The legal rule used to be simple: An employer isn’t responsible if an independent contractor discriminates. A new court ruling has changed all that.
Consider the details of the federal appeals court case, Halpert v. Manhattan Apartments, Inc.:
Plaintiff Michael Halpert interviewed with Robert Brooks for a position to show rental apartments. Brooks was an independent contractor, not an employee, of realtor Manhattan Apartments, Inc. Halpert alleged he was told by Brooks that he was “too old” for the position. Halpert then sued Manhattan Apartments — not the independent contractor Brooks — for age discrimination.
In an earlier decision, Robinson v. Overseas Military Sales Corp., a court ruled that such claims don’t apply to employers who hire independent contractors.
But the appeals court in the Halpert case said, in effect, “We’re changing the rules.”
To quote the writings of the court: “[Manhattan Apartments] can potentially be held liable for discrimination by an independent contractor (Brooks) who acts for the employer … The prohibition [on discrimination] 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.”
That’s legalese for: If the contractor is acting on your behalf, and the contractor discriminates, you’re on the hook.
The take-away: Be careful about the duties that you hand over to an IC, especially responsibilities for hiring and firing. If the IC blunders and violates anti-discrimination statutes, the victim could come your company’s wallet.