and give the EEOC an undeserved forum to spout righteous indignation.
ProPublica and Mother Jones recently resurrected a story about wholesale age discrimination at IBM, presenting it as a new, hard-hitting investigative report.
In fact, the core issues in the “investigation” have been known since at least 2014, when Bloomberg reported that IBM had devised a strategy to skirt federal laws designed to disclose the presence of arbitrary age discrimination in firings and lay-offs.
“A ProPublica investigation found that in making the cuts, IBM has flouted or outflanked U.S. laws and regulations intended to protect later-career workers from age discrimination.” – ProPublica
Does a Google search qualify as an investigation?
Bloomberg reported in 2014 that IBM was no longer providing workers over the age of 40 with the ages and job titles of other older workers who were dismissed in a group layoff. Bloomberg said IBM avoided the legal disclosure requirement of the Older Workers Benefit Protection Act by removing a clause in their severance agreement that waived age discrimination claims. Instead, IBM devised a new severance agreement that gave workers the option of bringing a future age discrimination claim to arbitration rather than to court. At the time, Bloomberg noted the new IBM policy deprived workers of critical information to assess whether they were victims of age discrimination and that arbitration is a notoriously pro-employer forum.
In Bloomberg’s 2014 report, Old, Fired at IBM: Trendsetter Offers Workers Arbitration, Bloomberg predicted that other employers would follow IBM’s example and adopt similar arbitration clauses designed to defeat age discrimination claims.
Why does it matter that ProPublica and Mother Jones recast old news as a fresh investigative report? It matters because the EEOC and the U.S. Congress have known since 2014 that IBM was implementing a new strategy to avoid accountability for age discrimination. They did nothing in response.
On notice since 2014, the EEOC and Congress did nothing to ensure IBM complied with federal age discrimination laws.
It is nothing short of galling that ProPublica/Mother Jones provide the EEOC with a forum – unchallenged – to spout righteous indication about age discrimination:
“Age discrimination is an open secret like sexual harassment was until recently,” said Victoria Lipnic, the acting chair of the Equal Employment Opportunity Commission, or EEOC, the independent federal agency that administers the nation’s workplace anti-discrimination laws. “Everybody knows it’s happening, but often these cases are difficult to prove” because courts have weakened the law, Lipnic said. “The fact remains it’s an unfair and illegal way to treat people that can be economically devastating.”
Did ProPublica/MotherJones ask why the EEOC did not go after IBM in 2014 when Bloomberg first disclosed the new severance agreement? Apparently not. Other questions that come to mind that apparently were not asked:
- Why has the EEOC, which is called an independent agency, virtually ignored epidemic age discrimination for a decade?
- How does the EEOC explain why it filed only two lawsuits with age discrimination claims in 2016, not to mention why the EEOC itself discriminates on the basis of age?
- Why has the EEOC been silent since 2010 about the federal Pathways Recent Graduates Program, which has denied older workers access to more than 100,000 federal jobs (and counting).
Lastly, why does the U.S. Congress fail year after year to pass the Protecting Older Workers Against Discrimination Act, a proposed federal law that would fix a particularly disastrous 2009 U.S. Supreme Court decision that has left older workers almost powerless to fight big companies like IBM?
The ProPublica/Mother Jones “investigation” also reports on the eroding protection of the Age Discrimination in Employment Act of 1967, without acknowledging my groundbreaking 2014 book, Betrayed: the Legalization of Age Discrimination in Employment. Don’t get me started on that …