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One of the largest discrimination class actions ever. Probably the largest where US Citizens were the plaintiffs:

Jury Finds Cognizant Biased Against Non-Indian Workers
By Craig Clough · 2024-10-04 22:40:43 -0400 ·


A California federal jury found Friday that Cognizant Technologies engaged in a "pattern or practice" of intentional discrimination against a class of non-South Asian and non-Indian employees who were terminated, setting the stage for a second phase that will determine damages against the IT giant.

The jury's verdict was reached after about 90 minutes of deliberation Friday and comes after a previous trial resulted in a deadlocked jury.

The current trial included racially charged finger-pointing on both sides, with the class of about 2,000 U.S. workers alleging that Cognizant intentionally moved them to the company's "bench" and fired them while favoring South Asians and Indian nationals, particularly those with visas.

When a task ends or employees are removed from an assignment, the employees are "benched," the plaintiffs say. Cognizant terminates employees who have been on the bench for more than five weeks and have not found new jobs within the company.

The company said the case was a "political agenda (https://www.law360.com/employment-authority/articles/1882241)" against the H-1B visa program, of which Cognizant was the top user in the country during the roughly 10-year class period from 2013 through 2022.

"We're very excited that the jury made what we believe is the correct decision," Daniel Low of Kotchen & Low LLP (https://www.law360.com/firms/kotchen-low), who represents the class, told Law360 after the verdict was read. Counsel for Cognizant declined to comment.

The jury was not asked to determine any damages, but only whether the company engaged in discrimination against the class and whether the company should face punitive damages, which the jury found it should. Any possible compensatory or punitive damages will be determined during a second phase of the trial that will not involve the jury that reached Friday's verdict. 

Daniel Kotchen of Kotchen & Low LLP told Law360 the format of the next phase has yet to be determined. He also said U.S. Judge Dolly Gee will make a separate determination on the "disparate impact" of the company's actions based on the evidence presented at the trial, while the jury was focused on determining any "disparate treatment" of the class. 

During his closing argument, Kotchen repeatedly highlighted data and statistics presented by a class expert during the trial that found non-Indian and non-South Asians were 8.4 times more likely to be terminated from the bench than South Asians or Indians at the company, which was at times 80% South Asian or Indian.

The expert found the statistical chance of this occurring not due to discrimination was "less than one in a billion," Kotchen said before hammering Cognizant for not providing its own expert in the case to testify.

"How can you not rebut disparities like this?" Kotchen said.

Kotchen also reminded the jury that about 99% of all visa workers at the company during the class period were from India, which another class expert dubbed "very unusual."

"They can say it, they just can't show it," Kotchen said. "The proof is in the pudding."

Richard J. Doren of Gibson Dunn & Crutcher LLP (https://www.law360.com/firms/gibson-dunn), who represents Cognizant, accused the class during his closing argument of manipulating the data or only showing "snippets" of it, all in an effort to try and "piss you off."

About 60% of all H-1B visa holders in the U.S. come from India, and the company already has about 200,000 employees in the country, he said. Doren added that 1.5 million college graduates annually enter the workforce with IT degrees in India.

"Where would you have us go?" he asked.

Doren also argued that the class expert's "one in a billion" data conclusion was improper because it did not analyze how a worker's location preference affected their termination.

Workers who were willing to move anywhere were more likely to find work off the bench, and Indian immigrants with visas were simply more willing to move locations than their U.S. citizen counterparts, he said.

"Once someone has come 10,000 miles" for work they're likely to be willing to move anywhere in the U.S. to keep working, Doren said.

He also argued that the company's bench was not a legally required mechanism, but was created to help the company make more money by finding benched workers additional projects with the company's IT clients. The company would have no incentive to fire employable workers of any color, he said, because it would cost them money.

"The bench is where people go to make … money," Doren said. "The only color that matters is green."

The trial included what may be the first virtual juror (https://www.law360.com/employment-authority/articles/1883603) used in the Central District of California after the juror spent several days at home watching the trial on Zoom due to a positive COVID-19 diagnosis. The juror returned to the courtroom Thursday.

A previous jury deadlocked (https://www.law360.com/employment-authority/articles/1693091) last year. 

According to the suit, Cognizant contracts with companies to provide information technology services. Once it signs a contract with a client, it fills jobs to serve that client using internal and external candidates.

The class alleges that non-South Asian employees are disproportionately relegated to the bench, or are abruptly pushed out of projects that are reassigned to South Asian employees. The workers also say the company has a policy of favoring South Asian employees for whom it has secured H-1B visas.

Judge Gee's class certification order in 2022 said some of the workers' evidence indicated that Cognizant's business model calls for a preference for South Asian associates because they are less costly and more willing to relocate.

The class period spans from Sept. 8, 2013, through Oct. 27, 2022. 

The workers are represented by Daniel Low, Daniel Kotchen, Mark A. Hammervold and Lindsey Grunert of Kotchen & Low LLP.

Cognizant is represented by Karl G. Nelson, Theodore J. Boutrous Jr., Richard J. Doren, Katherine V.A. Smith, Lauren M. Blas, Michele L. Maryott, Elizabe
th A. Dooley and Matthew T. Sessions of Gibson Dunn & Crutcher LLP.

The case is Christy Palmer et al. v. 
Cognizant Technology Solutions Corp (https://www.law360.com/companies/cognizant-technology-solutions-corp)
. et al., case number 
2:17-cv-06848 (https://www.law360.com/employment-authority/cases/59bff482656b3a36ba000002)
, in the 
U.S. District Court for the Central District of California (https://www.law360.com/agencies/u-s-district-court-for-the-central-district-of-california)
.

--Editing by Peter Rozovsky.