A decision has been rendered in the so-called “reverse discrimination” Handloser v. HCL Technologies case in which this India-based company faced a class-action lawsuit brought by plaintiffs alleging unfair hiring practices favoring foreign India visa-holders over US citizens.
It was decided the plaintiffs did not meet the criteria for the basis of their suit. However, it must be noted this does not mean the company is beyond reproach and the case could, and might, be further appealed in the future.
This case is currently noteworthy to future employers potentially named in such so-called “reverse discrimination” suits for two primary reasons.
First, it signals that a prior U.S. Supreme Court’s landmark Wal-Mart v. Dukes decision from 2011, to be further explained establishing criteria for class-action status requirements, stands and will remain a primary defense in major employment “reverse discrimination” class-action suits. This means when plaintiffs attempt to increase the size of their cases using thousands of putative class-action members who were allegedly harmed by thousands of managers the accused employers can point to this prior Wal-Mart v. Dukes case to illustrate why class treatment is not appropriate in these cases.
Second, businesses, especially in the technology sector, defending so-called “reverse discrimination” charges alleging foreign visa-holders being given preferential treatment over US citizens, can now use this current decision in the event they are faced with such similar class-action claims.
In this particular case, the defendant was an India consulting and information technology company, with its headquarters in Noida, India, and its US headquarters in Sunnyvale, Ca. Plaintiffs were a group of US job applicants who did not obtain positions, alleging during the hiring process that the company screened applicants through a “culture-fit interview” process resulting in giving preferential hiring treatment to foreign visa-holders over U.S. citizens.
According to the plaintiffs, the “culture-fit interview” process was a pretext for screening out non-Indian US citizen-candidates. The plaintiffs further alleged that the company employed a uniform company-wide policy prioritizing candidates for open on-site positions giving first consideration for open positions to visa-holding India candidates and only considering US-citizen candidates if no visa-holding India candidates were available.
Plaintiffs then filed a lawsuit against the company on March 7, 2019, alleging three claims, including: discriminatory treatment on the basis of race and citizenship in violation US code 1981; 2) discriminatory treatment on the basis of race and national origin in violation of U.S code 2000; and 3) discriminatory impact on the basis of race and national origin in violation of U.S. code 2000.
The problem for the plaintiffs came, however, when they then moved for class-action certification, seeking to represent a large class comprised of, “[a]ll individuals who are not of South Asian race, or Indian national origin, or visa holders who applied for positions with (or within) the company in the U.S. and were not hired.”
The court then ultimately decided to deny the plaintiffs’ motion for class-action certification stating that plaintiffs failed to establish class-action “commonality” under the previously mentioned Wal-Mart Stores v. Dukes case (2011) explaining that in the context of an employment discrimination class-action case the plaintiffs seeking the class-action status involving a large number of individual employment decisions must first establish “some glue holding the alleged reasons for all those decisions together” in order to satisfy the class-action “commonality” requirement
The plaintiffs, however, in turn, argued that they had indeed established “commonality” for their putative-class status for both their discriminatory treatment and impact claims by alleging that: 1) the company had a company-wide policy of prioritizing visa-holding India candidates when filling open US positions; 2) when hiring US job-applicants the company had a company-wide policy of screening out non-India US-citizen candidates through its “culture fit” interview process; and 3) gross statistical disparities evidenced this systematic discrimination at the company.
The court, though, rejected plaintiffs’ arguments and held that they did not establish “commonality” for at least seven reasons including: 1) over 1,000 job requests during the proposed class-action period explicitly excluded visa-holding applicants from consideration including some that were required by law to actually in fact be filled by a US citizen or green-card holder; (2) for roughly 50% of job requests the company did not fill the open position with any candidates because the client withdrew the job request, the client filled the job request with its own direct-applicant, or the position was filled by a competitor; 3) there were reasons that job candidates were not hired that were independent of company’s alleged discriminatory hiring practices; 4) the plaintiffs failed to provide the aforementioned requisite “glue” because company’s hiring processes took different forms for job candidates depending on the positions for which they applied and the different hiring managers involved; 5) the company utilized roughly 1,800 different hiring managers across the country each of whom was empowered with the discretion to make staffing and hiring decisions; 6) employment decisions took place in 47 states involving roughly 16,000 job searches, and concerned approximately 200 job types; and lastly, 7) the plaintiffs failed to establish that company’s employment policies and procedures following a “common [discriminatory] direction” from the company’s management.