U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION New York District Office 33 Whitehall Street, 5th Floor New York, NY 10004-2112 Intake Information Group: (800) 669-4000 Intake Information Group TTY: (800) 669-6820 New York Direct Dial: (929) 506-5270 FAX (212) 336-3625 Website: www.eeoc.gov DETERMINATION Respondent IBM Corporation c/o Alison B. Marshall, Esq. Partner Jones Day 51 Louisiana Ave. NW Washington, DC, 20001 Charging Parties’ EEOC Charge Numbers (Amended) 430-2019-00626 433-2018-02866 433-2018-03485 450-2018-06667 451-2017-00048 451-2018-04006 451-2019-00005 451-2019-00008 451-2019-00136 510-2016-03889 510-2017-02206 510-2019-00820 520-2016-02972 520-2016-02973 520-2016-02974 520-2016-02975 520-2016-02976 520-2016-02978 520-2016-02979 520-2016-02980 520-2016-02982 520-2016-02984 520-2016-02986 520-2016-02990 520-2016-02992 520-2016-02993 520-2016-02994 520-2016-02995 520-2016-03319 520-2016-03391 520-2016-03422 520-2016-03423 520-2017-00068 520-2017-00087 520-2017-00203 520-2017-00818 520-2017-00983 520-2017-01501 520-2018-04032 520-2018-04720 520-2019-01305 520-2019-02106 520-2019-02362 520-2019-02592 520-2020-03595 523-2016-00799 523-2018-01040 523-2018-01319 523-2018-01980 525-2018-01267 531-2016-02066 541-2015-01642 541-2018-02866 541-2018-03431 551-2017-01130 551-2018-01672 560-2016-01229 560-2016-01509 520-2016-03433 520-2017-01225 541-2016-01553 520-2016-03392 On behalf of the U.S. Equal Employment Opportunity Commission (“Commission”), I issue the following determination on the merits of the subject charge filed under the Age Discrimination in Employment Act (ADEA) of 1967, as amended, Respondent IBM is an employer within the meaning of the ADEA. All requirements for coverage have been met. Charging Parties allege they and a class of similarly situated individuals were discharged based on their age. Individual Charging Parties also alleged discrimination based on national origin, sex, race, retaliation, and disability. Respondent denies discriminating against Charging Parties. Respondent asserts that Charging Parties were discharged as part of a series of Resource Actions designed to reduce headcounts and decrease costs. Respondent contends there was no centralized decision-making, and that each individual manager was responsible for selecting individuals in his or her group that would be laid off. Respondent offered various reasons for selection for layoff including performance, relevant skills, utilization, and consolidation of services. The Commission’s investigation reveals that Respondent conducted Resource Actions analyzed by the EEOC between 2013 and 2018 that had an adverse impact on employees in the protected age group (PAG). The investigation uncovered top-down messaging from Respondent’s highest ranks directing managers to engage in an aggressive approach to significantly reduce the headcount of older workers to make room for Early Professional Hires. Analysis shows it was primarily older workers (85.85%) in the total potential pool of those considered for layoff. Evidence uncovered older employees who were laid off and told that their skills were out of date, only to be brought back as contract workers, at a lower rate of pay with fewer benefits. EEOC received corroborating testimony from dozens of witnesses nationwide supporting a discriminatory animus based on age. See above for a list of Charge Numbers covered by this Determination. Based on the above, Respondent’s asserted defense does not withstand scrutiny and the Commission has determined that there is reasonable cause to believe that Respondent has discriminated against Charging Parties and others on account of their age. Based on the above, the evidence obtained during the investigation was insufficient to establish a violation of Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Americans with Disabilities Act of 1990, as amended, based on national origin, sex, race, retaliation, and disability. This determination is final. The ADEA requires that, if the Commission determines that there is reasonable cause to believe that violations have occurred, it shall endeavor to eliminate the alleged unlawful employment practices by informal methods of conference, conciliation, and persuasion. Having determined that there is reason to believe that violations have occurred, the Commission now invites Respondent to join with it in an effort toward a just resolution of this matter. Disclosure of information obtained by the Commission during the conciliation process may only be made in accordance with the ADEA and the Commission’s Procedural Regulations. A commission representative will contact each party in the near future to begin conciliation. If you decline to enter into conciliation discussions, or when the Commission’s representative is unable to secure an acceptable conciliation agreement, the Director shall so inform the parties, advising them of the court enforcement alternatives available to aggrieved persons and the Commission. On behalf of the Commission: Judy Keenan ________________________ Judy Keenan, Director New York District Office Digitally signed by Judy Keenan DN: cn=Judy Keenan, o=ENFORCEMENT, ou=EEOC/FOR, email=ARLEAN.NIETO@EEOC.GOV, c=US Date: 2020.09.03 13:46:48 -04'00' Date _______________