Tata Consultancy Services is known to runners as the sponsor of the New York City Marathon. To others it is Indian outsourcing giant built on the back of the H-1B temporary visa program. What matters, however, is whether the members of a California jury believe Tata is guilty of discriminating against American and non-Indian workers in favor of South Asians.
That is the question at the heart of a class action trial that kicked off in early November. One of almost a dozen lawsuits filed by Kotchen & Low, a small Washington, D.C. law firm, the complaint involves claims by former Tata employees who claim they were placed in unallocated or “benched” status and then fired based on race or national origin.
The suit further alleges that despite have the required skills and experience, Tata demonstrated discriminatory business practices by favoring South Asians (as they are characterized in the lawsuit) and H-1B visa holders from India.
The outcome of this case could have implications that extend beyond the Oakland courtroom. If Tata is found guilty of discrimination, they will be forced to make substantial changes to their business practices and the decision could have a deterrent effect on other companies that exploit the loopholes in the H-1B program. The verdict could also impact efforts by some in Congress to lift the annual caps on the program.
According to the complaint, South Asians make up 1 to 2 percent of the United States population, but approximately 95 percent of Tata’s United States-based workforce is South Asian (primarily from India).
“This grossly disproportionate workforce demonstrates an intentional pattern and practice of discrimination, and cannot be explained by coincidence or business necessity,” the suit asserts.
Tata must explain why, since 2011, the company fired 12.6 percent of its non-South Asian workers in the U.S., compared with less than 1 percent of its South Asian employees. As plaintiffs’ attorney Daniel Kotchen noted, the odds race and national origin were not factors in Tata’s business practices is less than a one in a billion.
Tata’s lead attorney, Bernard Robert Given, has tried to convince the jury that his client’s business practices reflect a labor shortage in the IT services industry in the U.S., according to Bloomberg.
Given also claimed the data shows most of the non-South Asians were terminated “because they were difficult to work with, refused to relocate or didn’t want to commute to new job sites,” according to Law360.
Tata Consultancy is now the largest H-1B user. The latest Department of Labor data show that in FY2018, Tata received 20,755 – H-1B specialty occupation certifications. Conversely, Tata recruited just 12,500 U.S. workers over the last five years, according to Bloomberg Law.