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EMPLOYER CLIENT ALERT: October 2009 Employer Can Be Held Liable for Age Discrimination by Independent Contractor Acting on its Behalf A job applicant brought suit against an employer under the Age Discrimination in Employment Act (“ADEA”) after the interviewer allegedly told him he was too old for the position. On appeal from a grant of summary judgment in favor of the Employer at the trial level, the Third Circuit Court of Appeals in Halpert v. Manhattan Apartments, Inc., 2009 WL 2881388, held that an Employer can be held liable for age discrimination perpetrated by an independent contractor who acts on its behalf, with actual or apparent authority. Under the ADEA, 29 U.S.C. sec. 623(a)(1), an employer may not “fail or refuse to hire…any individual…. because of such individual’s age.” In Halpert, Defendant Manhattan Apartments, Inc., retained a person whose was responsible for conducting interviews (along with one of its employees) to fill a position with the Company showing rental apartments. During the course of the interview, the independent contractor and the employee of Defendant Manhattan Apartments, Inc, told the Plaintiff that he was “too old” for the position and that they (the interviewers) were looking for someone younger. The issue in the case was whether the independent contractor was acting as the hiring agent, or apparent hiring agent, for the Defendant Company, when he interviewed the Plaintiff for the position of showing apartments. The Defendant Company had argued that it had no control over the manner and means by which the independent contractor conducted the interviews and made hiring decisions. The Plaintiff presented evidence showing that (1) the interview took place at the Defendant Company’s offices; (2) Plaintiff was interviewing for a position with the Company, not with the independent contractor; and (3) Plaintiff would be compensated not by the interviewer, but rather, by the Defendant Company. Because there were disputed questions of fact on that limited issue, the Third Circuit reversed the grant of summary judgment and remanded back to the District Court to determine whether the degree of control over the interview and hiring process for the position rendered the independent contractor an agent of the Defendant Company with respect to that process. Bottom Line: Even if an Employer uses a third party to conduct interviews to fill a position at the Employer’s offices, as long as the Employer gave that person authority to interview job applicants and make hiring decisions on the Company’s behalf, then the Employer can be liable if the independent contractor improperly discriminates against applicants on the basis of age. This Laddey, Clark & Ryan, LLP Client Alert provides information of general interest to our readers. It is not intended, and should not be used, as a substitute for consultation with legal counsel. If you have any questions regarding specific issues raised in this Employer Alert, you may contact Thomas Ryan, Esq. or Linda Day, Esq. of Laddey, Clark & Ryan’s Employment and Labor Practice Group at (973)729-1880. The Employment and Labor Practice Group
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