Lawsuit Against Disney Flips the Script to Fight H-1B Visa Abuse

By Michelle V. Rafter

A new lawsuit alleging Disney Corp. discriminated against laid-off employees because they’re U.S citizens is the latest example of a legal strategy being pursued on behalf of information technology workers who’ve lost jobs to foreigners brought here under a controversial guest worker visa program.

In mid-December, 30 former IT employees let go from Disney World in early 2015 filed a complaint alleging the entertainment and media giant discriminated against them based on their nation of origin and race. The lawsuit, first filed with the U.S. Equal Employment Opportunity Commission, and now in the U.S. District Court in Orlando, claims laid off employees were multiple races and alleges that Disney let them go “based solely on their national origin and race, replacing them with Indian nationals.”

It’s the first suit to claim such discrimination and the third brought by longtime employment lawyer and worker advocate Sara Blackwell against Disney, which caught the nation’s attention two years ago after laying off 250 IT employees, including some who had to train their foreign-born replacements.

Those replacements were all guest workers hired through Disney IT staffing partners using H-1B visas obtained in an annual lottery run by the U.S. Citizenship and Immigration Services agency. The visa program allows a company to bring highly skilled workers into the country if the organization can’t fill positions with U.S. employees.

The previous two lawsuits brought by former Disney employees were dismissed. In a statement, a Disney spokeswoman said that like those suits, “this latest lawsuit is nonsense and we will defend it vigorously.”

Since 2014, Disney has rehired more than 100 workers affected by the layoff, the majority into tech roles and nearly all at salaries equal to or higher than what they’d previously earned, the company said.

Ex-Disney IT employees aren’t the only people suing their former employers for discriminating against them because they’re U.S. citizens. In 2015, lawyers filed a class action lawsuit against India-based outsourcer Tata Consultancy Services Ltd. on behalf of a U.S.-born IT project manager. The man, who worked for Tata in California, maintains he was passed over for work because he wasn’t Southern Asian like 95 percent of the company’s workforce. The suit is pending.

In 2014, IT workers laid off from Harley-Davidson filed a federal class action lawsuit alleging the Wisconsin-based motorcycle company discriminated against American workers by replacing them with temporary workers from South Asia, according to USA Today. That suit is also pending.

Blackwell, who runs a nonprofit organization called Protect US Workers, said she’s filed similar discrimination suits on behalf of “hundreds” of laid-off Americans in multiple states, including some cases that have been dismissed and others that are pending.

To date, no H-1B-related suits based on nation of origin or race have been successful, according to Blackwell and other H-1B experts. “I do know it’s an uphill battle, but if you don’t try you definitely lose, but if you do, you might lose or win,” Blackwell said.

Workers’ rights advocates also have tried helping U.S. employees who’ve lost jobs to H-1B visa holders by suing companies for violating provisions of the guest-worker program. That tactic hasn’t proved successful either, said John Miano, an IT professional turned lawyer and coauthor of “Sold Out,” a 2015 book criticizing U.S. labor policies.

Lawsuits are one outgrowth of long-standing frustration with the existing H-1B visa program. Supporters say it should be expanded to allow even more foreign guest workers into the country to fill a shortage of U.S. workers with in-demand skills, especially in science, technology, engineering and math, otherwise known as STEM jobs. At the same time, critics such as Miano claim the U.S. tech industry exaggerates the STEM skills gap and uses erroneously inflated numbers and the H-1B program as a smokescreen to hire cheap labor. As the economy improved, H-1B visa applications have skyrocketed to the point the USCIS typically receives hundreds of thousands of applications beyond the 85,000 awarded annually, triggering the lottery.

In the past eight years, the Obama administration passed numerous employee-friendly regulations, including allowing spouses of H-1B visa holders to apply to work here. But the administration sidestepped recommending major H-1B program reforms, and bills to expand or tighten the current system have languished in Congress, according to Ron Hira, an associate political science professor at Howard University in Washington, D.C., and research associate at the Economic Policy Institute.

President-elect Donald Trump made immigration reform central to his presidential election campaign and recently recorded a video on his priorities for executive actions that included tackling visa abuses. But it remains to be seen what actions he’ll take and when. Trump can issue policy guidelines or executive actions, or use penalties to ensure companies follow existing foreign worker visa program regulations. But fully fixing the program will require changing the law, Hira said.

“He has the opportunity to do a lot,” Hira said. “What he does depends on whether he chooses to follow through on his promises and who he names to” relevant Labor Department positions.

Michelle V. Rafter is a Workforce contributing editor.