The Analogy Of The Macaw Bird: Employer Liable For Harassment By Independent Contractor

Dunn v. Washington County Hospital, 2005 U.S.App. LEXIS 24660 (7th Cir. 2005)

 The employee, a nurse, alleged that the chief surgeon made conditions miserable for her and other women on the staff.  The lower court assumed that women were subjected to worse conditions than men but dismissed the case since the perpetrator was not employed by the hospital.  On appeal, the Seventh Circuit ruled that an employer could be liable for sex discrimination of its employees by an independent contractor.  It went on to state that the ability to control actor, whether it is an employee, an independent contractor, or a customer,  plays no part in the analysis of Title VII claims due to liability being direct rather than derivative. 

 The Court then uses an analogy between the independent contractor and a macaw bird to demonstrate why the hospital is liable.  The analogy is as follows: A patient keeps a macaw in the room which attacks women but not men.  The hospital was aware of the situation but failed to correct the situation.  The hospital would be responsible for failing to take corrective action, regardless that macaw was not an employee nor could it control the macaw¬ís actions, since the hospital allowed the women to be subjected to inferior terms and conditions of employment.

 The case was remanded to the lower court for further proceedings to determine if the employees allegations of sex discrimination are actionable under Title VII. 

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