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Age discrimination case against IBM leaks emails, docs via bad redaction

Documents detail exec worried that failure to transfer some laid-off workers 'will blow a hole in our rhetoric'

An IBM age discrimination lawsuit filed in Texas last year has become a bit less opaque after The Register found an inadequately redacted court document that discusses plans to present evidence obtained from company emails and documents.

The case involves 16 former Big Blue employees who claim "IBM’s highest executives created and attempted to conceal a multi-faceted 'fire-and-hire' scheme with the ultimate goal of making IBM’s workforce younger."

Since the publication of a 2018 report by ProPublica and Mother Jones alleging systematic efforts within IBM to get rid of older employees and findings to that effect by the United States' Equal Employment Opportunity Commission (EEOC), there have been multiple lawsuits against IBM claiming that the IT titan engaged in a pattern of discriminatory behavior.

There's a case underway in New York involving several former IBM employees. Last April, another case in Texas involving plaintiff Jonathan Langley was unexpectedly dismissed – and presumably settled.

The current Texas claim, Kinney et al v. International Business Machines Corporation, is being handled by some of the same attorneys in the Langley case and The Register understands that some previously unearthed executive communications could play a role in the latest litigation.

The Kinney case faces two legal obstacles. The first involves convincing the judge that employees' arbitration agreements with IBM were the result of fraud and thus should not prevent them from suing in court.

The second involves convincing the judge that the plaintiffs should be able to sue in Texas rather than in the places where they worked, an argument the judge rejected in a previous ruling that the plaintiffs' legal team is trying to reverse.

Someone's an April fool

An April court filing, a reply to IBM's partial motion to dismiss the case because some plaintiffs don't reside in Texas, provides the court with "a snapshot of IBM documents that support a denial of IBM’s jurisdictional challenge."

The filing is supposed to be redacted, with black bars through various sensitive passages in the text. But the redaction, typically done with a redaction tool in an application like Adobe Acrobat Pro, didn't take. The underlying text can be viewed by copying the obscured passage and pasting the results into a word-processing application.

The plaintiffs' attorneys present the judge with a preview of their evidence against Big Blue. Take the passage below, for example, which seeks to illustrate that Texas is an appropriate venue for the case by claiming that IBM's hiring strategy focused on locations where younger workers might be hired more easily. It quotes internal IBM documents that will be used in evidence and were supposed to be redacted for now.

We've replaced the document's intended redactions with strikethrough text.

One of the stated rationales of IBM’s entire location strategy initiative is explicitly to cater to Early Professional Hires and Millennial preferences. The same documents reflect an overall company strategy for the Early Professional Hire group. Such strategies specifically included analyzing high value locations, the objective of “[o]ptimizing the workforce for the long term by strategic hiring mix,” creating the correct “band structure mix” for Early Professionals, and the practice of “[using] models to inform other aspects of location strategy and targeted hiring of Early Professionals." Austin is one such location for IBM.

The court filing asserts that IBM executives deliberately orchestrated the simultaneous firing and hiring of several thousand employees at strategic locations to meet their specific goals. It continued, quoting internal email messages:

In one email chain, IBM executives discussed the bad optics of, on one hand, IBM laying off thousands of current employees, while on the other hand “saying we have 5000 [sic] open positions and plan to hire 25,000 more.”

In the same email chain, an IBM Vice President admits that neglecting to at least make an effort to transfer at least a few of the soon-to-be-laid-off IBM employees will “blow a hole in our rhetoric."

The filing further alleges that IBM's location-based hiring strategy is being driven by "approximately six 'senior level decision makers.'" It mentions another email chain that talks about using computer modeling to make "broad brush recommendations for remix/reskill" efforts, characterizing those terms as code for making business units younger overall.

And it cites IBM spreadsheet column headings that "can reasonably be expected to correlate with – or even serve as a dog whistle for – age: 'Band' level, 'Time_In_Band_Yrs,' 'Salary Band Date,' 'Tenure,' 'PBC_Date,' 'Tech Capability Gap,' and 'Tech Capability Expected Level.'"

The most recent filing in the Texas case comes from IBM, which argued about two weeks ago that there's no basis for the court to reverse its decision to transfer the case to jurisdictions appropriate for the plaintiffs.

IBM, still dealing with an email disruption that was supposed to be fixed by now, did not immediately respond to a request for comment. The company in the past has denied discriminating on the basis of age. ®

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