Tata Consultancy racial discrimination trial begins in California

Amid anti-immigrant sentiments, especially against foreign high-tech workers on H-1B visas, Tata Consultancy Services Ltd., one of India’s largest outsourcing companies, is on trial in a California court following a class-action lawsuit alleging racial discrimination that favors Indian and South Asian workers.

The suit covers about 1,000 former employees who are not Indians or South Asians and who lost their jobs at TCS offices in the U.S. It was originally filed in 2015 and an amended complaint was submitted to the California District court on Sept. 28.

The trial in the amended lawsuit began Nov. 5. The suit was brought by Steven Heldt, Brian Buchanan, and Christopher Slaight, who alleged that TCS restricted their responsibilities and fired them in violation of U.S. employment laws. The plaintiffs asked for a jury trial in the case.

It noted that while Tata is an Indian company that employs approximately 14,000 employees in the U.S. and while roughly 1 percent to 2 percent of the U.S. population is South Asian, approximately 95 percent of Tata’s U.S.-based workforce is South Asian, primarily from India.

“This grossly disproportionate workforce is the result of Tata’s intentional pattern and practice of employment discrimination against individuals who are not South Asian or who are not of Indian national origin, including discrimination in hiring, placement, and termination decisions,” the lawsuit alleged.

The company will need to explain “why engineers hired at its American outposts are 13 times as likely to be fired if they’re not South Asian,” said Bloomberg.com, which broke the news Nov. 5.

Mumbai-based TCS has denied all the allegations.

“TCS believes the allegations in this case are baseless and is confident that it will successfully defend itself,” a TCS spokesperson in New York, told India Abroad. “Our customers expect TCS to provide world-class talent for their technology needs. Our success is based on our ability to provide the best talent available, both in the U.S. and globally, based purely on the individual’s specialized experience, skills and fit for each client’s specific needs. TCS also strictly adheres to all federal and state equal employment opportunity laws and regulations.”

According to the lawsuit, recruiters within Tata’s United States operations have been explicitly instructed to focus primarily on hiring Indians for positions in the United States. Heldt, who is white, was allegedly told by a South Asian Tata manager after his removal that “he would have a hard time finding a new job within Tata because he was not South Asian,” the lawsuit alleged.

TCS denied any unlawful bias in its U.S. operations and said in court filings that the white employee leading the lawsuit was removed and ultimately terminated over “performance concerns.”

The trial brought under renewed focus the H-1B guest workers program that has come under fire from President Donald Trump for alleged abuse since his “Buy American, Hire American” executive order announced in April 2017. In recent months, Trump has sought to impose more stringent conditions on H-1B applicants seeking to enter the U.S. under foreign guest workers program.

Quoting Daniel Kotchen, the lead lawyer for the plaintiffs, the Bloomberg report said that “the aim of the litigation is to stop outsourcing firms from violating U.S. anti-discrimination laws. Kotchen’s firm is suing a half dozen other outsourcing companies over alleged discrimination, including Infosys and Wipro.”

Kotchen told the jury that local employees are being fired at a strikingly higher rate. “That’s who class members are, the victims of that practice. You’ll hear from defendants that Americans are stupid and lazy. The truth is that people are threatened with retaliation if they reported discrimination,” he told the jury, according to reports.

In an email to The Register.co, plaintiff’s attorney Daniel Low said that David Neumark, a professor of economics at University of California, Irvine, testified that there were “gross statistical disparities” in Tata’s terminations of South Asians versus non-South Asians, based on which he said the statistical evidence is “strongly consistent with discrimination” and that Tata favored H-1B visa workers over local employees.

The jury was expected to be shown, it said, statistical evidence that the odds of race and national origin not being a factor in TCS’s termination decisions are less than one in a billion. That’s because, 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, according to the complaint.

Throughout his employment, Heldt allegedly experienced substantial anti-American sentiment. For example, he alleged he was told by Tata management: “This is why I don’t like dealing with Americans,” and that he would have difficulty finding work within Tata because he is American and that TCS was not even looking for Americans to hire. He was ultimately terminated, the lawsuit said.

While TCS has won awards as a top employer in North America, the company faced a similar lawsuit brought by two Indian guest workers in California. The company, however, agreed to pay $29.75 million in 2013 to settle that class-action suit in the U.S. District Court of Northern California, brought by Gopi Vedachalam and Kangana Beri on behalf of themselves and all other employees in a similar situation.

The employees had accused TCS in 2006 of forcing all non-U.S.-citizen workers to sign over to the company their U.S. federal and state tax refund checks. The settlement was made without admitting any wrongdoing by TCS, the company said at that time in a statement.

News reports said that in the California trial, TCS’s lead attorney, Bernard Robert Given, will seek to convince the jury that “TCS is a diverse global company that rejects discrimination,” and that companies across the U.S. use similar hiring practices because of a well-documented labor shortage in the IT services industry.

Bloomberg said quoting Given as telling the jury that “a critical factor for us to discuss” is the historical and current IT shortage here in the U.S. “It’s EY. It’s Accenture. Google. All of these different companies have people come over on visas because there’s a shortage. An imperfection does not constitute intentional discrimination. Very, very, very big difference,” he said in the Bloomberg report.

Speaking to India Abroad, the TCS spokesperson said that the U.S. is the most important market for its business of TCS which is a global company which is the second largest employer of IT services talent in the U.S., hiring more than 17,000 US workers over the past five years.

“Skilled American employees are critical to our and the nation’s economic success, and we’ve been committed for many years to growing the next generation of talent by teaching more than one million local students the technical and digital skills they’ll need for 21st century careers,” the TCS spokesperson said.

“Besides, we have already trained 264,000 of our U.S. and global employees in new digital competencies and invested more than $3 billion in the U.S. over the past three years,” the spokesperson added.

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