This article previously appeared in The Legal Intelligencer
What do a sexually harassing parrot, a racist patient and a nurse who slaps her ward all have in common? Each teaches employers the same hard lesson when it comes to employee harassment: No matter who the harasser is, the employer has the same duty to promptly take effective action to protect the employee from the harassment.Starting with the parrot: If a parrot flew into a workplace and began to spew foul language and invective at only the female employees present, would the employer be liable for sexual harassment? An absurd question? Not to the 7th U.S. Circuit Court of Appeals, which posed this hypothetical when concluding that a hospital could be liable for the sexual harassment of a doctor who had staff privileges at, but was not an employee of, the hospital.
In this case, Dunn v. Washington County Hospital, a nurse at a small hospital in Illinois claimed that the chief doctor for obstetrics "made life miserable for her and other women on the staff." The lower court had thrown the nurse's case out of court on the basis that because the chief doctor was not an employee of the hospital, but an outside physician who had received staff privileges from it, the hospital did not have the authority to control his conduct, and therefore could not be liable for it.
The 7th Circuit disagreed. It found that although the district court's analysis was a correct statement of general negligence principles, these principles were "irrelevant" for a sexual harassment analysis under Title VII.
Under Title VII, an employer's liability is "direct" and not solely "derivative" from the acts of its employees. For this reason, the "ability to 'control' the [misbehaving] actor plays no role." What is crucial and determinative is that the employer, upon receiving notice of the misbehaving actor's conduct, invoke and reasonably utilize the "arsenal of incentives and sanctions" that are available to it to protect the employee.
With this as background, the court's fowl example appears less bird-brained and more of a bland statement of law. In fact, as the court pointed out, under the Restatement of Agency, a person can be liable if she allows others, whether or not they are her "servants or agents," upon premises under her control and then negligently permits that person (or bird) to cause harm.
Applying this law to its own hypothetical, as well as the facts of the case, the court found that in the case of the sexually harassing parrot, the employer would be required to "exclude the offending bird from its premises;" and in the case of the sexually harassing non-employee doctor with staff privileges, the nurse should have an opportunity to adduce evidence that the hospital knew of his conduct and responded feebly or not at all.
Although it has not yet resulted in a court decision, many employers in the area are aware of the case of the racist patient (more accurately, the patient's racist husband). In this case, the husband of a woman in labor at Abington Hospital demanded that his wife not be treated by African-American employees. The hospital responded to this patently unreasonable demand by acceding to it, resulting, at least according to the complaint recently filed in the Eastern District of Pennsylvania, in the hospital taking such extreme actions as barring African-American food workers from bringing food to the patient's room.
The hospital was promptly and roundly condemned in the press for its actions and now must defend itself in court. As in the case of the sexually harassing parrot or independent contractor doctor, the hospital will likely be unable to rely on the defense that the discriminatory impetus originated with a patient's husband, instead of a hospital employee.
An equally if not more shocking case has resulted in a surprising decision from the federal district court in Iowa. In Van Horn v. Specialized Support Services, the employee, Betty Van Horn, worked for an agency that provided services to disabled individuals who were attempting to live independently. Her patient was a 21-year-old man with Down syndrome who was residing in an assisted living home.
Van Horn alleged that her patient made advances toward her, including physical touching. The interactions culminated with Van Horn slapping her patient after he reached for her breast. When Van Horn's employer learned that she had slapped her Down syndrome patient, it fired her. Van Horn then sued in federal court.
After a bench trial, the federal judge awarded Van Horn $82,000 as a result of her discharge, notwithstanding her physical assault on a disabled patient with limited capacity for understanding the offensive and inappropriate nature of his conduct. In fact, the court concluded, the act of the nurse slapping this patient was itself protected conduct under the law because it was in "opposition" to perceived sexual harassment. The court stated because the nurse had a reasonable, good faith belief that she was experiencing sexual harassment, she "[was] protected from retaliation for opposing it by slapping [her patient]." Furthermore, because the employer did not respond adequately to the patient's conduct, this constituted a "ratification" of it or a negligent failure to stop it.
It appears fair to question whether the court should have given more weight to the unreasonable manner in which this nurse "opposed" perceived sexual harassment by her patient. Expecting a professional health care provider to refrain from physical assaults on a severely disabled patient, even such a patient who engages in inappropriate sexual overtures toward the provider, does not appear to be an illegitimate standard for an employer to insist on. However, to the extent nurse Van Horn's employer negligently left her to fend for herself after learning of the patient's conduct towards her, it invited the disaster that ultimately occurred.
These cases make clear employers cannot claim that because they had no authority to control the conduct of the harasser, their employees had no recourse when subjected to the harassment. In fact, employers must respond promptly and appropriately when employees make a claim of harassment, whether the "source" of that harassment is another employee, an independent contractor, a patient, a guest of the employer's or a customer invited onto the premises by the employer. Instituting a no-parrot zone is probably a good idea, too.
Paul D. Snitzer is a labor and employment law partner at Duane Morris. He regularly advises clients on all issues relating to the employer-employee relationship.
This article originally appeared in The Legal Intelligencer and is republished here with permission from law.com.
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