New Hiring Lawsuit: Swanson v. IBM
by Heather Bussing
This one’s a little different. It involves hiring, probable ATS rejections, and questions about bias in tech. But Swanson v. IBM (filed in Federal District Court for the Western District of Texas) is by a former employee against his employer, IBM. It’s not about an HR Tech Company, at least directly. Yet.
The reason why this matters is because the employer is the one on the hook no matter who gets sued. They are the ones who created the adverse employment action when a candidate gets rejected, no matter how the candidate gets rejected.
And even when the employer doesn’t get sued, they are still on the hook because they’re the ones with all the evidence. For example, in Mobley v. Workday, the plaintiff only sued Workday. That’s because they want to create a class action for as many people as possible who have been rejected by employers using Workday tech. Suing employers would limit the class and make things very messy. But it’s the employers who will get subpoenaed to produce their hiring data, tech settings, and other records relating to the rejections.
It’s part of doing business. But it sucks to deal with subpoenas all day. Ask Facebook who has a whole team of people who do nothing but respond to records requests for copies of people’s feeds for use as evidence in employment, custody, domestic violence, and injury disputes. Really. I don’t care how funny it was in the moment, if you’re off work for a back injury, don’t post the photos of doing belly flops off a cliff in the Bahamas. (The employment lawyers are all nodding and thinking, “I had a case like that.”)
Back to Mr. Swanson and IBM. He worked successfully at IBM for over 24 years and was let go. They specifically told him it had nothing to do with performance. He suspected that the company was trying to shed older, more expensive workers and prioritize “Early Professional Hires.”
After leaving, he started seeing postings for jobs surprisingly similar to the one he had left, which undermined any argument that his position was eliminated. So after a couple months, he applied for one. Why not? He was certainly qualified.
But he received a GLIYFE (good luck in your future endeavors) auto rejection within 2 days of applying. Hmmmm. We have a candidate with direct experience who was definitely qualified for the role but rejected without even an interview. It is not exactly surprising that now there’s an age discrimination suit.
IBM hasn’t answered the complaint, but all answers deny liability so we know what it will say. The real issue is what is the evidence?
There may have been a filter or setting on the ATS that created biased outcomes based on age. It may have even been a don’t-rehire-people-who-were-terminated filter, which seems wrong but may not be illegal. Or maybe the guy was a jerk to deal with and someone actually saw the application and said, “Oh hell no, not him again.” We’ll eventually find out.
In the meantime, I’m getting calls from older white men who think they might have been discriminated against based on age. They are fascinating discussions since most of these people have never experienced discrimination before in their lives; they’re often in shock that it actually happened to them.
The reality is that many investors don’t care. Money is more important than people to them. And it makes perfect sense, some even argue that they have a fiduciary duty, to get rid of more expensive employees if it increases profits.
The trouble is that it’s illegal under both state and federal employment law. Civil rights really are for everyone. And the minute it's okay to discriminate against anyone, then everyone is next.
Discrimination is also stupid and wrong. I guess it’s time to quantify the value of institutional knowledge, wisdom and good judgment.