Employer May be Liable for Contracted Hiring Manager's Age Discrimination

September 14, 2009 (PLANSPONSOR.com) - An employer may still be on the legal hook for violating federal age discrimination laws even if the hiring manager accused of potential illegal acts was an independent contractor, a court has ruled.

The 2nd U.S. Circuit Court of Appeals delivered that decision as it reversed a lower-court ruling throwing out a suit by the job applicant/plaintiff after deciding it didn’t matter that hiring manager Robert Brooks was not an employee of Manhattan Apartments.

Michael Halpert applied to Manhattan Apartments to be a “shower,” someone who takes prospective buyers through apartments, and charged that Brooks dismissed him because he was “too old” for the job, in violation of the Age Discrimination in Employment Act (ADEA).

The appellate court said the issue of liability will turn on whether Brooks was an agent doing the hiring for Manhattan Apartments or whether he was doing the hiring for himself. The court found  “disputed issues of material fact remain as to whether Manhattan Apartment Inc.’s degree of control over the interview and hiring process for the Shower position rendered Brooks” the company’s agent.

“Rather, the issue is whether — assuming for the moment that Brooks interviewed Halpert for a position with the company or that the company led Halpert to believe he was applying for a position with them, rather than Brooks — an employer (Manhattan Apartments Inc.) can potentially be held liable for discrimination by an independent contractor (Brooks) who acts for the employer,” the 2 nd Circuit asserted. The panel said that the “answer to that question is yes.”

The court said its finding still holds if an independent contractor is only under the employer’s direction for specific tasks, but also operates independently in other job areas. 

The 2nd Circuit ruling is available here .