Baby Boomers fighting IBM over alleged age discrimination

The Baby Boomer generation fought the old guard when it came of age. Now, many in that generation are fighting again, from the other side, against age discrimination.

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Three former IBM employees are suing the tech company alleging age discrimination; that IBM systematically fired employees over the age of 40 based on their age. The case raises a few questions as tech companies continue to boom — especially in Seattle — adding new people to the workforce everyday.

Former Washington State Attorney General Rob McKenna says that in this case, the burden of proof may fall on IBM.

“You can prove age discrimination, at least alleged, and shift the burden to the employer with one person who believes she was discriminated against on the basis of age,” McKenna told KIRO Radio’s Dave Ross. “What that one employee would need to show is that she is 40 years of age, or older; that her employer took an adverse employment action against her i.e. terminated her; that she was qualified for the position; and was ultimately replaced by another employee significantly younger. That supports an inference of discrimination.”

“Then the burden of proof shifts to the employer who has to articulate a legitimate, non-discriminatory reason for the employment action,” he said. “So even one person can bring the claim.”

ProPublica reports that IBM eliminated more than 20,000 American employees who were 40 years and older over the past five years. That’s about 60 percent of its total job cuts in the US over that time. There was also a company memo that was discovered which referred to the Baby Boomer generation as “gray hairs,” and “old heads.” It said that younger generations are more innovative and open to new technology than Baby Boomers.

“There is an exception under the age discrimination and employment act, where you can terminate someone over a certain age if there is a bonafide occupational qualification they lack,” McKenna said. “In the IBM case, that is their rationale.”

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IBM argues that cuts are about skills, not age.

“Wait a minute, if you define skills in a way that has a disparate impact on older people, does that violate this federal law,” McKenna said. “More than that, is it just fundamentally unfair?”

“It’s been recognized for a long time that we shouldn’t discriminate against anybody based on immutable characteristics – race, age, gender, sexual orientation, etc.” he said. “It think it’s important because there can be implicit, bias against people based on their age, just as there can be based on race, for example.”

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