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Ageism is Alive and Well and Running Rampant

March 26, 2022

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

In a recent survey by the AARP, nearly 80% of older employees say they’ve seen or experienced age discrimination in the workplace. The percentage of jobseekers in February above the age of 55 who were “long-term unemployed,” meaning they’d been looking for a job for 27 weeks or more, was more than 36%, compared to around 23% among those between the ages of 16 and 54.

With a youth obsessed society, as employees age, they may be ignored or marginalized, thinking that they don’t have the skills that younger workers have.  These workers also wouldn’t likely be included in succession planning simply because the talent tree focuses on younger workers over a longer period of time.  This situation is fairly common, especially in the IT sector.

IBM is a prime example of alleged ageism.  Hundreds of former IBM employees have come forward alleging that IBM terminated them on the basis of their age.  These former employees allege that IBM laid them off as part of a deliberate company-wide strategy to hire younger employees to replace them.  Top executives referred these employees as “dinobabies” who should be made an “extinct species” at the company in emails. The lawsuit alleges that they were aware of a “companywide plan to oust older employees in order to make room for younger employees.”

The HR Leader for IBM disputed this claim.  IBM chief human resources officer Nickle LaMoreaux in response to questions stated that the median age of IBM’s employees was 48 as of 2020.   That number was the same as in 2010 and six years older than the median age of the overall U.S. workforce.  She added that 37% of all of IBM’s U.S. hires were workers older than 40 during the 10-year period.  Yet perception matters.  One IBM executive purportedly expressed “frustration that IBM’s proportion of millennials employees is much lower than at a competitor firm.” 

Further,  a 2018 ProPublica investigation found that IBM had laid off more than 20,000 U..S employees age 40 or older during a five-year period which accounted for about 60% of job cuts during that period.

To avoid class action lawsuits, IBM tried an approach they believed legal by not reporting ages of those laid off during these times using technical legal means. Under the Age Discrimination in Employment Act (“ADEA”), the law prohibits companies from requiring terminated workers to sign away their right to sue for age discrimination in exchange for severance pay, unless providing key age-related information about the layoffs.  A lawsuit was filed in 2019,  Estle, et al. v. IBM Corp., No 7:19-cv-02729 (S.D.N.Y.) that alleged that IBM subverted this scheme by requiring laid off workers to sign waivers of their rights to sue in court and to bring collective actions in arbitration, which would not require the disclosure of ages.   

IBM’s argument in support of this approach stated that since the agreement still gave the laid off employees a right to sue through individualized arbitration, IBM had no duty to disclose information on the role age played in the terminations.

Stereotypes persist in the workforce and need to be handled by HR through DEI efforts.  “The more we know about aging, the less fearful we become,” said Dr. Vânia de la Fuente-Núñez, manager of the global campaign to combat ageism at The World Health Organization. “Our anxieties are way out of proportion to the reality.” Unfortunately, this is a difficult picture to change as U.S. culture still celebrates youth.  

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