ADEA: you can't always hide behind an independent contractor

Non-lawyers may not realize how often the Court of Appeals has to review its precedents in order to limit their applicability to new cases. The Second Circuit has done that in a ruling that grants older job applicants additional protection under the Age Discrimination in Employment Act.

The case is Halpert v. Manhattan Apartments, Inc., decided on September 10. Halpert applied for a job at Manhattan Apartments (MAI). An independent contractor for Manhattan Apartments told Halper that he was "too old" to show rental apartments. Halper sued under ADEA for age discrimination. The district court dismissed the case on the theory that the ADEA "does not apply to independent contractors." Well, that is true, kind of. In Robinson v. Overseas Military Sales, 21 F.3d 502 (2d Cir. 1994), the Second Circuit did say that ADEA does not cover claims brought by independent contractors. Only employees, not independent contractors, can sue for age discrimination in employment.

But Robinson does not mean that employees, or job applicants, cannot sue for age discrimination if the discriminator is an independent contractor. As the Court of Appeals puts it, "an employer ... can personally be liable for discrimination by an independent contractor ... who acts for the employer." ADEA applies no matter who is conducting the job interviews, be it a member of management or someone hired by management to conduct the interview. "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." Robinson is officially distinguished on these facts.

It is not certain whether the interviewer, Brooks, was acting on behalf of Manhattan Apartments when he interviewed Halpert. The employer says it had no control over the manner and means by which Brooks conducted interviews and made hiring decisions. But the evidence goes both ways. For example, the interview took place at the offices of Manhattan Apartments, and Brooks and another MAI associate told the career counselor who arranged the interview for Halpert that "they (not just Brooks) were looking for someone younger." As factual issues remain over the issue of MAI's control over the interview and hiring process, the district court was unable to conclusively find that Brooks was not MAI's agent with respect to that process.