whether the employer had used its arsenal of incentives and sanctions (including discharge) to change the doctor’s conduct. Judge Easterbrook explained:
[I]n this respect independent contractors are no different from employees. Indeed, it makes no difference whether the actor is human. 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 ... It would be the Hospital’s responsibility to protect its female employees by excluding the offending bird from its premises.
Thanks to Paul Secunda for calling my attention to this case.