Sealed, confidential IBM files in age-discrimination case now public to all

Big Blue efforts to protect sensitive docs thwarted by mass of litigants


Confidential IBM documents presented in court as evidence to support claims Big Blue systematically shed older workers – documents subsequently placed under seal – have now publicly surfaced in one of the many ongoing age discrimination lawsuits against the IT giant.

The documents – slides and charts that describe corporate efforts to shift its headcount toward younger workers, referred to as early professional (EP) hires – made their courtroom debut in Langley v. IBM, an age discrimination claim filed in 2018 that settled two years later.

The Register got a glimpse of one of these documents in December 2018 after they had been submitted by Langley's legal team and before IBM managed to have the documents sealed.

IBM sought to unmask the individual who leaked the documents, an effort denied by the judge in that case. Big Blue declined to verify the authenticity of the documents when asked to do so.

Now these internal files have been entered as an exhibit [PDF] in Rusis et al. v. IBM [PDF], a class action brought by a group of nine former IBM employees who claim they were fired because of their age. That case initially involved more plaintiffs, but the judge disallowed some of the claims because the former IBMers had signed arbitration agreements.

The documents describe hiring goals, such as "Shift headcount mix towards greater % of Early Professional hires," and efforts to "fund an influx of EP's to correct seniority mix."

These goals can be seen in sentiment expressed in unsuccessfully redacted IBM documents and email messages, described in another age discrimination case, Kinney v. IBM. For example, one passage describes an IBM vice president admitting "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.'"

In 2018, ProPublica and Mother Jones published a report alleging IBM had been conducting a systematic campaign to get rid of older employees. The United States' Equal Employment Opportunity Commission (EEOC) looked into the matter and in 2020 concluded "there's reasonable cause to believe that [IBM] has discriminated against Charging Parties and others on account of their age."

IBM has consistently denied that it targeted workers for layoffs on the basis of age or other protected characteristics. Following the disclosure of previously sealed documents in Lohnn v. IBM that detail internal disparagement of older workers as "dinobabies" and the need to deal with the company's "dated maternal workforce," IBM's chief human resources officer Nickle LaMoreaux challenged what she described as "false claims of age discrimination at the company."

"Discrimination of any kind is entirely against our culture and who we are at IBM, and there was (and is) no systemic age discrimination at our company," she said in a public statement posted to the company's website.

IBM previously made this argument to the EEOC, but the EEOC dismissed it.

As attorney Shannon Liss-Riordan wrote in an opposition brief [PDF] filed in Rusis et. al. v. IBM earlier this month, "In conjunction with the EEOC investigation, IBM maintained that 'there was no centralized decision-making, and that each individual manager was responsible' for making the termination decisions based on considerations of 'performance, relevant skills, utilization, and consolidation of services.'"

The EEOC, Liss-Riordan argued, rejected this contention and said IBM's defense does not withstand scrutiny.

In a statement emailed to The Register, an IBM spokesperson said, "There was (and is) no policy or practice of age discrimination at IBM. The documents and data that we have produced make that clear."

IBM's spokesperson, citing figures included in LaMoreaux's post, said between 2010 and 2020:

  • 37 per cent of all US hires at IBM were over the age of 40;
  • IBM hired more than 10,000 people in the US over the age of 50 and 1,500 over the age of 60.

At the end of this period, in 2020:

  • A full 26 per cent of IBM's US workforce had been with the company for 20 years or more.
  • The median age of IBM's US workforce was 48 – precisely where it was in 2010 and six years older than the 2020 median age of all US workers.

We note that the EEOC determination covers the period between 2013 and 2018. Also, the age claims against IBM focus on the age of those fired or laid off. IBM stopped providing data on the ages of groups of laid-off employees in 2014.

There are currently hundreds of plaintiffs pursuing age-discrimination claims against IBM who dispute Big Blue's assertions.

One of the barriers facing these individuals is that the evidence obtained through the discovery process in one case isn't automatically available in other cases. It may be sealed and never come to light or the attorneys representing these plaintiffs may simply never learn about documents in other court proceedings that support their claims.

As internal documents emerge from cases like Langley v. IBM, Kinney v. IBM, and Lohnn v. IBM, that barrier looks lower. ®

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