Last year we asked whether a vulgar parrot could create a hostile work environment. This arose from a real case where a parrot who was kept by a patient in an expensive long term care facility repeatedly shouted sexual imprecations to the attending female nurse, who was none too happy about it. She complained to her supervisor about the hostile work environment but she was laughed off. She sued for sexual harassment. and won.
We asked the question: Can the parrot be liable for sexual harassment?
The better question, we noted, should be: Can an employer be liable for creating a hostile work environment if it permits sexual comments to be made to an offended employee, whether by a parrot, a co-worker, or a mail deliverer?
A new case illustrates what happens when non-employees sexually harass an employee. A female employee at a hospital claimed that she was harassed by a doctor and anesthesiologist who worked as independent contractors. The doctor was not an employee and was paid directly by patients, and was merely affiliated with the hospital in that he performed medical work there and was allowed staff privileges. The anesthesiologist worked at the hospital as an independent contractor.
The doctor made sexually explicit comments to the female employee, asking her to “go out to a motel to have sex.” She complained about this to the hospital's personnel director, but the harassment continued. Then doctor asked told her that he wanted “a piece of that” and that the two should “go to bed” together, and while they were performing an X-ray together he began making “sexual jokes” and rubbed his genitals across her back. He later spanked her bottom as he passed her.
She claimed that the anesthesiologist also used “hostile and sexual language” toward her on a number of occasions during the same time period, and rubbed her backside with his genitals.
The Court rejected the hospital's argument that it could not be held liable for the alleged harassment because the doctor and anesthesiologist were not hospital employees. The Court held that: “[A] plaintiff's employer may indeed be liable for a non-employee's acts of harassment under Title VII if it knows or should have known of the conduct and fails to take immediate and appropriate action.” See Santos v. Puerto Rico Children's Hosp.,
As we said last year, the moral of the story is simple -- a hostile work environment can be created in any way or by any means if the employer does not address an employee's complaint that the workplace is hostile or that she has experienced sexual harassment .