IBM Settles Age Discrimination Case That Sought Top Execs' Emails (theregister.com) 68
Less than a week after IBM was ordered in an age discrimination lawsuit to produce internal emails in which its former CEO and former SVP of human resources discuss reducing the number of older workers, the IT giant chose to settle the case for an undisclosed sum rather than proceed to trial next month. The Register reports: The order, issued on June 9, in Schenfeld v. IBM, describes Exhibit 10, which "contains emails that discuss the effort taken by IBM to increase the number of 'millennial' employees." Plaintiff Eugene Schenfeld, who worked as an IBM research scientist when current CEO Arvind Krishna ran IBM's research group, sued IBM for age discrimination in November, 2018. His claim is one of many that followed a March 2018 report by ProPublica and Mother Jones about a concerted effort to de-age IBM and a 2020 finding by the US Equal Employment Opportunity Commission (EEOC) that IBM executives had directed managers to get rid of older workers to make room for younger ones.
"The emails contained within Exhibit 10 evidence an interest at the then CEO-level to change the profile of IBM employees so that it reflected a younger workforce," said New Jersey Superior Court Judge Alberto Rivas in his order. On June 14 the judge dismissed the case because IBM agreed to settle. That will prevent the messages in which former CEO Ginny Rometty and former HR SVP Diane Gherson are said to discuss what the judge described as "the push to increase the number of millennial employees and decrease the number of older employees" from being made public. "The facts of the matter have not changed: there was and is no systemic age discrimination at IBM and the data back that up," IBM's spokesperson said. "Further, with regards to the Schenfeld case, age played no role whatsoever in this individual's departure."
"The emails contained within Exhibit 10 evidence an interest at the then CEO-level to change the profile of IBM employees so that it reflected a younger workforce," said New Jersey Superior Court Judge Alberto Rivas in his order. On June 14 the judge dismissed the case because IBM agreed to settle. That will prevent the messages in which former CEO Ginny Rometty and former HR SVP Diane Gherson are said to discuss what the judge described as "the push to increase the number of millennial employees and decrease the number of older employees" from being made public. "The facts of the matter have not changed: there was and is no systemic age discrimination at IBM and the data back that up," IBM's spokesperson said. "Further, with regards to the Schenfeld case, age played no role whatsoever in this individual's departure."
Ageism (Score:5, Insightful)
The last socially acceptable bigotry.
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I speak from experience here. I’ve seen what happens when an organization has a limited number of positions and they are mostly filled by old people
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It is the same as racism. It treats people as a group instead of an individual. At "retirement" age I was the technical founder for a company that removed racial bias from financial AI models. Millions of people got a fair shake because I knew how to build a team, get funded, get into the market and build a brand. Judge me by my age? Get stuffed.
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Except, being above retirement age, I'm pretty sure you realize that even the best of us slow
Re:Ageism (Score:5, Insightful)
Companies with workforce turnover plans will have ways to manage the balance the incoming and retiring workforce that are publicly announced and aboveboard. Some companies will offer retirement bonuses to incentivize some near-retirement workers to choose to retire at a time that is more beneficial to the company than the original date they might have chosen. Other companies with structured retirement systems will offer to waive penalties for early retirement such as strict time in employment or minimum retirement ages.
The military is one such organization that needs to balance the number retirees with incoming new recruits. If the military is finding itself too top heavy, it can offer limited early retirement bonuses or offer retirement sooner than the normal minimum 20 years, while balancing the penalties for early retirement. Normally there are a limited number of slots for these programs and you must submit a request to be accepted. Temporary Early Retirement Authority program [themilitarywallet.com]
The Civil Service workforce can also balance their workforce by offering to lower the penalty for early retirement (i.e. from 2.5% for each year before reaching the minimum retirement criteria down to just 2% for each year) or if that still doesn't reduce the numbers then offering one-time incentives to retire early. Civil Service early retirement [fedweek.com]
Responsible companies can manage their workforce balance with transparent policy exceptions without resorting to sneaky HR tactics.
Re:Ageism (Score:5, Insightful)
You didn't really understand my point.
We did, it was incorrect and based on a flawed premise that companies aren't aware of what retirement is and when it comes up. They are, they just want to ignore it.
Your next flawed premise is that companies treat staff like valued assets that should be held onto... No, no, nonono, nope, we are replaceable cogs to be gotten rid of at the first sign of trouble. A lot of companies these days don't even hire on a permanent basis, they use yearly and occasionally monthly rolling contracts. So hiring a 60 yr old is going to be the same a hiring a 25 yr old. Given that everyone in their right mind treats employment as a transaction these days (I'm including employees here... if you think your company values you and will stick up for you, I have several large bridges that can be yours for a very reasonable price) no-one honestly expects someone to last 5 years at a job.
The final flawed premise is kind of not your flawed premise, but is flawed all the same. It's that companies don't have redundancy in skillsets. If you're relying on one person knowing everything about a single, let alone multiple systems you're setting yourself up for failure. As I alluded to, you're not wrong to count this flawed premise because companies do tend to do this, cheaping out on labour and having a massive single point of failure in skills, however it is flawed and not an excuse for agism.
With those in mind, ageism is essentially the same as any other form of bigotry. Especially when your reasoning is that you're not going to get as much "value" out of them as a younger person.
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Except, being above retirement age, I'm pretty sure you realize that even the best of us slow down, pick up various conditions, and eventually leave the workforce through voluntarily retirement, retirement forced on us be health issues or family issues. Some of us simply stroke out. A full team of people like you, no matter how competent, will AGE OUT OF THE WORKFORCE.
This sentiment is the essence of the discrimination. While it might be true that old people tend to "age out" with increasing age, some old people will still significantly outperform younger people. Treating these old high-performers the same as the "aged-out" folks is the problem. Why not just treat old people based on their performance? That should be better for the employers. The problem is that old people cost more. And that is the motivation for the discrimination.
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remove health care from jobs (usa issue) (Score:4, Insightful)
remove health care from jobs (usa issue)
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remove health care from jobs (usa issue)
Ageism still exists out here in the rest of the world where we aren't indentured to employers for our health and wellbeing.
We treat it the same as any other form of bigotry. Sadly like other forms of bigotry you'll get away with it as long as you're not too obvious about it.
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Um...health care is a benefit that is being offered by the employer, there is also the option of going on the marketplace and buying your own. This is not an issue in the USA anymore.
The health care being offered by the employer is generally cheaper than the marketplace, but that is not always true.
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People's earnings tend to follow a curve, rising quickly at first and then levelling off as they get older. So if you want to retain younger people, give them big pay rises of the magnitude they can get by switching jobs.
That said, with inflation the way it is I think a lot of older people will be looking at moving on too now. Few employers are going to offer them 15% or whatever real inflation ends up being, so it's move or get poorer.
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I’m getting old myself, and this is gonna get me downmodded instantly, but ageism is different than the other “isms”. Its not fair, but it’s a hard truth brought on by the uncaring fact that, on this planet, for our species, at our level of technological development, “PEOPLE GET OLD AND RETIRE AND REQUIRE REPLACING”.
I would word that differently. Ageism is the only -ism in which people start out not in a protected class and become part of that class gradually over time. As a result, you can fully manage all other forms of diversity at hiring time, but when a company has been around long enough, if a team was mostly hired in a single round of hiring and if most of them were junior employees at hiring time, odds are good that the original manager was older and has already left, and most of the other people in a team ar
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I speak from experience here. I’ve seen what happens when an organization has a limited number of positions and they are mostly filled by old people. It’s not that the old people are bad. In many ways they are productive and highly experienced, and better than the young folk.
Thank you for clarifying that ageism is all about cost, and not competence.
Those youngsters have energy but gawd as a group they flighty, mercurial simply inexperienced.
Let's clarify this a bit, since "flighty" means fucking greedy. Young people today see staying in one place as a Bad Thing, and assume every step they take means Mo Money. Sure, this can naturally create an aging workforce in some places that treat their employees well enough that they stay, but that doesn't mean companies have to be Evil about age either. And they'll pay the price for it when caught, since we do not want to read
Re:Ageism (Score:5, Insightful)
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Yeap. I was at a university department that admitted it pushed out an IT admin for the crime of being old. I got the hell out of there.
IN SV, you're only useful to a company if you don't seem old and look young even if you're 45 or 50. "Old = bad" is the hivemind logic behind consumerism and hypothetical "accidental" innovation, when OGs with experience might know a thing or two that actually delivers sustained, realizable success.
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I wish it was the last. I can think of plenty of others that are still socially acceptable, at least for large parts of the population.
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Actually age discrimination laws protecting those of older ages have been on the books for a while. The Age Discrimination in Employment Act of 1967 which predates a lot of other anti-discrimination laws.
Old people vote, so Old people get their way.
However, companies had found rather easy ways around it. With jobs requiring a high degree of physical fitness, a particular level of eye sight, and often the ambiguous the right personality for the job. While for some jobs, these standards are actually extremely
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I always chuckle when I read about how younger developers bring new ideas that the older crowd do not know about or will not adopt or so on. It is true that new developers are often more enamored by new technologies and adopt them quickly but they are just as likely, and more than more experienced developers, to overlook or misunderstand that technologies that they are adopting because they lack experience. If you have tried to teach anyone that has a lot less experience than you do is that they make mistak
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I don't think Age limits understanding, however Doing the same job over the years will often limit your exposure to such technologies. The Kids out of college, had 4 years where they are exposed to the new stuff and how to use it. While during that time, we will be on the job finally getting implemented a project that is using the well tested and approved technology. Perhaps finally replacing that Mainframe COBOL app, into a a Client Server or Cloud based Python App. While the kids who join the company k
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that depends entirely on who you hang out with
Suuuureee.. (Score:5, Insightful)
"The facts of the matter have not changed: there was and is no systemic age discrimination at IBM and the data back that up," IBM's spokesperson said. "Further, with regards to the Schenfeld case, age played no role whatsoever in this individual's departure."
Yes IBM. That's why you chose to settle, and why you chose not to let those emails hit the public court record.
It's because they completely exonerate your company in any and all ways concerning this matter! OBVIOUSLY!
I mean, WHY ELSE would a prominent (if has-been) tech company choose to settle with a small time peon bringing suit?
Re:Suuuureee.. (Score:5, Insightful)
I say all of this as a (jaded) millennial myself.
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I never understood how is this even an option (settling).
A simplified view, of course, but that basically means paying your way out of trouble. Go beyond a financial threshold (read as "be large enough") and you never have to go through a trial again. This only incentivizes further misbehavior.
Re:Suuuureee.. (Score:5, Interesting)
Civil lawsuits are pretty much all about money - that's the only recourse the courts can really do is move money from one person's pocket to another.
And settlements are always cheaper and more certain on all parties than going to trial. Roughly 90-95% of all lawsuits are settled.
And yes, bringing a suit to trial is unpredictable - you don't know how the judge or jury is going to rule and even worse, you don't know how they'll decide on damages. There's a chance the lawsuit may be found in the defendant's favor and they may be awarded damages, it may go in your favor. The damages may be significant including fees, or it may be symbolic, like $1.
You may have a valid lawsuit. But the jury may hate the way you present yourself and instead of awarding you the $100,000 you're owed, they may say yes, you win, but award you $1 because they didn't like you.
So people settle because it eliminates a lot of the headache - do you want to take it to trial and gamble on the result, or would you settle instead for a known amount of damages?
Judges encourage people to settle, too - it avoids the expense of a trial, the uncertainty of who would win, and the uncertainty in the damages awarded. In fact, for any particular court date and time, the judge may book 5 or 10 separate cases to appear on the same date. The judge will ask everyone showing up if they could possibly settle their case, and maybe try harder. It's generally expected that 9 of those 10 cases will be settled.
It's a must-show time too - so even though you may see 10 cases are listed to show up at the court that day at that time, the judge may decide that if one side isn't prepared to see the case through (especially if one side's representation is missing) just to get it over with (the court literally says to be prepared to present your case so even though there may be 9 other cases at the exact same court at the exact same time, you have to be prepared).
It's highly likely IBM found something bad in those emails, and rather than have their dirty laundry aired, make the opposing side a settlement they couldn't refuse. It might be easier to keep those emails under wraps and simply pay off the other side - even if they wanted like $1M per person, it might settle for say, $1.5M per person because it's cheaper to pay everyone off at more than they wanted than risk going to trial.
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I understand all that, but I always considered settling would be a good solution for small cases, where parties are not giant corporation behemoths.
It's one thing to settle for 10% of your wealth, as a private individual, and a totally different thing to settle as a faceless corporation for what amounts to 10 seconds worth of profit.
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By settlin
Look a troll (Score:2)
Cause and effect. Sorry Charlie. Let us not forget IBM could have settled the SCO lawsuit at anytime but chose to fight on over many many years and at great cost.
Large corporations do not settle unl
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"Less than a week after IBM was ordered in an age discrimination lawsuit to produce internal emails in which its former CEO and former SVP of human resources discuss reducing the number of older workers, the IT giant chose to settle the case for an undisclosed sum rather than proceed to trial next month." Cause and effect. Sorry Charlie. Let us not forget IBM could have settled the SCO lawsuit at anytime but chose to fight on over many many years and at great cost. Large corporations do not settle unless they want something to go away and to prevent airing of dirty laundry. Put another way, if the emails just showed a sensible concern about an aging workforce and a sensible plan about replacing that work force, IBM would have continued. IBM was engaged in some pretty shady practices. So no.
I want to add that IBM as rule does not settle. They fight to the last lawyer.
If IBM is settling it is because they did something wrong and they do not want to loose (worse?).
So - I agree, IBM did this because they knew it will save them money SOMEHOW.
Re:Suuuureee.. (Score:5, Informative)
If you or anyone you know was forced out of IBM, contact this law firm who will take the time to listen to you [llrlaw.com]. Trust me.
For grins and giggles as to IBM's focus in 2017, here's an article from the wayback machine [nytimes.com].
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It depends on the budget of their legal department, what else they have going on, their priorities, the optics and reputation hit, and the complexity of effort of the potential cases involved. Many large corporations have enormous legal departments that have nothing better to do than find something to work on.
IBM effectively managed to win the PR war on this by going to every outlet and spewing some BS about how they were innocent. If the other side had done the same and countered them, it would've made a p
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Believe it or not, trials are big headaches even for multi-billion dollar corporations.
So is maintaining a fucking army of lawyers on "stand by", and paying that obscene cost 365 days a year.
If it all just for show, it will quickly become obvious that you maintain a Cry Wolf department of child litigators who have never grown up to see a courtroom, and own many sets of free steak knives.
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IBM's spokesperson is full of shit, and IBM's executives that spearheaded this effort are shitty people.
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They were obviously afraid of some other facts being exposed. Discovery is a great tool that allows lawyers to build a case one way or another. Microsoft's legendary misdeeds including old Alchin/Gates emails "We need to slaughter Novell" [wikipedia.org] wasn't really good for their case at the time.
No Settlements! (Score:2, Insightful)
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In civil cases if a settlement offer is made and you refuse to accept it, you are potential liable for all the legal costs resulting from going to court, even if you win. The only way to avoid the costs is to win significantly more than you were offered by the settlement. The "more" part doesn't have to be money, but it usually is.
That rule is there to prevent lawyers deliberately racking up massive legal costs in cases where one party accepts that they are in the wrong and just wants to make it right as q
Got their asses handed to them (Score:5, Funny)
"The facts of the matter have not changed: there was and is no systemic age discrimination at IBM and the data back that up," IBM's spokesperson said. "Further, with regards to the Schenfeld case, age played no role whatsoever in this individual's departure."
Riiiight! Immediately after being subpoenaed for incriminating evidence, you cave and settle because you're 'innocent'. Riight..
Move along, nothing to see here (Score:3)
There's absolutely nothing of any note in our executive's emails. Our lawyers looked, and I'm sure the color draining from their faces was just some kind of stomach bug.
A lot of factors go into deciding whether to settle, but I really wish they would have taken this to trial and gotten discovery that would have made those comments part of the public record.
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There's absolutely nothing of any note in our executive's emails. Our lawyers looked, and I'm sure the color draining from their faces was just some kind of stomach bug.
A lot of factors go into deciding whether to settle, but I really wish they would have taken this to trial and gotten discovery that would have made those comments part of the public record.
What is fun though is that there is a larger class action. This means that they can request that information from IBM as well. It may no longer exist, but then they get to explain why they destroyed it. It's going to be fun times!
What we could of done, but didn't (Score:3)
IBM: Well, at least we didn't grind their bones for our bread or herd them into the Soylent Green factories. Give us some credit.
Dodged a bullet (Score:1)
Graduated with a masters in Software Engineering (1990). My top two choices for a job after was the IBM TJ Watson research center and Bellcore. At the time, both choices looked like lifetime employment opportunities. Chose Bellcore because of better contacts. Turns out neither were a lifetime job. Bailed and went to Wall St. Did 10 years there and retired young. Missed out completely on being age discriminated.
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OMG, you are awesome! You are so fucking awesome! Can you tell me more about you, please? It is cool how you do not have problems like regular shitty people. I can totally tell how happy you are with your life. Thats why you drop in and tell random strangers about how great your life is. Cause you are so happy. Awesome!
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Skip the hookers and blow with the stockbrokers as a quant, or did a McConaughey?
Settlements and Undisclosed Nonsense (Score:5, Insightful)
The problem is that it's simply more profitable to screw people over, than it is to not screw them over. Corporate tort reform and caps on penalties means the justice system has no teeth.
I have never been a fan of tort reform. We need to change things up a bit.
You want to settle out of court? Okay. But you have to agree to pay 50% more than you would have faced in court. Hush money should be expensive. And you can't declare Chapter 11 or 13. Pay up or your company goes into plain old bankruptcy, and it gets chopped up and the pieces get tossed into the market to pay off your debts and obligations, and your investors get whatever is left.
You want to take it to court? Okay. But the penalties should be tied to the profits of the company in question. You made 5.2 billion this year? Well, you made that money while engaging in wrong-doing. Therefore that entire year of profits is forfeit. And you still have to pay taxes on it, too.
Oh, and just one more thing?
When you lose the case, the company should pay the full amount right up front. The accountants should be in the courtroom, ready to transfer the money. If you want to appeal, then the money gets transferred to an escrow.
The bottom line is that the company is required to fork over the money right then and there. If they win the appeal, then it can be given back. But in the meantime, the existing leadership and board of directors can be exsanguinated by the investors for costing them so much money.
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Why didn't they try to leverage the experience of the older workers instead of replace them? Find out what they are doing "wrong" and correct it. Are they that bad?
I suspect part of the problem is that the industry is driven by fads, and the older employees either recognize them as fads, or get tired of keeping up with the Jonesdashians.
IT is largely a fad-driven racket that scares people into dumping old tools for the shiny (expensive) new one. The most productive people I've witnessed generally master th
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Why didn't they try to leverage the experience of the older workers instead of replace them?
Likely at least in part because the older workers were being paid far more than the newbies.
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In that case they should change their pay system to not reward seniority alone. It's probably unrealistic to implement it on existing staff, but new hires could be subject to it. They should still have token seniority raises because everyone expects it, but make them small.
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Realistically, I'm not sure all of those stipulations would work?
I mean, especially a demand the company has to pay the full amount of a settlement, up-front, while in the courtroom? Most businesses don't have that kind of money just sitting around in the bank, ready to transfer at a moment's notice. Much of their wealth on the books involves stock options or investments in various places, etc. A huge settlement, at least 50% larger than what than a court would have awarded if they lost a case in a trial wo
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There is a machine sitting in a room.
That machine has all kinds of signs, warnings, labels, flashing lights, loud klaxxons, beepers, buzzers and whoopers. The moment you come within 10 feet, the lights start flashing. A little closer, the buzzers go off. Closer, and the klaxxons go off in the whole building.
All around the machine are blood spatters, bits of rotting flesh, shreds of clothing, and a few formerly internal and now distressingly external organs, as well as thick clouds of flies, and seething
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Those who were there know the truth (Score:1)
The Settlement Lacked One Thing... (Score:3)
If there really was no discrimination, then those e-mails would have exonerated IBM. So why hide them? Everyone knows they chose to weasel their way out and settle because they knew those e-mails were a smoking gun and did not want them made public. That's all. If nothing happened, why settle?
And, in typical corporate American fashion, they get away by paying a pittance to just make it go away. Of course the settlement amount is small change compared to fines, damages, and other such costs. And they get to publicly lie and say "nothing happened". The judges in these cases need to grow a spine and make it a condition that they either admit to wrong doing if they settle or proceed to trial.
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The guy got handsomely paid off and dropped the lawsuit, nothing the judge can do about that. But it definitely seems incriminating.
What IBM is afraid of. (Score:2)
Getting this raised to class-action status.
Things haven't changed in 15 years... (Score:5, Interesting)
I left IBM in 2008 and one of the key events that assisted me in that decision was the utterance of the following by Randy MacDonald, former Senior VP of HR in a conference room at the 71 S. Wacker office in Chicago around 2007:
"Sometimes it's necessary to let the older workers go. Oops, the lawyers don't like it when I say that. I mean the more EXPERIENCED workers".
His entourage of around a half-dozen people laughed the comment off, but 50 or so people out of 150 like myself in the front of that conference room all looked at each other and asked, "did he seriously say that?".
There was absolutely no concern on Randy's part when he said it and the fact it still occurs today means IBM's cavalier and pervasive attitude towards ageism and how it views workers hasn't changed one bit despite numerous settlements.
No business ethics (Score:2)
It'd be nice to see something in the middle of the two for once . . .
The magic number 75 (Score:2)
I worked at IBM for a number of years and came to find out that if your age plus your years of service add up to at least 75 you are going to be targeted for layoffs. This was not a very well-kept secret and it sure does sound like age discrimination to me.
In my case and for several others I knew, when my 'number' hit 75 I was politely asked to retire (I was well under retirement age). Received multiple letters and queries from the manager. No pension or severance was offered, but I could work 3 days a week
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