Three American workers have sued the huge Indian outsourcing firm Cognizant for racial discrimination, contending that it illegally favors people from South Asia, often on H-1B visas, in all of its personnel decisions.
This has David-vs.-Goliath overtones; three rank-and-file workers taking on a multi-national corporation with annual revenues, at last count, reaching $14.81 billion a year and a small law firm in Washington's Adams-Morgan neighborhood (where I used to live) grappling with the massive Gibson Dunn and Crutcher, with its 20 law offices spread over four continents. The plaintiffs' firm is Kotchen and Low LLP.
And though it does not use the term "reverse discrimination", this is a suit by two Anglo-Americans (my term) and one Hispanic American in which the Caucasians are the discriminated-against underdogs, and those favored are from India.
Further, the trio is attacking a large-scale foreign worker program that has been allowed to grow by leaps and bounds by the federal government, under both Republican and Democratic administrations. The odds are remarkable.
Gibson Dunn's defense (of its client's personnel practices) opens this way:
Count I fails to state a claim because the harm alleged is not cognizable under Section 1981. Section 1981 prohibits discrimination on the basis of race, but Plaintiff's factual allegations, on their face, plainly pertain to a claim of discrimination based on national origin — not race.
Section 1981 is part of the Civil Rights Act of 1866, outlawing racial discrimination in employment.
It is as if the defendant in a criminal trial said: "Judge, I did not attack him with an axe, as charged, I had a machete in my hands." (I also wonder about the, perhaps unconscious, pun on the client's name.) The full set of trial documents can be seen at case 2:17-cv-06848-DMG-PLA in the electronic PACER files.
The plaintiffs responded that it was, in fact, racial discrimination. As we pointed out a couple of years ago, Cognizant has a record, within the H-1B program, of hiring 99.6 percent of its temporary workers from India. The other big firms have comparable records, but none of the others reach that percentage.
The complaint, in federal district court in California, is a class action suit filed on behalf of those discriminated against, seeking damages for the workers and for changes in Cognizant's policies.
Cognizant is in what might be called the rent-a-programmer business. In 2016, the company had the largest number of approved H-1B petitions in the country, with a total, including new and extended visas, of 21,459 that year.
The three workers said that Cognizant had four inter-locking personnel policies that led to routine discrimination against non-South Asians. These included (1) widespread use of H-1B visas in the hiring process; (2) favoritism toward hiring people of South Asian descent who are in this country and can work without the H-1B visa; (3) a discriminatory promotion policy that favors South Asians; and (4) a termination policy that also works against non-South Asians.
As we have noted earlier, the huge Indian outsourcing companies' discriminatory practices are rather narrower than the plaintiffs charged; they are in favor of young, male, Indian nationals from four mostly Hindu states in the south of the nation. They are, in short, a very specific subset of South Asians.
DMG. The careful reader will have noted earlier that part of the number for the case is "DMG". That stand for Dolly M. Gee, the federal judge hearing the case (the PLA in the case number is for the magistrate judge). Judge Gee is more than a set of initials, she is reckoned by many to be one of the most migrant-favorable federal district court judges in the land, and she is sitting within the borders of the liberal Ninth Circuit. My colleague, Dan Cadman, reported on her strongly worded decision against the government's alien detention policies in an earlier posting.
Let's assume that Judge Gee will do what she thinks is right — the case is ripe for judgment at this point. However, she must be inwardly torn about the case; should she stand with the under-dogs, as she has often in the past, even though the under-dogs are U.S. citizens in this case? Or should she support the interests of the H1-B migrants, even though the statistics scream that they are the beneficiaries of favorable discrimination?
Judge Gee is the daughter of Cantonese immigrants; she is a Californian who was nominated to the bench by President Clinton, but the nomination was not confirmed; subsequently President Obama nominated her and she was confirmed the second time around.
Should she rule against Cognizant, and were the ruling to be upheld on appeal (probably a year or two from now), it would revolutionize the way H-1B workers are selected.
And though Cognizant and its lawyers probably don't think this way, if H-1B were to be cleansed of its current, total tolerance of discrimination, it would help preserve that program, despite the way it deprives hundreds of thousands of Americans of middle-class jobs.
Let's see what she decides.