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Age Discrimination in the Tech Industry

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 age discrimination.

One wonders how often Google violates the Age Discrimination in Employment Act, which prohibits an employer from refusing to hire, 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.

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