IBM Avoids Liability for “Inartful” HR IM

By Bill Wright

HR professionals slip into jargon and euphemisms, like everyone else. Also, like everyone else, HR professionals think their instant messages are too ephemeral to become evidence in a discrimination suit. Not so. The courts recently had to address whether an exchange of instant messages between HR professionals about a reduction in force provided direct evidence that the employer discharged an employee because of his age. The IM exchange referred to the employee’s “shelf life.” The HR professionals were actually talking “inartfully” about the employee’s remaining work, and they ultimately decided NOT to include the employee in the reduction in force. Months later the employer discharged the employee for performance-related reasons. Still the IMs found their way into the litigation, as evidence for the employee, and the employer had to fight the claim all the way to the court of appeals. Watch your thumbs! Roberts v. IBM, No. 12-5169 (10th Cir. November 5, 2013).

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