Employer May Be Liable for Contractor's Discrimination

An employer who used a hiring agent to interview prospective candidates for a job may be liable for age discrimination where the contractor allegedly told a candidate that he was "too old" for the position, a federal appeals court has ruled.

The 2nd U.S. Circuit Court of Appeals reinstated an age discrimination lawsuit against Manhattan Apartments Inc. The panel said the Age Discrimination in Employment Act's prohibition on refusing to hire someone based on age applies whether an employer uses its own employees to interview applicants or uses third parties such as independent contractors.

The panel found a fact question about whether the interviewer was acting as a hiring agent.

According to the opinion, plaintiff Michael Halpert sought a job with Manhattan Apartments as a "shower," or a person who takes prospective tenants to available apartments.

Halpert was interviewed by independent contractor Robert Brooks, who allegedly told him he was "too old" for the job.

Halpert sued Manhattan in the U.S. District Court for the Southern District of New York, alleging age discrimination in violation of the ADEA.

The District Court granted summary judgment to Manhattan, finding that the company could not be held liable for age bias because Brooks was not an employee.

Halpert appealed to the 2nd Circuit, which reversed and remanded.

Because employer liability under the ADEA is "direct," an employer may not "fail or refuse to hire any individual because of such individual's age," the panel explained.

"That prohibition applies regardless of whether an employer uses its employees to interview applicants for open positions or whether it uses intermediaries, such as independent contractors, to fill that role," the appeals court said.

"If a company gives an individual authority to interview job applicants and make hiring decisions on the company's behalf, then the company may be held liable if that individual improperly discriminates against applicants on the basis of age," the court added.

Manhattan's liability will turn on whether Brooks was acting as its hiring agent or apparent hiring agent when he interviewed Halpert or whether Brooks was hiring on his own, the panel said.

The fact that Brooks was paid on commission, set his own hours and paid taxes as an independent contractor is not determinative of his status, the court said.

Although Manhattan and Halpert both presented evidence concerning who would be responsible for paying the person ultimately hired as a "shower," other disputed fact issues exist, the appeals court said.

Further, Manhattan has not established its lack of involvement in advertising the "shower" position or in creating its job duties, the panel said.

The court therefore found fact issues as to whether Manhattan's degree of control over the interview and hiring process made Brooks its agent with respect to that process.

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Halpert appeared pro se.Counsel for Manhattan are Louis Satriale and Joseph Gehring of Gehring, Tatman & Satriale in New York.