Testifying before Congress this fall, the new chairwoman of the U.S. Equal Employment Opportunity Commission outlined the agency’s top principles – first among them, a responsibility to promptly investigate discrimination complaints.
“We owe it to these employees as well as everyone else involved to honor their courage by swiftly addressing their concerns,” commission chairwoman Janet Dhillon told the committee. “Too often the sad reality is justice deferred is justice denied.”
And yet for more than four years, Intel workers have waited while federal watchdogs sort through the wreckage from the biggest job cuts in the chipmaker’s history – a bloodletting that cost 17,000 jobs in the middle of the decade and prompted dozens of age-discrimination complaints.
A 2016 investigation by The Oregonian/OregonLive found Intel workers over 40 were more than twice as likely to lose their jobs as their younger colleagues during the 2016 cuts. Workers over 60 were eight times more likely to lose their jobs than those under 30.
Dozens of Intel employees complained to state and federal regulators following the two round of cuts, citing the news organization’s reporting. Documents and other information obtained by The Oregonian/OregonLive show the U.S. Equal Employment Opportunity Commission took their complaints seriously.
The agency launched an investigation and classified the case as “systemic,” meaning the alleged discrimination has a broad impact.
Now into its fifth year, though, the EEOC investigation of Intel still hasn’t come to a conclusion. Publicly, the commission won’t even acknowledge it is investigating Intel.
The sluggish pace of that inquiry is emblematic of the barriers older workers face when they try to address discrimination, according to attorneys and those who advocate for seniors. They say funding shortfalls, lax enforcement and limitations in protections for older workers make them uniquely vulnerable when employers discriminate.
Legislation just passed by the U.S. House might remedy some of those issues, though the bill’s prospects are uncertain in the Senate. Oregon lawmakers considered similar protections earlier this year, too, but didn’t act.
“It really shouldn’t take this long. It’s unacceptable,” said U.S. Rep. Suzanne Bonamici, D-Oregon, who has been tracking the Intel investigation. She also chairs the House subcommittee on Civil Rights and Human Services, which oversees the EEOC, and said she’s frustrated the commission hasn’t done more on the issue.
“The EEOC is here to protect people against discrimination,” Bonamici said.
Seeking action
Oregon engineer Ron Tsur, 67, lost his Intel job in 2015 layoffs after six years with the company. He’s now spent two-thirds as long seeking some kind of reckoning.
Tsur filed his initial age-discrimination complaints against Intel in 2015, joined by at least a dozen other Intel alumni in the federal case. In the intervening years, the focus of his ire has gradually shifted from the company that laid him off to a government that says age discrimination is against the law but takes years to decide how to apply the law.
“I don’t know how the rest of the government is functioning,” said Tsur, who lives in Banks. “All I know is the process I got bolted into is not.”
Originally from Israel, Tsur brings an engineer’s fervor for data and a scientist’s ill-regard for social graces. The Intel case has become an obsession. Tsur will speak for hours on the intricacies of Intel’s human resource practices and the nuances of federal antidiscrimination law. He created a website to chronicle his campaign, and brought his case directly to the bureaucrats, congressmen and senators he holds responsible for upholding the law.
Oregon’s Bureau of Labor and Industries dismissed his complaint for lack of “sufficient evidence” to investigate. The bureau suggested Tsur consult an attorney instead, but he couldn’t find any takers given a difficult federal standard for proving age discrimination.
So Tsur poured his efforts into prompting action from the EEOC. The agency’s offices in San Francisco, Seattle and Washington, D.C., all proved to be black holes: Tsur couldn’t get any kind of substantive response on the status of the case.
“I see that things are not going anywhere,” Tsur recalls thinking. “I need to do something more radical here.”
That’s how Tsur found himself on a bus to downtown San Francisco last March. Staying with friends south of the city, Tsur packed a sandwich and arrived without an appointment at the commission’s regional office asking to speak with the regional director about his case.
“Did you come here to file a complaint?,” Tsur recalls the office staff asking. “No. I filed a complaint years ago. They were confused. They didn’t understand why I was there.”
Staff suggested Tsur check the commission’s website instead. Tsur insisted on meeting the director. Staff told him the director wasn’t available.
So Tsur packed himself a sandwich and got back on the bus the next day. And the next. And the next. And the next.
Then, on a Friday afternoon at the end of the week, Tsur says the director came out from his office to offer a brief conversation – but no answers.
“He was very nervous. He was very dismissive,” Tsur recalls. “The questions he asked me were more related to, ‘Why are you doing this?’”
‘Too harsh and quick’
The Intel case began with a pair of mass layoffs that began in 2015. Under former CEO Brian Krzanich, the chipmaker set about reducing its dependence on PC chips in favor of new technologies. Krzanich said the company needed new skills for new technologies.
The job cuts in 2015 and in 2016 pushed out at least 15% of Intel’s workforce and saved billions of dollars but kicked off a difficult period for the chipmaker. The company lost its historic lead in microprocessor technology amid a string of manufacturing setbacks, then ran out of production capacity to meet customer demand.
Intel denied discriminatory treatment in 2016 and again this fall in a new statement to The Oregonian, and said it is committed to a diverse workforce. The company did acknowledge the federal investigation and said it is working with the EEOC to resolve the case.
“Factors such as age, race, national origin, gender, immigration status, or other personal demographics were not part of the process when we determined which employees would be impacted,” Intel said in a statement. “We worked to help all affected employees transition with dignity and respect and have been participating in the investigation in good faith.”
Following the job cuts in 2015 and again in 2016, The Oregonian/OregonLive analyzed data the chipmaker provided to laid-off employees on the ages and roles of those who lost their jobs.
The investigation found people over 40 were two-and-a-half times more likely to lose their jobs in this spring's layoffs than Intel employees under 40. Nearly 1 in 10 workers over the age of 60 lost their jobs; for those under 40, fewer than 1 in 40 faced layoffs.
“It was really, I believe, a sloppy way of cutting costs – and a very illegal way, because you can’t do it with age discrimination,” said Kip Silverman, now 54, who lost his job as an Intel program manager in the first round of cuts in July 2015.
Despite two decades of experience in information technology, Silverman said it took him more than two years to find his next job: “Basically I had to liquidate my 401(k) to survive,” he said.
It confounds Silverman that Intel hasn’t been held accountable for what he considers to be bald-faced discrimination. Legal protections are useless, he said, if companies can hire lawyers to shield them.
“It just kind of shows how the entire system we work in is totally bonkers,” Silverman said.
Former Intel CEO Brian Krzanich led the largest job cuts in the company's history. He lost his own job last year.Photo by AFP via Getty Images
In 2016, with employees in an uproar over the layoffs, Intel CEO Krzanich admitted the cutbacks damaged the company’s relationship with its workers. He said the layoffs were too “harsh and quick.”
Krzanich himself ultimately lost his own job in 2018 after Intel’s board uncovered what it described as “a past consensual relationship with an Intel employee” in violation of corporate policy.
Not the first time
Since the EEOC won’t talk about its Intel investigation, it’s hard to tell what investigators are evaluating or why the investigation has stretched on for years.
Yet this isn’t the first time this has happened.
John Carpenter was a 53-year-old Intel manufacturing manager in 2006 when he lost his job in a prior round of layoffs. Carpenter, who worked in Silicon Valley, says Intel told him it was making productivity improvements – but replaced him with three other employees.
Many other laid off employees were also over 50, Carpenter said, and the layoff criteria appeared completely subjective. So he filed a complaint with the EEOC. And waited.
It took four years but the commission ultimately ruled in Carpenter’s favor, finding “reasonable cause” that the layoffs were age-related. What followed were months of mediation and negotiations. Intel and its attorneys showed up 20 minutes late to the first session, Carpenter recalls, and made him an offer “they thought would get me to shut up.”
Though Carpenter rejected Intel’s initial settlement, the talks continued. He said that after another six months, Intel made him an offer he could live with – provided he never disclose just what Intel paid.
It doesn’t surprise Carpenter that subsequent generations of laid off employees are going through the same thing, nor that it’s taking years to resolve.
“It’s going to be a slow process,” Carpenter said, “because I’m sure the EEOC receives thousands of complaints such as mine.”
Indeed, the EEOC receives an average of nearly 20,000 age discrimination complaints each year. The commission dismisses more than two-thirds of them with “no reasonable cause.”
A high bar
Advocates for older workers say the EEOC is too slow and bureaucratic in its investigations. And just as importantly, they argue, federal law makes it too hard for victims of age discrimination to seek redress in the courts.
They point to a 2009 Supreme Court case that established a new standard for older workers to prove discrimination – a higher bar than victims of racial or gender discrimination must meet.
In effect, older workers need “smoking gun evidence” that age was not just a contributing factor in negative treatment but that it was the decisive factor, according to Portland employment law attorney Matthew Ellis.
“That’s a level of proof that as a practical matter usually doesn’t exist,” he said. Ellis points to the case of Cottage Grove resident Alice Christianson as an example.
Christianson retired in 2003 but three years later decided to go back to work and sought a job with her former employer, the Oregon Department of Human Services. The department turned her away and Christianson, then 59, sued alleging she was a victim of discrimination.
The courts found a former supervisor, who interviewed Christianson for the job, asked what she “could possibly be thinking…(in) applying for a full-time job at this time in her life,” according to the court findings in the case.
That same supervisor gave the department a decidedly negative report on Christianson’s past performance, but later admitted her remarks “were overstated and spontaneous,” according to court records.
Still, Christianson lost her case. The trial court ruled “she did not prove that the decision-makers based their decision not to hire her on age,” according to an appeals court decision that upheld the original ruling.
“I know in my heart of hearts I’m not too old to do the job. I’m 72 right now. I just have this attitude that I’m never too old,” Christianson said. “If they’re not hiring older people they’re losing out. They’re losing out big time.”
Protections needed
Age discrimination is more than a legal issue, according to Ellis, the Portland attorney. He said it reflects broader social biases against older workers.
“On some level,” he said, “there’s sort of an expectation that you will get out of the way and make room for younger people.”
Society no longer tolerates stereotypes that enforce prejudices against women, ethnic or racial groups, or sexual identities. Yet Ellis said it’s still commonplace to accept degrading treatment of seniors.
Efforts are under way to establish new protections, in Salem and in Washington, D.C.
The Protecting Older Workers Against Discrimination Act, which passed a congressional committee early this year, would put age discrimination on an equal footing with other antidiscrimination statutes.
“Unfortunately, age discrimination in the workforce is still disturbingly pervasive and it is a significant factor in older workers’ long-term unemployment,” Rep. Bonamici said in a congressional hearing on discrimination she chaired last month.
In Oregon, a bill before the Legislature last session would require only that older workers show they were treated differently because of their age. Backers hope to revive the bill when lawmakers reconvene for February’s short session.
The proposed state legislation would preclude employers from asking job seekers about their age or graduation year before they’ve conducted an initial screening of the applicant’s suitability.
The bill would also enable employees to seek claims that show an employer’s employment practices “caused a disproportionate, adverse impact on a class of persons who are protected from unlawful discrimination.”
Justice denied
A bill like that one would potentially open up claims in future cases like Intel’s 2015 and 2016 layoffs, where the weight of the job cuts fell most heavily on older workers like Tsur, the former engineer who took his case directly to the EEOC’s San Francisco office.
For just over four years, Tsur has worked to bring attention to the age-discrimination claims he and his former colleagues brought against Intel. He’s worked with an almost single-minded zeal – becoming something of a gadfly as he pushed regulators, lawmakers and journalists to attend to the case.
Yet an assertive campaign like Tsur’s is the best way to ensure a case gets proper attention, according to Laurie McCann, senior attorney with the AARP in Washington, D.C.
“I always tell people to be the squeaky wheel,” she said. “Once you get an investigator assigned to your case, call them.”
The EEOC is overwhelmed and understaffed, she said. And the Trump administration has proposed further cuts in its budget.
“People’s concerns are valid that both lawsuits and investigations take a long time,” McCann said. “That’s a particularly troublesome fact…when you’re already old.”
EEOC Chairwoman Janet Dhillon testified at a House committee hearing in September: “We must be responsive to employees who raise discrimination claims.” The number of unresolved claims is down, but the number of complaints dismissed without investigation has fallen even faster.Photo via U.S. House Committee on Education and
The EEOC says it has reduced the number of outstanding private-sector discrimination cases from more than 76,000 in 2015 to fewer than 44,000 last year. The number of pending cases more than 500 days old fell by 43% in 2018, according to the agency.
While the volume of unresolved cases has dropped, skeptics note the EEOC is investigating fewer cases. A June analysis by The Center for Public Integrity found the number of cases the EEOC considers to be low-priority has more than doubled since 2008. Those low priority cases are closed without investigations.
One result, the analysis found, is that the number of complaints that end with a settlement or some other favorable result for workers has fallen from 13% to 8%.
The share of age-discrimination cases closed last year with a finding of “no reasonable cause” was at its highest point in at least two decades, at nearly 73%. And the monetary benefits received by complainants fell by 15% to $77 million, the lowest point since 2008.
In response to a request from The Oregonian/OregonLive, the EEOC was unable to provide any data on how many age-discrimination cases are like the Intel investigation, dragging on for multiple years.
Rep. Bonamici, whose committee oversees the EEOC, said she’s skeptical the agency can move more swiftly given budget cuts the administration proposes.
“How in the world could they be expediting things,” she asks, “if they’re getting less money and hire fewer people?”
-- Mike Rogoway | twitter: @rogoway | 503-294-7699