Dr. Barbara Salamon was a physician with hospital staff privileges at Our Lady of Victory Hospital when she claims her supervisor began sexually harassing her.
Generally, physicians with hospital staff privileges are deemed independent contractors and are not offered the same civil protections as employees. But regardless, Salamon filed a sexual harassment lawsuit in 1999, claiming the Lackawanna, N.Y., hospital violated her Title VII and New York City Human Rights Law (NYHRL) rights.
The key to the 2nd Circuit resuscitating the lawsuit was the panel's willingness to look beyond Salamon's "independent contractor" label to the reality of the working relationship, says Anthony Costantini, a partner with Duane Morris and the appointed amicus curiae on the case. The 2nd Circuit emphasizes the most important factor that differentiates an employee from an independent contractor is the employer's right to control the manner and means by which an employee works, Costantini says.
Significantly, the hospital imposed standards on Salamon that she argues went beyond measuring the quality of her patient treatment, such as requiring her to do certain procedures or prescribe
certain drugs in order to maximize hospital profit.