Employers like Human resources departments increasingly have been adopting<\/a> AI-powered tools to help streamline their business processes and efficiently complete tasks like drafting job descriptions and performance reviews or responding to employee inquiries.<\/p>\n As a result, there\u2019s a growing discomfort at the prospect that jobs traditionally viewed as needing a human touch may now actually be on the chopping block.<\/p>\n \u201cIn the past, HR fields haven\u2019t necessarily been a field where we think of automation or technology taking over in a meaningful way. It has been a people-related field and it\u2019s been run by people,\u201d said Michael Schulman, a partner at Morrison & Foerster LLP. \u201cAnd we\u2019re certainly seeing a shift in the recruiting space, in particular larger employers\u2019 use of AI to review resumes, to cull out the right people, to decide who\u2019s going to get interviews and who\u2019s not.\u201d<\/p>\n With more companies expecting<\/a> to restructure and incorporate AI into their hiring and staffing efforts in the coming year, attorneys are urging employers considering layoffs as part of a restructuring effort to proceed with caution.<\/p>\n If an older worker can prove that AI and their age contributed to the adverse employment action, that could be fodder for a claim under the Age Discrimination in Employment Act, they said.<\/p>\n Case in point: a recent lawsuit<\/a> accusing IBM of unlawfully cutting short the decades-long careers of two HR employees because they were 60 or older to make room for younger workers. IBM\u2019s increased reliance on AI tools to \u201creduce the number of real humans handling human resource functions”\u2014amid a series of layoffs\u2014caused the termination earlier this year, the suit alleged.<\/p>\n IBM CEO Arvind Krishna earlier this year<\/a> had announced plans to suspend or delay hiring for roughly 7,800 jobs that AI could replace, including back-office functions like HR.<\/p>\n \u201cThere\u2019s an inherent assumption that older workers are going to be resistant to change, slower to take up and build on new technologies, and might not be beneficial to a company\u2019s long term growth as younger workers,\u201d said Matt Scherer, a senior policy counsel for workers\u2019 rights and technology at the Center for Democracy & Technology.<\/p>\n \u201cIn that sense, I wouldn\u2019t be surprised if the things described in the complaint are true and if those assumptions were somewhat underpinning some of these layoffs,\u201d he said. But the lawsuit lacks any \u201csmoking gun\u201d to show that age was the predominant factor in the decision, Scherer said. <\/p>\n The terminated IBM workers accused the company of using stereotypes to make employment decisions and presuming that younger workers could better adapt to new technology.<\/p>\n The plaintiffs\u2019 supervisors and colleagues allegedly described older workers as having shorter \u201crunways,\u201d referring to the number of years before their retirement. And they regularly expressed the need for employees with \u201cnew skills\u201d or \u201cnew energy,\u201d the suit said. <\/p>\n Whether IBM can defeat the allegations depends on its evidence that the older workers were laid off for reasons unrelated to their age.<\/p>\n An IBM spokesperson had denied the allegations, saying in a statement to Bloomberg Law that age wasn\u2019t a factor in its employment decision. The company \u201cwill vigorously defend itself against each of the allegations in this complaint,\u201d the spokesperson said in a statement. <\/p>\n But the former IBM workers\u2019 role in HR could give some weight to their case that other ADEA plaintiffs typically lack.<\/p>\n \u201cThey certainly have more access to information than a normal employee would about reductions in the workforce and how much runway someone has, which obviously is going to be another thing that correlates with age,\u201d said Esther G. Lander, a partner at Akin Gump Strauss Hauer & Feld LLP. <\/p>\n \u201cThis is obviously only half of the story\u201d until more information comes out, she said. \u201cBut they, being HR people, have more evidence than most,\u201d Lander said.<\/p>\n Federal case law on the criteria for establishing an age bias claim remains murky, Scherer said. The lack of a consistent standard creates an uphill battle for older workers to prove they experienced discrimination because of their age, he said. <\/p>\n Plaintiffs bringing age discrimination claims can sue under two theories: disparate treatment and disparate impact.<\/p>\n In this case, the IBM workers are alleging intentional, or disparate treatment, age bias claims. Those require direct or circumstantial evidence to prove that they would not have been laid off but for their age. That\u2019s a heavy burden because many workers would lack such evidence, attorneys said.<\/p>\n Under the disparate impact theory, an employee would show that a facially neutral company policy or practice has a disproportionate impact on employees aged 40 or older.<\/p>\n The latest case joins a string<\/a> of age bias complaints against IBM by former employees over the past several years, some of which have settled<\/a> or been dismissed.<\/a> <\/p>\nRole Lends Weight<\/strong><\/h2>\n
One of Several Suits<\/h2>\n
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