Age Discrimination Lawyer NYC | Laid Off Over 40 While H1Bs Are Spared?

Technology companies, government agencies, and retailers have laid off hundreds of thousands of workers over the past few years.  Increasingly, however, courts are providing guidance about when the age discrimination laws protect the over 40 worker from being targeted for worse treatment, despite good performance reviews.  In addition, the Trump administration has a new focus on discrimination in corporate America against U.S. citizens in favor of H1B visa holders or other foreign-born workers.

Layoffs, Reductions in Force, and Constructive Termination

A layoff or reduction-in-force involves putting workers on leave, furlough, or suspension, or firing them or terminating their employment, alone or in a group.  Recently, the courts have also clarified that a mandatory transfer to an undesirable location or role may also constitute a negative employment action to which employment laws apply.  Prior to the 1970s, companies and government agencies tended to avoid the harsh and embarrassing move of getting rid of large numbers of workers, and admitting to being in crisis mode.

Constructive termination or being “forced to quit” is an issue with employers or supervisors who make life difficult or impossible for employees, leaving them with little choice but retiring, quitting, accepting a buyout or severance package, and so on.  It may be that two or more supervisors or even two or more employers bring about the basically unwilling resignation of an employee who has been targeted at work.

A New Decision on IBM and Similar Claims of Age Discrimination Over Decades

Age discrimination is taking a negative action against a person, generally over the age of 40, based on their age.  This may include firing them, laying them off or putting them on leave, transferring them to an undesirable post, denying them raises or promotions, or failing to hire them or consider their applications in the first place. 

In a recent case, a court allowed claims against International Business Machines (IBM) to go forward on an age discrimination theory after mass layoffs.  IBM got rid of thousands of U.S. citizens, including many over the age of 40, sometimes pointing to business lines that were unprofitable or not a priority, or questions about performance. 

Led in part by Jonathan Rosenoer, an IBM executive and inventor in Connecticut, and R. Kevin Rodriguez, a 19-year IBM employee in Florida, an age discrimination lawsuit involving 16 employees defeated a motion to dismiss, and may be resolved out of court.  The employees quoted IBM documents engaging in a generational analysis of the workforce, criticizing “baby boomers” and expressing favoritism for “Millennials” and younger workers.  IBM policies allegedly exempted some “early professionals” or “early professional hires” from layoffs or reductions in force.

IBM wanted the lawsuit to be dismissed without a trial.  The company claimed that such a case required employee to send administrative notice of their discrimination charges to the U.S. Equal Employment Opportunity Commission.  U.S. District Judge Vincent L. Briccetti rejected dismissal, finding that plenty of claims had put IBM on notice of potential discrimination claims over the years, and the 16 plaintiffs could “piggyback” on earlier age discrimination charges that had been provided to the Commission.

New Guidance on Discrimination Against U.S. Citizens in Favor of Migrant Visa Workers

Section 1981, a federal law, protects employees from discrimination based on their “national origin,” as well as their race or ethnicity.  Section 1981 does not govern discrimination related to age, gender or religion, which the Age Discrimination in Employment Act and Title VII cover.  People who live or work in New York State or New York City may also have rights under the New York State Human Rights Law and New York City Human Rights Law.  People from other states can use comparable laws. 

In February 2025, the EEOC announced that it would focus on “protecting American workers from anti-American national origin discrimination” at work.  This would happen, it said, by “increasing enforcement of employment antidiscrimination laws against employers that illegally prefer non-American workers, as well as against staffing agencies and other agents that unlawfully comply with client companies’ illegal preferences against American workers.”

In 2024, a federal jury in California found that an information technology firm had discriminated against three U.S. citizen workers and a class of more than 2,000 others, based in part on statistics indicating that the firm had sidelined and frequently terminated U.S. citizens, and favored H1B visa holders who were Indian and/or South Asian.  Similarly, an appeals court in California allowed claims to go forward against Meta, parent of Facebook and Instagram, for discrimination against U.S. citizens and in favor of H1B visa holders.  The court stated that: Congress guaranteed that “all persons … shall have the same right … to make and enforce contracts …,” including contracts relating to employment.  The law seems to be the same in New York, with a case filed in federal court there reportedly settling after the court ruled in 2020 that one plaintiff could go forward with claims that the defendant kept “an ‘inventory’ of ‘visa ready’ workers from India to fill positions at the company by petitioning the federal government’s lottery program to obtain a large amount of H-1b visas, and preferences hiring from this pool of applicants over U.S. citizens and visa-ready individuals not from South Asia (in particular, India).”  (Some NY courts focus on nation of origin more so than nation of citizenship or citizenship status in interpreting Section 1981, although the New York State Human Rights Law also bars discrimination based on citizenship.)

Contact a New York Employment Lawyer Today

These are just a few examples of the protections that older workers or U.S. citizens may have under employment laws.  For more specific information geared to your situation, contact an attorney at Leeds Brown Law to see if you have a legal claim or claims.

Our efforts have resulted in millions of dollars in monetary and non-monetary compensation for consumers and employees throughout New York City and Long Island.  We can help answer your questions and evaluate your potential claim.

A free consultation can help you understand your rights and take action to protect them, including by contacting human resources or the government.