The Age Discrimination in Employment Act makes it unlawful for employers to discriminate against an individual older than 40, and specifically includes a prohibition against failing to hire someone based on his or her age.

This prohibition has been expanded by holding an employer may be held liable for discrimination by third parties, including an independent contractor who is authorized by the employer to make hiring decisions on its behalf.

This was the issue in a recent case. An apartment complex retained an independent contractor to make its hiring decisions. During an interview with an applicant, the contractor allegedly said that the applicant was "too old," and that the apartment complex only wanted to have employees who were as young as its residents.

The unsuccessful applicant (who was over the age of 40) did not receive the job. He sued under the ADEA, claiming age discrimination. The apartment complex defended the claim by asserting that it didn't make the adverse employment decision.

The court ruled for the rejected applicant. It held that the independent contractor was the agent of the apartment complex in the hiring process. The apartment complex trained the contractor in what it was looking for in an employee. The successful applicants would earn commissions from the apartment complex, and the interviews took place at the apartment complex's office.

The evidence established that the independent contractor was working on behalf and for the benefit of the apartment complex. This is an important decision for employers who use third parties (independent contractors) to handle their hiring decisions. The employer may still be liable for violations of discrimination statutes like the ADEA if the independent contractor commits a wrongful and discriminatory act.

Opinions are solely the writer's. James Jorgensen practices law at Hoeppner Wagner & Evans in Valparaiso.