The Second Circuit has clarified that an employer can be liable under the Age Discrimination in Employment Act (“ADEA”) for an independent contractor’s decision to discriminate against a job applicant because of his or her age.  In Halpert v. Manhattan Apartments, Inc., Michael Halpert alleged that Manhattan Apartment Inc. (“MAI”) refused to hire him for a position showing rental apartments because he was “too old.”  The district court granted summary judgment for MAI, finding that the company could not be held liable for discrimination because Robert Brooks, the individual who interviewed Halpert for the position, was an independent contractor and not an employee of MAI.  The Second Circuit reversed and remanded the case to the lower court, concluding that “[a] company’s potential liability does not depend on whether the individual hiring for the company … is an employee or an independent contractor” but rather “[whether] a company gives an individual authority to interview job applicants and make hiring decisions on the company’s behalf…and that individual improperly discriminates against applicants on the basis of age.”  

This case is significant because it rejects the misconception that employers can absolve themselves from potential liability under federal anti-discrimination laws by using independent contractors and other third parties to conduct human resource functions on their behalf.  In short, the ADEA 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.”

On August 28, 2009, the Third Circuit issued a ruling in Prowel v. Wise Business Forms, Inc., which clearly states that an employee can bring a claim of gender stereotyping sex discrimination under Title VII.  The case was initiated by Brian Prowel who alleged that his employer harassed him and terminated his employment because of his gender.  According to the complaint, Prowel was subjected to multiple instances of harassment, including being called “Princess” and “Rosebud” because he did not fit in with the other men at Wise, i.e., his effeminate mannerisms did not conform to those of the “stereotypical male.” 

Finding that the examples of harassment that Prowel cited in his complaint were all examples of discrimination based on sexual orientation, the district court granted summary judgment for Wise.  The Third Circuit reversed however, concluding that Prowel may have been harassed because of his failure to conform to gender stereotypes and not only because of his sexual orientation.  According to the court, “[t]here is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.” Accordingly, “as long as the employee…marshals sufficient evidence such that a reasonable jury could conclude that harassment or discrimination occurred because of sex, the case is not appropriate for summary judgment.” 

This ruling is a significant victory for gay and lesbian employees because it affirms the notion that all employees, regardless of sexual orientation, can bring a discrimination claim under Title VII based on a theory of gender stereotyping.  For information on The Employment Law Group® Law Firm’s LGBT Discrimination Practice, click here.