March 29, 2019

In a lawsuit filed by four former employees, IBM is again accused of age discrimination for firing older employees and refreshing its workforce with “early professionals.”

The employees are suing in federal court under the Older Workers Benefit Protection Act (OWBPA) of 1990, which Congress enacted as an amendment to the Age Discrimination in Employment Act (ADEA) of 1967 to prevent companies from doing exactly what IBM is accused of. The lawsuit says that, in 2014, IBM set a plan in motion (as its current CFO and VP of Human Resources allegedly put it) to “correct [its] seniority mix.”

IBM is also accused of ending a practice where, during layoffs, the company provides comparator information to employees detailing job titles, ages, and number of employees selected for termination. During the layoffs affecting the plaintiffs in the most current lawsuit, IBM allegedly altered waiver language so laid-off employees would be prevented from collectively suing under the ADEA. From the lawsuit:

IBM’s waiver specifically prohibited workers from pursuing their claims collectively, even in arbitration. IBM sought to deprive its workers of the essential economies and advantages from pursing their ADEA claims together and instead to burden them with the limitations and costs of bringing individual actions challenging the same discriminatory practices in secret arbitrations separate from each other.

. . .

To provide cover for its targeted layoffs, the lawsuit also alleges IBM manipulated its performance review process, actually ordering managers to give older tech pros lower ratings, and instituting a bogus score for employees based on their review. A ProPublica report tells the story of Cheryl Witmer, who was with IBM from 1984 to 2016. After an unexpected bad performance review that year, she was told she was retiring. After correcting her manager that she was indeed not retiring, her manager said, “Yes, you are.”

Speaking to Yahoo News, Joseph Sellers of Cohen Milstein Sellers & Toll, one of two firms representing the plaintiffs, said he has “not seen before an effort like IBM’s to allegedly make an end-run around the OWBPA, and this lawsuit is challenging this unlawful tactic,” adding: “IBM is relying on unlawful and unjustified stereotypes to remove older workers who have decades of tech experience, and this suit is also challenging that.”

The full article can be accessed here.