A hospital may be liable for harassment by two of its contractors according to the district court of Puerto Rico. Santos v. Puerto Rico Children’s Hospital (D.P.R. 2012).
Santos, a hospital employee, claimed that she was sexually harassed by a doctor, Fernandez, who worked onsite and had staff privileges, but was not an employee, and an anesthesiologist, Lugo, who was an independent contractor. She alleged that the harassment continued after she reported their behavior to the hospital’s personnel director. She also alleged that the hospital retaliated against her for making her complaint by assigning her additional duties, changing her schedule, and forcing her to work through lunch.
The court rejected PRCH’s first argument that it could not be held liable because Fernandez and Lugo were not employees. The court said that an employer can be liable under Title VII for nonemployee harassment if it knew or should have known of the conduct and fails to take immediate and appropriate corrective action. The court also rejected PRCH’s second argument that Santos’s claim must fail because she did not use the company’s formal complaint process. The court held that Santos’s report to the personnel director was sufficient to show PRCH’s knowledge of her concern. The court further held that PRCH could be liable for retaliation, as the actions that followed Santos’s complaint were close in time to her complaint and could be seen by a reasonable jury as meeting the “materially adverse” standard necessary for successful retaliation claims.
Although contractors are not employees, you can and should address any complaints about inappropriate conduct they may commit toward employees. If the contractor works for a firm, notifying the firm is generally sufficient to prompt corrective action. If the contractor works alone, at a minimum, corrective action is appropriate, and severing of the relationship may be necessary for serious or persistent problems. And, be sure to respond to all employee complaints, even if they are not made following your designated process.