RESEARCH TRIANGLE PARK – Tech giant IBM discriminated against older workers when making thousands of layoffs between 2013 and 2018, according to a letter sent to IBM by the US Equal Employment Opportunity Commission.

“Analysis shows it was primarily older workers (85.85%) in the total potential pool of those considered for layoff,” the EEOC wrote.

“Evidence uncovered older employees who were laid off and told that their skills were out of date, only to be brought back as contract workers, at a lower rate of pay with fewer benefits. EEOC received corroborating testimony from dozens of witnesses nationwide supporting a discriminatory animus based on age.”

Judy Keenan, Director, New York District Office, wrote the letter.

She pointed out that the “decision is final.”

Several IBM workers complained to the EEOC and also sued in 2018.

“The Commission’s investigation reveals that Respondent conducted Resource Actions analyzed by the EEOC between 2013 and 2018 that had an adverse impact on employees in the protected age group (PAG),” she noted.

“The investigation uncovered top-down messaging from Respondent’s highest ranks directing managers to engage in an aggressive approach to significantly reduce the headcount of older workers to make room for Early Professional Hires.”

Ex-employees sue IBM for age discrimination; Big Blue says layoff process is ‘legal’

IBM laid off an unknown number of workers in North Carolina during that time as it slashed the size of the state-wide workforce, including at its large campus in RTP.

The EEOC’s decision came after hearing complaints from “charging parties” who alleged “they and a class of similarly situated individuals were discharged based on their age. Individual Charging Parties also alleged discrimination based on national origin, sex, race, retaliation, and disability.”

IBM denied the allegations, Keenan wrote.

“Respondent contends there was no centralized decision-making, and that each individual manager was responsible for selecting individuals in his or her group that would be laid off,” she said. “Respondent offered various reasons for selection for layoff including performance, relevant skills, utilization, and consolidation of services.”

‘IBM cannot escape discrimination laws,’ says attorney in age bias suit

However, Keenan said the EEOC concluded that “Respondent’s asserted defense does not withstand scrutiny and the Commission has determined that there is reasonable cause to believe that Respondent has discriminated against Charging Parties and others on account of their age.”

In a statement to ProPublica, which first reported about the letter, IBM stood by its defense.

IBM communications Vice President Edward Barbini sated: “IBM makes decisions based on the needs of its business units, not age. We will continue to defend this matter vigorously.”

Next steps

Keenan said the EEOC expects IBM and the “Charging Parties” to now negotiate a resolution.

“Having determined that there is reason to believe that violations have occurred, the Commission now invites Respondent to join with it in an effort toward a just resolution of this matter,” she said.

“A commission representative will contact each party in the near future to begin conciliation. If you decline to enter into conciliation discussions, or when the Commission’s representative is unable to secure an acceptable conciliation agreement, the Director shall so inform  the parties,advising them of the court enforcement alternatives available to aggrieved persons and theCommission.”

Letter text

The text of the letter follows:

“On behalf of the U.S. Equal Employment Opportunity Commission (“Commission”), I issue the following determination on the merits of the subject charge filed under the Age Discrimination in Employment Act (ADEA) of 1967, as amended, Respondent IBM is an employer within the meaning of the ADEA. All requirements for coverage have been met.

“Charging Parties allege they and a class of similarly situated individuals were discharged based on their age. Individual Charging Parties also alleged discrimination based on national origin, sex, race, retaliation, and disability.

“Respondent denies discriminating against Charging Parties. Respondent asserts that Charging Parties were discharged as part of a series of Resource Actions designed to reduce headcounts and decrease costs. Respondent contends there was no centralized decision-making, and that each individual manager was responsible for selecting individuals in his or her group that would be laid off. Respondent offered various reasons for selection for layoff including performance, relevant skills, utilization, and consolidation of services.

“The Commission’s investigation reveals that Respondent conducted Resource Actions analyzed by the EEOC between 2013 and 2018 that had an adverse impact on employees in the protected age group (PAG). The investigation uncovered top-down messaging from Respondent’s highest ranks directing managers to engage in an aggressive approach to significantly reduce the headcount of older workers to make room for Early Professional Hires.

“Analysis shows it was primarily older workers (85.85%) in the total potential pool of those considered for layoff. Evidence uncovered older employees who were laid off and told that their skills were out of date, only to be brought back as contract workers, at a lower rate of pay with fewer benefits. EEOC received corroborating testimony from dozens of witnesses nationwide supporting a discriminatory animus based on age. See above for a list of Charge Numbers covered by this Determination.

“Based on the above, Respondent’s asserted defense does not withstand scrutiny and the Commission has determined that there is reasonable cause to believe that Respondent has discriminated against Charging Parties and others on account of their age.

“Based on the above, the evidence obtained during the investigation was insufficient to establish a violation of Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Americans with Disabilities Act of 1990, as amended, based on national origin, sex, race, retaliation, and disability.

“This determination is final. The ADEA requires that, if the Commission determines that there is reasonable cause to believe that violations have occurred, it shall endeavor to eliminate the alleged unlawful employment practices by informal methods of conference, conciliation, and persuasion.

“Having determined that there is reason to believe that violations have occurred, the Commission now invites Respondent to join with it in an effort toward a just resolution of this matter.

“Disclosure of information obtained by the Commission during the conciliation process may only be made in accordance with the ADEA and the Commission’s Procedural Regulations.

“A commission representative will contact each party in the near future to begin conciliation. If you decline to enter into conciliation discussions, or when the Commission’s representative is unable to secure an acceptable conciliation agreement, the Director shall so inform  the parties,advising them of the court enforcement alternatives available to aggrieved persons and the Commission.”

The letter also is available online.