Discrimination by National Origin Challenges H-1B (TFW) Use


Some U.S. IT workers who have been replaced with H-1B contractors are alleging discrimination and are going to court. They are doing so in increasing numbers.

There are at least seven IT workers at Disney who are pursuing, or plan to pursue, federal and state discrimination administrative complaints over their layoffs. Another Disney worker, still employed by the firm, has filed a state administrative discrimination complaint in California. These complaints are a first step to litigation.

Separately, there are ongoing court cases alleging discrimination against two of the largest India-based IT services firms, Infosys and Tata Consultancy Services. The federal judges in each of cases have given a green light for the plaintiffs to proceed after rejecting dismissal efforts.

There may be federal interest in examining this issue. The U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices was asked by 10 U.S. senators in April to examine the IT layoffs at Southern California Edison (SCE) and to determine whether SCE or its contractors were “engaged in prohibited citizenship status discrimination.”

What’s being challenged, in sum, is the job replacement system created by the H-1B program. U.S. IT workers, as a condition for their severance, are being made to train H-1B visa-holding contractor replacements to take over their jobs.

The contractors often work for IT services firms that employ large numbers of H-1B workers. Most of these workers are from India and regional countries. This practice of replacing U.S. workers with foreign workers constitutes national origin discrimination, say its critics.

The court case against Tata, whose plaintiffs include a former SCE employee, alleges that some 95% of its employees are South Asian or mostly Indian. Tata has called the allegations baseless.

The Disney IT workers “were terminated because they were American citizens and all their replacements were foreign-born Indians,” said Sara Blackwell, a Florida attorney, who is representing seven of the Disney workers at its parks and resort division. She has set up an organization to challenge the practice. Other discrimination claims, including age and disability, will be made as well. Those complaints are being filed with the U.S. Equal Opportunity Commission, which sees if a settlement is possible prior to any lawsuit.

Disney did not respond immediately for comment.