Once again, IBM has been sued for age discrimination, this time alongside spin-off Kyndryl, for allegedly cutting the jobs of older workers while creating similar positions for younger ones.

The complaint [PDF] was filed on Tuesday in New York City, on behalf of five veteran executives and employees who collectively served the two corporations for more than 150 years.

The IBM plaintiffs include: Michael Nolan, former Director of Strategy and Planning for IBM's Software Unit; Karla Bousquet, former VP, CEO of Events at IBM, Karla; Jay Zeltzer, former Business Automation Leader; and Teresa Cook, former VP of Client Experience. Randall Blanchard, former Services Account manager, is suing Kyndryl, having previously been with Big Blue.

Despite IBM chief global HR officer Nickel LaMoreaux's 2022 rejection of what she characterized as "false claims of systemic age discrimination," the lawsuit argues the mainframe titan is still targeting older workers.

The legal filing cites a 2021 case, Townsley v. Int’l Bus. Machines Corp, in which executive Sam Ladah, who is accused of attempting "to keep ageist IBM executive level planning documents confidential," said those documents from five to six years earlier were still being used for hiring decisions.

To further support the claim that the targeting of older workers continues to this day, the complaint says, "A recently leaked video of [CEO Arvind] Krishna confirms that IBM has continued its practice of using secretive top-down pressure to gerrymander its workforce to reflect the demographic preferences of its executives."

The 2023 video, published by conservative political activist James O'Keefe, appears to show Krishna tying manager bonuses to diversity targets in a context where such targets are alleged to be discriminatory. Basically, IBM has been accused of threatening to withhold bonuses from bosses if they don't hire a diverse enough range of techies - more Hispanic and Black people - leading to qualified candidates - Asian people and others - being ignored on the basis of their race.

The latest lawsuit also points to Wimbish v. IBM, an age discrimination complaint filed in September by two human resources managers.

"In their complaint, these fired HR managers alleged that IBM’s HR still constantly consider an employee's 'runway' when determining if that worker would be terminated," the complaint says. "'Runway' is coded language for how long IBM HR expects an employee to remain at IBM before they retire, a direct proxy for age."

Consistent with the assertion that discriminatory practices are ongoing, IBM's Red Hat was sued as recently as May for racial discrimination.

That same month, Kyndryl was accused by multiple employees in the corporation's CISO Defense security group of discrimination on the basis of age, race, and disability, via internal complaints and formal charges filed with the US Equal Employment Opportunity Commission (EEOC).

And that's to say nothing of related claims over the past few years, including Lohnn v. IBM, Langley v. IBM, Schenfeld v. IBM, Iacano v. IBM [PDF], Keebaugh v. IBM [PDF], and VanDeWeghe vs. IBM [PDF], Kingston v. IBM, Wagner v. IBM [PDF], Rusis v. IBM, or Doheny v. Kyndryl.

The complaint against IBM and Kyndryl revisits the now widely known history of recent age discrimination claims against Big Blue and its former Global Technology Services Group, which became a separate company - Kyndryl - in 2021.

The lawsuit describes the 2020 US Equal Employment Opportunity Commission (EEOC) determination [PDF] that "there is reasonable cause to believe that [IBM] has discriminated against [employees] on the basis of age." And it highlights reporting to that effect from ProPublica, as well as more recent revelations about IBM executives dismissing older workers as "dinobabies."

According to the complaint, IBM's scheme to de-age its workforce worked.

"A cadre of top executives developed and implemented the plan while the Human Resources and Finance weaponized artificial intelligence and scoring algorithms against IBM’s older workers," the complaint says. "Finance made the math work, providing the business case for mass exits of older employees.

"The company employed the use of biased predictive analytics to target older populations for lay-offs. Cognizant that its efforts to 'revitalize' its workforce violated anti age-discrimination laws, IBM Legal devoted significant time and resources to devising tactics and procedures to avoid detection."

It's alleged that IBM used coded language to obscure what was going on, citing corporate planning documents from prior litigation that include terms like "Early Professional Hire," "seniority mix," "skills remix," "next generation," "refresh," "revitalization hiring," "reinvention of the workforce," and "transformation" to conceal discussions of allegedly illegal activities.

And the lawsuit describes how executive-mandated company wide layoffs, referred to as "Resource Actions," were formulated to disproportionately target older workers.

Older workers, it's claimed, were given impossible performance goals to create baseless negative performance reviews as a pretext to get rid of them.

Termination

"There exists evidence that the HR department and executives several levels up from an employee’s front-line manager placed employees on secret internal Resource Action 'RA' lists that marked them for termination before first-line managers even knew that their subordinate had been pre-selected for termination," the lawsuit says.

"IBM would then use first-line managers as cat's paws for the discriminatory termination pre-approved by HR. HR would then obfuscate this termination decision to make it seem like it was actually the first-line manager’s decision to terminate that employee."

What's more, it's alleged IBM tried to hide it was replacing older workers with younger ones.

"While simultaneously firing its older workers - IBM was busy hiring young employees, en masse to replace the older workers that were laid off," the complaint contends. "To hide the replacement, IBM would frequently create different job titles and shift organizational structures to make it harder to detect that they had not eliminated a position, but instead merely replaced older workers with younger workers."

Referencing The Register's reporting on the subject, the complaint observes that though Kyndryl split from IBM, the spin-off inherited the mainframe maker's processes and procedures.

The lawsuit accuses IBM and Kyndryl of age discrimination under the federal Age Discrimination in Employment Act (ADEA), retaliation under the Title VII of the Civil Rights Act, and various state employment law violations.

Neither IBM nor Kyndryl responded to requests for comment. ®

https://www.theregister.com//2024/06/20/ibm_and_kyndryl_again_sued/