Age Discrimination and AI Might Not Mix…

Your company decides it needs to conduct layoffs. It actually phases them in over several months, maybe even a year or two. Then the axe drops. Then come the lawsuits.

It seems that all or just about all the employees let go were over a certain age. Can’t you decide to let employees go without issue, even though they happen to be over a certain age? Sure, depending on how you decided who to let go and who to retain. But this is a very nuanced topic, especially depending on who — and in some cases what– you decide to replace those employees with. Read on and I’ll explain…


Yes, as always, I have a real-life case example in mind — and yes, the picture above is a giveaway. The case is Wimbash and Oken v IBM.

Yes, you read that right. IBM now faces another in a series of age discrimination lawsuits — and that may not even be its biggest problem. Here, in a nutshell, is what went down:

On September 20, 2023, 2 former HR professionals, ages 62 and 66, who had worked for IBM for more than 20 years, sued IBM, alleging that they were fired because of their ages, as part of a plan to lay off more than 50% of its HR employees.

While IBM actually conducted the layoffs in the spring, it allegedly announced them internally in or about January, including in the cuts “some of the Company’s oldest and most senior employees”.

Younger employees with lower performance ratings compared to those of the terminated employees were allegedly retained, with the terminated employees’ responsibilities being assumed by younger employees in newly created positions.

Another age discrimination lawsuit filed against IBM last year alleges communications between senior IBM executives including discriminatory language in reference to and explicit plans to terminate older workers. These are only the two most recent age discrimination lawsuits in a series over the last several years.

But there’s more: these layoffs were allegedly in process for 2 years, starting with the diversion of HR functions to call centers then intro of chatbots and AI tools, after which IBM allegedly “ramped up efforts to reduce the number of real humans” handling HR functions.

This to me is the even bigger problem. HR/Employment Law issues are very nuanced. Properly handling them turns on specific circumstances and cannot be handled without human interaction.

Aside from an implicit set-it-and-forget-it mentality, which does not work here, it appears that IBM does not truly understand the value of HR. It fails to understand how to properly utilize HR.

Does anyone think this will be IBM’s last employment-related lawsuit? Will it use AI to defend this one and subsequent ones? We’ve already heard stories about the perils of using ChatGpt to write legal briefs and employee handbooks.

A company needs HR (at least its HR Directors and/or Managers and/or VPs) on its leadership team to be effective. It needs to bridge the gap between HR and leadership and between HR and everyone else. Without that, an employer/business cannot complain when HR then cannot be effective in protecting and adding value to the company.

Let’s mull that over for a bit.

Are you an employer interested in proactively addressing workplace challenges and company culture? Visit my website, to contact me for a complimentary 20-minute consultation. 

Watch my television interview on Good Morning HR with Mike Coffey on Mental Health and the ADA.

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ



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