New York City is beginning to rival Silicon Valley as a center of tech
commerce, and as employment law attorneys, we are concerned as signs of
age discrimination in that industry become commonplace.
Google recently posted
statistics showing a workforce that is rather non-diverse in gender and race. Google's
workforce is 70 percent male and 30 percent female. And Google's workforce
is 61 percent white and 30 percent Asian. Only three percent of Google's
workforce are Hispanic, two percent are African-American and four percent
are described as "two or more races."
But even more telling was a significant omission in the figures: age. There
is nothing about the age of its workforce in the published numbers. Why?
According to a recent article in the New Republic "Silicon Valley
has become one of the most ageist places in America. Tech luminaries who
otherwise pride themselves on their dedication to meritocracy don't
think twice about deriding the not-actually-old. 'Young people are
just smarter,' Facebook CEO Mark Zuckerberg told an audience at Stanford
back in 2007."
A few years ago, Google settled a lawsuit alleging age discrimination by
Brian Reid, who was hired by Google in a senior tech role when he was age 54. Reid
quit after two years when he was re-assigned to head up a new program
with no staff that was quickly phased out. Reid said supervisors and co-workers
at Google made derogatory comments about his age, stating that he was
not a "cultural fit" for the company, that he was "an old
man," "slow," "sluggish," "lethargic"
and "an old fuddy-duddy" who "lacked energy." Co-workers
allegedly joked that Reid's CD (compact disc) jewel case office placard
should be an "LP" (which stands for long-playing record). The
lawsuit was reportedly settled after the California Court of Appeals said
Reid had presented undisputed evidence supported a prima facie case of
One wonders how often Google violates the Age Discrimination in Employment
Act, which prohibits an employer from refusing to
firing, or otherwise discriminating against an employee age 40 or older, solely
on the basis of age. Thus, an employer can't deny an employee pay or
fringe benefits when the only justification is age. Nor may an employer classify employees
into groups on the basis of age in a way that unfairly deprives workers
of employment opportunities. For example, an employer may not relegate
all older workers to a particular level of employment within a company
and then decline to promote them.
In New York City, the New York City Human Rights Law also protects employees
from age discrimination. It provides better protection than the federal
and state age discrimination laws. In New York City, the burden of proof
is lower because a person only needs to prove that age discrimination
was a "motivating factor" in the decision. This means that other
factors may have been at play as well. But under federal and state law,
an age discrimination plaintiff has a tougher burden of proof because
they need to prove that age discrimination was the only factor involved.
The takeaway? If you are one of the few older workers employed by a tech
company in New York, and you feel that you have been subject to age discrimination,
be sure to contact an employment law attorney.