Court case offers a peek at how H-1B-fueled discrimination works
- 11 July, 2014 07:10
The passage of the Affordable Care Act brought with it a burst of IT spending and hiring. The District of Columbia, for instance, hired offshore outsourcing firm Infosys for $49.5 million to build its Healthcare Exchange.
The India-based Infosys brought in H-1B visa holders to work on the government project. And of the approximately 100 Infosys employees working on the healthcare project, only three were American, according to a civil lawsuit filed in federal court.
The IT professional making the claim, Layla Bolten, has a degree in computer science and has been in IT since 1996. An experienced tester, which is what she was hired for, Bolten often helped less-experienced staff.
But the lawsuit contends Bolten was harassed because she was not Indian and excluded from work conversations by supervisors who spoke Hindi. People with less experience were promoted over her, and she eventually quit.
Bolten is one of four IT workers from around the country suing Infosys for "ongoing national origin and race discrimination." The lawsuit claims that "roughly 90%" of Infosys workforce is South Asian, the result of "intentional employment discrimination."
Infosys has filed a motion for dismissal on a number of technical and legal claims. The case awaits a ruling on that motion from a judge in the Eastern District of Wisconsin, where the suit was filed late last year.
Infosys officials were asked for comment beyond the dismissal request but did not immediately respond.
Whether this lawsuit is eventually dismissed, settled out of court, or goes to trial, is another matter. But the case offers insight into a contentious issue that is central to the ongoing H-1B debate.
Discrimination by race, age and sex is the leading criticism leveled at the H-1B visa program. The plaintiffs in this particular case are only making a claim of discrimination by national origin, and their case presents new facts to support itself.
The U.S. Equal Employment Opportunity Commission collects workplace data from employers with more than 100 employees. This data is kept confidential, unless it comes out in a court case or is voluntarily disclosed.
While few companies disclose this information, some tech companies are starting to do so. In May, Google released its workplace data, which is otherwise known as the Employer Information Report or EEO-1. It showed that 30% of its employees are women, 61% are white, 30% are Asian, 4% are of two or more races, 3% are Hispanic, and 2% are black.
When it released the data, Google said in a statement: "We're not where we want to be when it comes to diversity. And it is hard to address these kinds of challenges if you're not prepared to discuss them openly, and with the facts."
Infosys does not voluntarily disclose its diversity data for its U.S. workforce.
But the plaintiffs in the lawsuit were able to this get federal demographic data. Infosys was required to report the demographic make-up of any location at which it employs at least 50 people, according to the lawsuit. In 2012, there were 59 such Infosys sites across the U.S. that met that threshold. The lawsuit said that for more one third of the sites - 21 -- Infosys reported that 100% of the employees are Asian. For 53 of the 59 sites, at least 94.5% of the employees were Asian. The lowest percentage of Asian employees at any site was 73.8%.
Infosys is among the top three users of the H-1B visa, and H-1B workers are predominately from India. Approximately 58% of all the H-1B petitions approved in 2011 were from workers born in India; in 2012, that figure was 64%, according to U.S. Citizenship and Immigration Service (USCIS) data.
Offshore firms mostly hire H-1B workers from India, according to data obtained by Ron Hira, an assistant professor of public policy at the Rochester Institute of Technology in New York. His data shows that 97% of the H-1B visa workers hired by Infosys were from India. Other large offshore firms had similarly high percentages.
While age discrimination is not part of this lawsuit, the USCIS data helps to illustrate why critics believe H-1B workers are used to replace older workers. Of all the H-1B petitions approved in 2012, 72% were for workers between the ages of 25 and 34; in 2011, that figure was even higher, 74%.
There is no available government data on the sex of H-1B workers, but the IEEE-USA estimates that at least 80% of H-1B workers are males.
It is a fair question to ask, as the lawsuit contends, why Infosys only had three American workers working on the District of Columbia's healthcare exchange. The Washington D.C. area does not lack people with tech skills. Of the largest metropolitan areas in the U.S., Washington has the most people with advanced degrees, (22.9%) and bachelor degrees (48%).
The District's government has made hiring locally a priority. Several District officials were contacted for comment about whether the apparent use of a large number of foreign workers on a government contract is in line with hiring goals, but none responded.
Patrick Thibodeau covers cloud computing and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov or subscribe to Patrick's RSS feed. His e-mail address is email@example.com.
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