Long-running age discrimination case against IBM enters discovery, as judge trims off some claims
- Reference: 1617184991
- News link: https://www.theregister.co.uk/2021/03/31/longrunning_age_discrimination_case_against/
- Source link:
The former workers allege they were fired as part of a campaign to replace older employees with younger ones. IBM has denied any allegations of wrongdoing.
[2]
[3]In a 77-page order [PDF] , Manhattan US district judge Valerie E. Caprioni affirmed that former Big Blue staffers that had agreed to arbitration proceedings could not participate in the class and collective-action suit. This ruling encompassed those workers that had already exhausted their avenues for redress through third-party arbitration.
The original complaint
[4]PDF
was first filed by former IBM workers Edvin Rusis, Henry Gerrits, and Phil McGonegal in September 2018. An additional plaintiff, David Ho Eng, was added in December. They alleged IBM prioritised older workers for layoffs, and refused to consider them for other open positions. This, they argued, violates anti-age discrimination legislation in the states of California, North Carolina, and New Jersey.[5]
The plaintiffs aim to claim a class that could consist of almost 13,000 people over the age of 40 that left IBM after July 2017.
"Over the last several years, IBM has been in the process of systematically laying off older employees in order to build a younger workforce. Between 2012 and the present, IBM has laid off at least 20,000 employees over the age of forty. Such discriminatory layoff and hiring practices constitute unlawful discrimination under the ADEA and state anti-discrimination law," the suit claimed.
The complaint points to [6]a report by ProPublica and Mother Jones published in March 2018 that alleged the existence of systematic efforts within the company to weed out older employees, with over 20,000 American employees aged over 40 axed between 2013 and 2018.
Other ammunition came from Big Blue itself: in the 2018 complaint, the plaintiffs cited a 2006 paper published by IBM’s consulting branch that implied older workers were less valuable than millennials. The paper claimed newer generations were “much more innovative and receptive to technology,” and thus better able to adapt to digital transformation processes, which “can yield substantial and permanent incremental capabilities and increases in productivity.”
In her ruling, Judge Caprioni allowed the claims of Rusis and Gerrits to continue, although she dismissed Eng’s, as he failed to properly exhaust his avenues for redress through the Equal Employment Opportunity Commission (EEOC) before filing suit.
Caprioni also noted that when Eng first filed a charge of discrimination with the EEOC and the California Department of Fair Employment and Housing, he didn’t raise any allegations of age discrimination, but rather claimed he was treated unfairly over his race and national origin. Additionally, Eng is barred from “piggybacking” on any future separate EEOC charge in the future.
While IBM alleged McGonegal had similarly failed to exhaust EEOC avenues before filing suit, Caprioni said there was limited information available to definitively prove this, and thus further discovery is required to determine whether he belongs in the suit or should be dismissed.
IBM and the plaintiffs were ordered to meet before April 23 to determine a schedule for discovery. As the case has been in progress for over two years, the court said it would not allow any new plaintiffs to join the action, although it may reconsider in the future.
In a [7]statement provided to legal news site Law360 by the counsel for the plaintiffs, Shannon Liss-Riordan of Lichten & Liss-Riordan PC, said: "We are pleased that we will finally get to begin discovery, which will help move the case forward."
[8]
The Register has asked IBM for comment. ®
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[1] https://www.theregister.com/2018/09/17/ibm_sued_agism/
[2] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2YGScnnE-Y-HEeYaQqDlXkQAAAA4&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[3] https://regmedia.co.uk/2021/03/30/rusis_et_al_vs_ibm.pdf
[4] https://regmedia.co.uk/2018/09/17/ibmdiscriminationsuit917.pdf
[5] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33YGScnnE-Y-HEeYaQqDlXkQAAAA4&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[6] https://www.theregister.com/2018/03/22/ibm_age_discrimination/
[7] https://www.law360.com/technology/articles/1369417/ibm-must-face-some-claims-in-age-bias-collective-action
[8] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YGScnnE-Y-HEeYaQqDlXkQAAAA4&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[9] https://whitepapers.theregister.com/
From the 2018 Pro Publica report
" The more points a person garnered, according to the former employee, the more protected she or he was from layoff or other negative job change; the fewer points, the more vulnerable.[...] Employees were awarded points for being relatively new at a job level or in a particular role. Those who worked for IBM for fewer years got more points than those who’d been there a long time. "
In one easy lesson, how to ensure an inexperienced workforce contributes to poor corporate performance. Short sight can usually be corrected by spectacles, but the spectacles that inevitably result don't seem to correct this particular kind of short sight.
Resistance to Change
As someone who has officially been declared senile by Feraldom I think I have learned something about changes. Overall they lead to better lives but not all changes are are good. In fact some are outright bad. Also, most good changes have problems associated with them. So my wariness to a new idea may be two-fold. One it might be a repackaging some idea from the past that is either obsolete or is still stupidly bad. Two it might be legitimately new but often the problems with it are not obvious and it takes some marination for the problems to become apparent.
An example is a smartphone. Overall they are net positive for the user. Very flexible, powerful devices that are extremely portable. The apps extend its functionality to make them truly a necessity. However they do allow unethical data slurping along with other issues. On balance I would rather have a smartphone than a landline; in fact I do not have a landline.
Manglement at Itty Bitty Morons thinks any reasonable objection based on experience is a Luddite refusing to change when it is experience saying look into it a little more before pulling the trigger.
Re: Resistance to Change
The thing about the Luddites was not that they were resistant to change per se . They were resistant to change that directly rendered them unemployed and therefore penniless. Even their wrecking was selective: they would break the machines that threatened their livelihood while leaving other machines that didn't intact on the same factory floor. [Brian Bailey: The Luddite Rebellion, Sutton Publishing 1998]
So being a Luddite should be considered quite rational under some circumstances, provided you don't misinterpret the word or merely use it as a term of abuse.
With IBM its all about the money.
They bid for contracts at below market value. Immediately they lose money. Knee jerk reaction is to get rid of the incumbent support personnel (too expensive) and offshore it. Fuck the customer. From then on its all about green boxes against KPIs and the customer slowly accepting the service is a bit shit (but hey, its cheaper right, and the PHB gets his bonus). With age comes experience, and experience doesn't come cheap.
Isn't there a saying along the lines of "Yes the job is expensive - its a dollar for the hammer and 200 dollars for knowing what to hit it with"
workers that had already exhausted their avenues for redress through third-party arbitration.
What? Surely the courts are the final and ultimate third party arbitration service? Why should they be excluded because they tried for an amicable arbitration instead of immediately reaching for their lawyers? Or is this a punishment for not enriching the lawyers and legal system?