The lawsuit also claims that Musk has a history of discrimination against older people, and cited an interview last year in which he stated: “I don’t think we should try to have people live for a really long time… if they don’t die, we will be stuck with old ideas and society wouldn’t advance…” No surprise that, along with employees over 50 years of age, over 1,000 advertisers also left the social media platform.
John Zeman was informed of his layoff on November 4, 2022, when he was 63 years old. In his complaint, Zeman says employees were laid off "under extremely hurried circumstances, with little if any regard given to employees' job performance, qualifications, experience, and abilities.” And regarding whom to lay off, most of the decisions were made by a small group of managers. Some managers were even brought in from other companies owned by Musk — and Musk closely supervised the layoffs. Before the November 2022 layoffs (just after Elon Musk’s purchase of Twitter in late October 2022), Twitter employed in the U.S. about 248 employees aged 50 or older and 4,716 employees under the age of 50. Of those 4,964 employees, about 149 of the older employees were laid off, or about 60%, compared to 2,537 employees under the age of 50, or about 54%.
With employees aged 60 or older, the discrepancy is higher. Twitter laid off approximately 24 out of 33, or about 73% of employees aged 60 or older, compared to 2,662 out of 4,913 employees under that age, and again about 54%, according to Zeman’s complaint.
Zeman also claims that the discrimination was willful. Judge Illston, however, agreed with Twitter that the complaint didn't show intentional age discrimination, also known as "disparate treatment”, which only needs to show that the treatment fell more harshly on the protected group of older workers. She said that, at this stage in the litigation, a plaintiff must show circumstances supporting an inference of discrimination, among other facts.
"Here, plaintiff has not pled that his performance was satisfactory or that the younger employees who were retained were similarly situated to the older employees who were laid off," Judge Illston said in her order and reported by Law360.
According to Bloomberg Law News, the ruling on August 29 addressed an issue that has divided some federal appeals courts: whether subgroups of workers 40-and-older can sue for disparate impact age discrimination under federal law. They can, the US District Court for the Northern District of California said, agreeing with decisions by the Third Circuit that states: “The Age Discrimination in Employment Act ("ADEA") protects only those individuals who are at least forty years of age. The question in this case is whether a disparate-impact claim is cognizable where a "subgroup" of employees at the upper end of that range—in this case, employees aged fifty and older—were alleged to have been disfavored relative to younger employees.”
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The judge gave Zeman a month to file an amended lawsuit fleshing out that claim. The case is John Zeman v. Twitter Inc. et al., case number 3:23-cv-01786, in the U.S. District Court for the Northern District of California.