A real estate company used an independent contractor to interview and hire employees to show apartments. One of the candidates chosen for an interview was a 44-year-old man.

During the interview, the contractor allegedly told him he was “too old” for the job and turned him down. The candidate sued the company for age discrimination.

The company argued it couldn’t be held liable, because the biased decision was made by a contractor, not by anyone within the company.

But the court didn’t buy it. It ruled that the company’s responsibility for what happens during its hiring process, whether interviews are conducted and decisions are made by management and HR, or the process is outsourced to a third party.

Cite: Halpert v. Manhattan Apartments

When the economy begins picking up, companies will need to consider whether they want to rehire employees who’ve been let go. Not handling that question properly got this company tangled up in a big court battle.

An employee was laid off when the company decided her department was overstaffed. The company offered her transfers to a few other positions, which she turned down for various reasons. She also inquired about other openings for which she wasn’t qualified.

Eventually a job opened that the ex-employee was qualified for, and the company’s HR manager called her to discuss the position. She said she was interested but claims she got no further information about the offer.

When she found out a few weeks later the job had gone to someone nearly 30 years her junior, she sued the company for age discrimination.

Who takes the next step?

The employee claimed she was told the job was hers, then never contacted again. But the company argued it put the ball in her court. The HR manager said she probably would’ve been given the job, but she never sent in an application, so she was never officially considered.

Who’d the judge side with?

The employee. The court noted previous offers the company made to her, which appeared to be straight offers without the need for applications or interviews. The inconsistency looked suspect to the judge, who denied the company’s motion to dismiss.

You know what that means — a hefty settlement or a long, costly trial.

Cite: Owens v. Wellmont, Inc.

Just 28% of workers age 55 and older who were laid off in the past year have found new jobs, according to a recent CareerBuilder survey. That’s compared to 71% for laid-off workers age 25 to 34.

The end result: A lot of “overqualified” workers are applying for jobs. The majority (63%) of laid-off workers older than 55 say they’ve applied for positions below the level of their previous job — and 44% say employers have told them they’re overqualified.

While the influx of experienced job seekers gives companies an opportunity to hire experienced talent at a low cost, it also opens a legal can of worms. Here’s some advice for hiring managers on how to avoid claims of age bias:

• Don’t ask interview questions about age, just about relevant experience.
• Avoid snap judgments about overqualified applicants – for example, don’t assume they’ll demand a high salary or will leave as soon something more prestigious comes up. Use the interview to learn those things.
• Don’t interview someone you know you won’t hire. It’s much easier for an interviewed applicant to sue than for someone who just sent in a resume.
• Consult with HR if someone asks why they weren’t hired.

In 2008, the number of discrimination claims filed with the EEOC reached a record of 95,402, the commission announced recently. That’s up 15% from 2007.

The area of sharpest increase: age bias complaints. About 24,500 of those were filed in 2008, up 29% from 2007.

Of course, the increase isn’t simply because companies have ramped up discrimination against older workers. Experts say it’s likely more older workers are being laid off and are having a hard time finding new jobs.

But as the number of claims increase, its more important for managers to avoid giving the impression of bias to job candidates and employees.

Read the facts of this real-life case and decide: Who won?

The facts:

A 50-year-old candidate applied for a job with the company. He claimed the hiring manager regarded him highly during a phone interview but changed attitudes when they met in person. According to the applicant, he repeatedly asked the manager several details about the job, but the manager refused to answer. After learning he didn’t get the job, he sued, believing his age was the real reason.

The employer said:

To fight the claim, the company pointed to the person who was hired: a 47-year-old woman. Given such a small difference, how could the applicant’s age have played a factor?

Who won the case?

Answer: The applicant.

Why: It didn’t matter to the judge that the two candidates were only three years apart. There’s no set standard about how big an age difference there needs to be for a bias claim to be successful.

The real issue is whether or not the man’s age played a role in the decision that was made about him. And in this case, the company couldn’t prove it didn’t.

Cite: D’Cunha v. Eckerd Corp.

A 53-year-old woman applied for a job at a Starbucks store. During her interview, the hiring manager mentioned a concern with the availability listed on her application. The applicant then explained she would be flexible and could be available more frequently than the hours she listed.

Still, the woman wasn’t hired because of the availability listed on the application, as well as “disrespectful body language” during the interview and her conduct afterward.

The applicant called the manager and visited the store to ask why she wasn’t hired. Each time, the manager gave the same answer — the availability listed on her application– without mentioning the other factors. She sued, claiming her age was the real reason.

Starbucks tried to get the case thrown out, but the judge wouldn’t buy it. Why not?

The main factor was the inconsistency in the manager’s explanations. She said one thing in court, and another to the applicant — which, according to the woman, shouldn’t have been a valid reason after she explained her flexibility in the interview.

Also, the court examined the store’s recent hiring records. Of the 19 employees hired by the manager, none of them was older than 30.

That gave the judge enough suspicion to send the case to a jury trial.

Cite: Boyajian v. Starbucks

Read the facts of this real-life case and decide: Who won?

The facts:

An employee applied for a promotion to a managerial position. He met the minimum qualifications, so he was asked to interview, along with several other employees.

As you might guess, he didn’t get the job.

During his interview, he claimed the hiring manager yawned while he delivered his answers. To him, the supervisor’s yawning indicated the decision not to promote him had already been made, and the company only granted him an interview to cover up illegal bias.

He felt he was turned down because of his age. He was in his late 40s at the time, and the employee selected was 10 years younger. He sued.

The employer said:

He wasn’t promoted because the other applicants performed better in the interviews. They were all asked the same questions and their responses were scored. The candidate who was picked was the one who had the highest score.

Who won the case?

Answer: The employer.

Why: The court failed to see the yawn as evidence of discrimination. It might not have been the best thing to do during an interview, the judge said, but it would be unreasonable for a court or jury to believe the man’s theory.

Also, the employee couldn’t prove he should’ve gotten the job. He claimed to be the most qualified candidate, but the company felt otherwise. There was no reason to believe the company was wrong.

The bottom line: Courts don’t decide whether employers make the right hiring decisions. If they hire the best applicants and document how the decisions are made, they’ll be able to fight bias claims.

Cite: Arroyo-Audifred v. Verizon Wireless, Inc.

Without thinking, interviewers can make comments or ask questions that convince unsuccessful job applicants they were rejected out of illegal bias. Then it’s up to HR to clean up the mess.

In one recent case, a 61-year-old man applied for a supervisory position. His resume met the minimum requirements, so the company brought him in for an interview.

However, the interviewers didn’t think he was a good fit for the company’s management team. Despite his lengthy technical experience, he had spent very little time supervising employees.

Also, he spoke negatively about people he’d worked with previously and “came on a little bit strong” when answering questions about how he’d handle certain management scenarios. He didn’t get the job.

He sued, claiming he was rejected because of his age. His evidence?

Allegedly, one of the interviews asked him “out of the blue” how old he was and how long he planned on working before retirement. (The interviewer denied asking those questions.)

According to the applicant, the reasons the company gave for not hiring him were just a cover for age bias.

Who won the case?

Fortunately for the company, the court didn’t buy his argument. Even if the age-related questions were asked, it didn’t necessarily mean the decision was biased.

The company articulated several reasons the applicant wasn’t hired, based on his experience and his behavior during the interview. The company’s evidence included e-mails sent between the decision makers discussing those problems.

That was enough for the court to rule that age wasn’t a factor and to throw the case out.

Interviewer’s questions can still be dangerous

Does this mean hiring managers are free to ask candidates questions about age, race, sex, disabilities and other protected categories?

Of course not.

The company won, but the case still shows the danger of stray remarks by interviewers. If it weren’t for the alleged aged-based questions, the company wouldn’t have been dragged into court in the first place. And other employers in the same boat haven’t been as fortunate.

What the decision does show is that by keeping strong documentation that all hiring decisions were based on job-related criteria, companies can stay off the hook even when a candidate interprets an interviewer’s comments as biased.

Cite: EEOC v. Delta Chemical Corp.

Here’s what happened:

A chunk of the employer’s workforce was laid off. The company had a policy of not rehiring laid-off workers for at least a year after their termination.

A group of employees affected by the policy sued. Why? They claimed it disproportionately weeded out applicants over 40 years old.

Even though it was a uniform policy applied indiscriminately to any laid off worker, the company lost the case. Why? Simple statistics:

More than 90% of the people laid off — and therefore affected by the policy — were over 40. (The employees couldn’t sue for the layoff itself, but courts apply different standards to hiring decisions.)

Now, the company will have to settle or fight a costly battle in front of a jury.

Cite: E.E.O.C. v. Allstate Insurance Co.

The facts: A company advertised an opening, saying it was looking for someone with five to seven years of relevant experience. A man sent in a resume, even though he’d worked in similar jobs for roughly 30 years. He was told he wasn’t a good fit for the position, and someone who fit the ideal range was hired instead. The man sued, claiming he was turned down because of his age.

The employer said: Like the HR rep told the candidate, he wasn’t the right fit because he was overqualified. The company didn’t want to hire someone at his level to do the basic work the job required. The fact that having more experience also meant that he was older than the person who got the job was incidental, and not the motivation for turning him down.

Who won? The employer.

Why: The court ruled that the company’s reasoning was legit. There are good reasons for not wanting to hire an overqualified candidate, and the man failed to prove that his age was the real motivator.

Courts have routinely turned down claims that finding someone to be overqualified is an automatic indicator of age discrimination. Many have acknowledged that the term can be used as a cover for discrimination. But when companies can show a legitimate business reason for turning someone down, they’re usually in the clear.

Cite: Reeves v. Kaiser Foundation Health Plan, Inc.