When the union representing Boeing technical workers and engineers filed age discrimination charges against the aerospace giant in July, the company called the action “a baseless complaint.”
“Diversifying our engineering workforce reflects changes in our business and is not related to the age of our employees,” Boeing said in an emailed statement.
That’s not how workers see it. During the implementation of 2,500 layoffs in the past year, a handful of whistleblowing managers alerted the Society of Professional Engineering Employees in Aerospace (SPEEA) of possible bias, according to Roy Goforth, executive director of the union. In addition to those layoffs, the company announced in April that it will be laying off another 1,000 people in the Puget Sound area by the end of 2015 as part of a shift of some engineering work to Southern California.
Age discrimination cases can be notoriously difficult to prove, experts say, and the experiences of former Boeing employees elsewhere in the country bear that out. Now, however, it seems likely that the aerospace company and its Puget Sound workers are headed toward a long legal brawl of their own.
Managers have the difficult task of deciding whom to fire, so to make the process more objective, the company has developed various performance-ranking system to rate employees. Historically, these evaluation criteria insulated senior employees who had more skills and experience from layoffs. Goforth told Crosscut, however, that recent changes to Boeing’s ranking system have meant that “if you were in your 40s your chances of getting laid off were doubled” while employees in their 50s had triple the risk of getting fired, and those in their 60s had quadruple the risk.
Obama visited Boeing's Everett plant in 2012 to deliver a speech on boosting American manufacturing exports. Photo credit: White House.
To get a glimpse into the future of the union's charges, it helps to look to the south and east; not to South Carolina where Boeing recently announced plans to build the 787 Dreamliner, but to Kansas, where the company is already tangled in a protracted legal battle over alleged age discrimination.
Between 2003 and 2004, in an effort to make its aircraft assembly more competitive, Boeing started the process of selling its manufacturing divisions in Wichita, Kanas and two Oklahoman locations to the aerospace manufacturer Onex (which later became Spirit AeroSystems). After inking the deal, Boeing fired 10,671 workers, making them apply for employment with the new owner. Spirit only rehired 8,354 workers, taking into consideration recommendations from Boeing managers.
The pink slips indeed seemed to be tinted gray: A lower percentage of employees over the age of 40 were rehired — spurring 700 workers to file charges of age discrimination and retaliation against both companies in 2005.
But axing a greater number of older employees isn’t enough to prove bias under the Age Discrimination in Employment Act. To do that, the workers would have to demonstrate one or both types of bias: disparate impact or disparate treatment.
Disparate treatment is a Hollywood-ready type of prejudice: Imagine people gathered in a back room conspiring to fire all the old people. Disparate impact is much less blatant, if it's even intentional. It is what Bran Noonan, an employment attorney in New York who has written about age discrimination law, calls a type of “accidental discrimination,” or a seemingly neutral practice that winds up hitting minorities harder. For instance, a policy that police officers need to be able to carry a certain amount of weight may seem reasonable at first glance, but that weight requirement could inadvertently lead to fewer female officers.
However, Noonan explains that layoffs can “sometimes cross over into both types” of discrimination — intentional and unintentional. For instance, the evaluation criteria used to decide who to fire might give older engineers an unfair disadvantage. The questions then become: Was the criteria deliberately rigged? Is it merely a pretext to conceal a darker motive? Or were the criteria reasonable?
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