Jury Awards $1.

5M+ Against IBM in Age Discrimination Case

After Faulty Internal Investigation Precluded from Evidence
A federal jury in Connecticut returned a unanimous verdict awarding a
total of $1,499,891.70 to a man terminated by IBM when he was 61 years
old. The jury also found that IBM knew or showed reckless disregard for
whether its termination of [the employee] constituted age
discrimination. As such, the employee may also be entitled to liquidated
damages, which is double back pay, and would add another $999,891.70
to the total award.
According to the pleadings in the case, when the 61-year-old employee
learned he was going to be terminated he complained to IBM
management that he was being discriminated against because of his age.
An IBM human resources manager then conducted an investigation into
that complaint and found that the employee was treated fairly and not
discriminated against.
In the weeks leading up to the start of the jury trial, the employees
attorney filed a motion to preclude the introduction of the internal HR
investigation at trial arguing that the probative value of the internal
investigation was far outweighed by its prejudicial effect and that its
introduction to the jury will result in confusion and delay. IBM opposed the
motion arguing, in relevant part, that the investigation was clearly
relevant to IBMs motive, admissible as a business record, and that IBM
needed the investigation to be able to defend itself against allegations
that its actions were willful.
In a key legal boost to the employees case, the federal judge granted the
motion to preclude. The judge was particularly troubled by what he
viewed as an investigation that while purporting to make objective
findings failed to consider evidence that would have been favorable to
the employee. Indeed, the judge noted that he suspected that the
purpose of the investigation was more to exonerate IBM than to determine
if [the employee] was treated fairly.

Connecticut plaintiffs attorney Nina Pirrotti was not surprised by the

judges ruling and is not surprised by the jury verdict. Indeed, she
commented that even if the judge had declined to grant the motion to
preclude, the plaintiffs employment lawyer could have made hay over
IBMs non-investigation which was clearly orchestrated to justify IBMs
unlawful termination decision. In fact, she noted that if a jury
concludes that the employer conducted a true sham investigation, such a
finding may be the tipping point in its decision to award punitive (or in this
case liquidated) damages.
50 Is the New 65: Older Americans Are Getting Booted from Their Jobs and Denied
New Opportunities
In every corner of America, millions of people are terrified of losing their jobs and falling into
financial ruin. Men and women with impressive professional achievements and credentials
are being let go, nudged out and pushed aside. They are pounding the pavement and
scouring the job sites, but find themselves turned away even for the most basic retail jobs.
Not because they arent competent. Not because they lack skills. But simply because they
have a gray hair or two.
This is not just a story of people in their 60s or 70s. Workers as young as 50 are shocked to
find themselves suddenly tossed onto the employment rubbish heap, just when they felt on
top of their game. Theyre feeling stressed, angry and betrayed by a society that has
benefited greatly from their contributions.
As the global population grows older, age discrimination is on the rise. It could be headed for
you, much sooner than you think.
I Got Thrown Away
Jan, a marketing executive from Southern California, is just 51, and she has already learned
the heartbreak and frustration of age-related job insecurity.
She was flying high as the head of marketing for a large financial planning firm when she
was laid off in 2009 at the age of 47. The recession had done its damage, and her firm had
to let some people go mostly the youngest and oldest employees. Jan understood why
the layoff happened, as sad as it was. Her firm gave her great recommendations and kept
her on as a consultant for a year.
But she was not prepared for what happened when she tried to find another job.
First Jan applied for positions similar to her previous employment at banks and other
financial institutions. Nothing. Keeping upbeat, she widened the net, applying for all
marketing and communications jobs advertised in a 40-mile radius of her home. Still nada.
Finally, she started applying for retail jobs and was shocked to find that she could not even
land these. Jan got an interview at Barnes & Noble, but the store didnt call her back, and
she wondered if all the young people on the floor had something to do with it. She tried a

local bridal shop, thinking that she was the same age as the mothers of the brides and would
be a good fit. They didnt hire her. Even Target turned her down for a job as a store clerk. No
reason was given. Thats when she started to panic.
Its been difficult on my family, Jan says. My husband was a lawyer, but he has become
disabled. My daughter felt embarrassed that I couldnt find a job, and Ive had to explain to
her why she shouldnt be. I had to explain to her that I was not ashamed, that I was mad. I
had done everything I was supposed to do. I had gone to college, then to grad school. I
worked very hard and I had a lot of success. Then I got thrown away.
In researching this article, I heard many stories like Jans, from Americans from all walks of
life. A commercial fisherman with 30 years experience from Tucson, Arizona has sent out
dozens of applications, but gets zero bites. An Ohio IT professional with over 30 years
experience was let go after 15 years at his company, and now finds himself working in a
bottom-tier customer service position with 20-year-olds.
These are downwardly mobile Americans whose dreams of stability after decades of a job
well done and a comfortable retirement are vanishing before their eyes.
Bigotry That Knows No Boundaries
Age discrimination can stalk you whether youre black or white, poor or well off, male or
female, gay or straight. Its something were all likely to face if we stick around long enough.
In the job market, it impacts our very survival and our sense of ourselves in the world.
New research shows that age discrimination may be even more common than we thought
and more prevalent than other forms of bias, like ethnic discrimination. According to a study
published in the Journal of Age and Ageing, one third of British people in their 50s and above
reported age discrimination, a figure that surprised researchers. From poorer service in
restaurants to ill treatment in hospitals to outright harassment, people found themselves
increasingly disrespected as they aged.
Lead researcher Isla Rippon of University College London told Reuters that such day-to-day
experiences impact physical and mental health: Frequent perceived discrimination may be
a chronic source of stress and build up over time, leading to social withdrawal and
reluctance to go to the doctor.
When it comes to financial stress, older Americans say that job insecurity is their numberone concern, according to a recent survey. Many people over 50 find themselves hanging
on to their jobs for dear life, aware that they are perceived as obsolete and not as valuable
as younger workers, despite their vast experience and institutional knowledge. According to
a 2013 AARP survey report, "more than one-third of older workers are not confident that
they would find another job right away without having to take a pay cut or move (37%). Of
those, about one in five (19%) say the reason they are not confident is due to age
discrimination and 21 percent identify age limitations, such as feeling they are 'too old' or
limited in some way because of their age."
Ashton Applewhite blogs about aging and ageism at ThisChairRocks.com. She has much to
say about the myths concerning older workers that permeate our culture: that people over 50
are rigid, trapped in their jobs, take too many sick days, or cant cope with technology. The

most common myth is that older workers are all the same. Applewhite's research shows that
nothing could be further from the truth.
The hallmark of later life is heterogeneity, explains Applewhite. Think about it. We become
less alike with every day that passes. A group of 20-year-olds is much more alike than a
group of 60-year-olds. People age at different rates. The stereotypes dont fit. Some older
people are wise, some arent. Geriatricians have a saying: If youve seen one 80-year-old,
youve seen one80-year-old. You cant neatly categorize older people.
It is true that younger workers can go faster, concedes Applewhite. Older workers go more
slowly, but theyre more accurate. Age confers patience and coping skills, the ability to
handle stress.
According to Applewhite, the perception that older workers cant handle physically
demanding tasks is often outdated. She points out that chronological age is generally not an
indicator of capacity, even for pilots or firefighters. Older, experienced workers actually hurt
themselves less on the job.
The idea that after a certain age you cant do demanding tasks is just a myth, says
Applewhite, noting that even during slavery, the market price for slaves remained high well
into their 70s, because slave owners knew they could do valuable work.
The stereotype that older workers cant adjust to technology is similarly overstated, she
says, noting that they are usually more than capable of learning new technical skills,
particularly if those skills have relevance to their work experience.
Applewhites research shows that the most productive and effective teams in the workplace
are mixed-age groups. Experience plus freshness just makes sense, she says. A team
with different generational perspectives has new energy, new possibilities for collaboration.
People think older people are trapped in their jobs, says Applewhite. But in reality, most
older workers work because they enjoy their jobs. Shouldnt people have the choice the
right to continue to work if they want to? Nobody wants to be economically dependent. The
trouble comes when older workers are shunted aside or cant find decent jobs, and then face
a shredded social safety net. They become dependent, and that dependency just reinforces
the myth that they are a burden. Who would want to be a burden by choice?
Older workers are damned if they do and damned if they dont. If they do manage to stay
employed, they are accused of taking jobs away from younger people. Yet according to
a recent Pew report, thats just another myth.
The idea that younger and older workers are engaged in a zero-sum game for a fixed
number of jobs is called the lump-of-labor theory. According the Pew report, this theory did
not hold true in the Great Recession. On the contrary, a one-percentage point increase in
Baby Boomer employment had an insignificant impact on youth employment rates,
unemployment rates, or hours worked. An increase in the Boomer employment rate actually
correlated to a 0.28 percent increase in youths hourly wage rate.
Far from taking jobs away from younger people, the employment of older workers seems to
benefit them.

Age Discrimination Is Costly

There was a time when American workers and their employers had fair contracts. The longer
you worked for a company, the more you were paid, and when you retired you could expect
a pension. The Age Discrimination in Employment Act of 1967 made it unlawful for
employers to discriminate against workers and certain job applicants 40 and over based on
age.
Things started to change in the 1980s, when trends like deregulation, outsourcing and unionbusting started to give employers more power to do with workers as they pleased. Business
schools began to preach the misguided gospel of shareholder value maximization, which
held that instead of investing in the skills and training of employees, companies should
pursue layoffs and cost-cutting in the interest of short-term profits moves that perversely
tend to negatively impact the long-term health of the firm.
It turns out that unbridled capitalism has a bias against older workers. Bosses started to
focus more on younger workers because they are cheaper and didnt expect things like
pensions. They could also be more easily intimidated.
By 1993, a Supreme Court decision involving a 62-year-old employee discharged from
Hazen Paper Company just weeks before he qualified for full pension benefits gave
employers the right to look at factors associated with employee age, like the length of
service with the company, in deciding whether or not to fire workers without fear of violating
the law. Older workers were now much easier targets for employers.
Millions of dollars are being spent by companies in lawsuits. Meanwhile, businesses lose
valuable assets they havent properly assessed. According to an overly simplistic model of
economics, the economy is supposed to be self-regulating and people are supposed to be
paid precisely according to their worth, or what economists call their marginal productivity.
The problem is, its extremely difficult to tell what a workers marginal productivity actually is.
Many workers perform in teams. An older, experienced workers presence may have the
effect of upping the game of the younger workers, but this is difficult to measure. In a
newsroom, for example, an experienced journalist may bring credibility and reputation to the
product, and impart valuable knowledge to newbies, who strive harder when she oversees
their work. What happens when you pull out the older worker? The short-term bottom line is
cut, but the team suffers and the long-term value of the company may be decreased.
Jan, the erstwhile marketing manager, thinks the U.S. is particularly obtuse when it comes to
dealing with older workers. She points to Germanys actions in the wake of the financial
crisis: The government went and created incentives for industry not to lay people off but to
cut hours. Here in America, that didnt happen.
Jan and other older workers feel a deep sense of having been contributed to an economy
and society that has kicked them to the curb.
We work hard for years, and how do we benefit in the end? American companies dont give
back to the taxpayers and workers who have made their success possible. We should
expect some reciprocity. We should reward companies that dont outsource. We should
improve the social safety net to help people who are unemployed through no fault of their
own. There are things that I could be doing to further benefit the community, but if nobody

wants to hire me, I dont see where thats ultimately my fault. Especially when the economy
is producing enough for all if it were distributed fairly.
We live in an era of planned obsolescence, in which designers deliberately make a thing
limited in its useful life. Now this planned obsolescence includes human beings. Is it really an
efficient use of our human capital to turn experienced workers into Walmart greeters?
Clearly, we need workplace policies and programs that expand the opportunities for older
Americans to extend their labor force participation and continue to contribute their valuable
skills and experience. Phased retirement plans in which older workers are kept on as parttime workers or consultants, for example, can benefit both employers and employees. Such
plans mitigate the potential loss of knowledge as older workers retire.
The biggest-picture problem in the economy that needs to be addressed has to do with what
economists call aggregate demand the overall demand for goods and services. When
people dont have enough money in their pockets, which happens when economic shocks
occur and the government pursues austerity policies, businesses stop hiring and people
cant find jobs or keep the ones they have.
This results in involuntary unemployment; its like a game of musical chairs in which the
music stops and somebody is going to be left without a place to sit. Unless the government
invests in the economy through jobs programs, education, infrastructure-building, and so on,
aggregate demand remains low and unemployment persists, which particuarlly impacts the
youngest and the oldest workers. When the GOP and many centrist Democrats pursue the
self-defeating policies of cutting the social safety net with calls to raise the eligibility age to
collect Social Security or kicking people off unemployment, the problem is only worsened.
Telling people to accept lower paying jobs may make sense for individuals, but in the
economy as a whole, as Keynesian economists constantly remind us, wage cuts just add to
the shortfall in demand.
In the end, we want an economy that allows everyone to work who is able to do so, and
provides a robust social safety net for those who can't. Our current system is unsustainable,
and age discrimination, which strikes even those who are still in their prime, is quickly
becoming an economic, social and public health disaster for the 21st century.