U.S. tech workers suffered a startling federal court defeat when an Oakland, Calif., jury ruled that Tata Consultancy Services, a Mumbai-based corporate giant, didn’t discriminate against fired American citizen workers on the grounds that they weren’t South Asians.
The unanimous decision was surprising only in the sense that the plaintiffs had the facts on their side, but a total non-shocker since pro-American court rulings are few and far between. Workers who brought the class-action lawsuit alleged that Tata was 13-times more likely to fire non-South Asians than South Asians.
Going in to the trial, the plaintiffs’ case looked clear-cut. Former TCS employees claimed they were denied work opportunities and were eventually fired because of their race and national origin, i.e., they’re non-South Asians. According to a Law360 trial summary blog post, between 2011 and 2015, the year the suit was originally filed, TCS had fired or removed from coveted assignments 78 percent of its non-south Asian workers – referred to as “benched.” By comparison, only 22 percent of South Asians were benched.
Tata’s hiring record as it relates to H-1B reveals indisputable bias. Data shows that Tata is the number one India-based offshore outsourcing IT services provider, and a whopping 99.7 percent of its employees are Indians. On its face, the conclusion is obvious: Tata opts to hire Indian nationals above all others. In fact, a compelling argument can be made that Tata discriminates against all potential employees except South Asians.
Writing for the Economic Policy Institute, Howard University public policy associate professor and “Outsourcing America” author Ron Hira explained how Tata and others, namely Infosys, manipulate U.S. H-1B regulations to displace American engineers. They claim the H-1B is used: 1) to recruit and hire worldwide the best and brightest workers even though only 21 percent of Tata employees and 15 percent of Infosys employees have advanced degrees; 2) to fill skills gaps in the U.S. workforce and 3) as a way to retain talented foreign students with advanced degrees who received their education and training in the U.S., previous administrations’ favorite talking point deception.
In 2013, Tata paid $30 million to settle a wage theft dispute involving 13,000 foreign workers, and Infosys paid a record $34 million to settle a visa fraud case after it committed “systemic visa fraud and abuse of immigration processes.” Companies with an established pattern of malfeasance like Tata and Infosys should not be allowed to participate in U.S. temporary foreign worker programs like the H-1B.
Despite what looked to observers like an insurmountable mountain of evidence against their client TATA, defense lawyers from the powerful, deep-pocked Loeb & Loeb with its 400 lawyers in eight offices in the U.S. and Asia prevailed over its less well-manned opposing counsel Kotchen and Low.
Reading into the minds of the jurors who ruled for Tata is impossible. As lawyers are fond of saying, once a case reaches court any outcome is possible. But other major outsourcing companies whose business plans are identical to Tata’s shouldn’t rest easy. Kotchen and Low has filed class-action lawsuits against Infosys, Wipro, Tech Mahindra, HCL Technologies and Cognizant.
U.S. tech workers may have lost this round. But championship fights have 12 rounds, and Kotchen and Low has successes to point to. According to its website, the firm has won up to $220 million in settlements for its clients.