What is caste and caste discrimination?

“Caste” or a “caste system” is a social hierarchy passed down through families and can dictate an individual’s permissible professions as well as aspects of their social life, including whom they can marry.[1] It exists in a variety of ways, but for purposes of defining a legally protected class, it most directly relates to persons of South Asian descent. Importantly, however, an individual’s race or religion is not a caste, and caste and race/religion should not be equated or conflated.[2]

There are typically four main castes: (1) Brahmins (priests, academics); (2) Kshatriyas (rulers, administrators, warriors); (3) Vaishyas (artisans, tradesmen, farmers, merchants); and (4) Shudras (manual laborers). The caste system completely excludes Dalits (street cleaners, those who perform menial tasks).[3][4] As with other discriminatory practices among privileged classes, the most dominant caste (Brahmins) has the fewest number of individuals, while Dalits have the highest population. Dalits broadly encompass the most oppressed individuals, perceived as socially and intellectually inferior, subjected to the most exploitative jobs, and considered “untouchable” – an outdated and no longer commonly used description.[5]

Caste in the United States

In the United States, the 1965 Hart-Cellar Act revamped immigration policy and paved the way for increased Asian immigration with an express preference for professionals.[6] The dominant castes in South Asia, doctors, engineers, and those with privileged access to education and white-collar jobs, led to an overrepresentation of dominant castes in the United States as compared to the South Asian population at large.[7]

The professional successes of members of dominant castes in the U.S. workforce have unfortunately created conditions for bias and discrimination against vulnerable castes in hiring and promotion decisions.

Does current U.S. anti-discrimination law prohibit caste discrimination?

Under federal law, discrimination based on an “individual’s race, color, religion, sex, or national origin” is an unlawful employment practice. 42 U.S.C.S. § 2000e-2. Title VII details equal employment protections but does not mention caste specifically. Many states also have their own anti-discrimination laws which include additional protected characteristics.

City of Seattle Ordinance

The city of Seattle became the first U.S. jurisdiction to include caste as a protected class in ordinance CB12051, “An Ordinance Relating to Human Rights; Including Protections Against Discrimination Based on an Individual’s Caste,” amending its Human Rights Code on February 21, 2023. Seattle’s legislation defines caste as “a system of rigid social stratification characterized by hereditary status, endogamy, and social barriers sanctioned by custom, law, or religion. Under the Seattle ordinance, caste discrimination is “based on birth and descent, and occurs in the form of social segregation, physical and psychological abuse, and violence.”[8]

Effective March 25, 2023, caste discrimination is unlawful in Seattle. The law prohibits caste discrimination by both public and private employers within the City of Seattle. It does not affect Washington state outside of Seattle.

California Law

Fresno, California became the second city in the United States to include caste as a protected class in its municipal code. On September 28, 2033, the Fresno City Council unanimously passed a resolution including two new protected categories in its municipal code. Bill B-27 amended §§ 3-616, 7-1510, 9-234, and 9-915 of the Fresno Municipal Code, relating to human rights, including protections against discrimination based on an individual’s caste and indigeneity. B-27 defines caste as “a system of rigid social stratification characterized by hereditary status, endogamy, and social barriers sanctioned by custom, law, or religion” and caste discrimination as “based on birth and descent, and occurs in the form of social segregation, physical and psychological abuse, and violence.” The B-27 is awaiting mayoral approval.

The state of California also recently proposed and passed in the legislature a similar bill, SB 403, adding caste to protected classes under the state’s Fair Employment and Housing Act (the “FEHA”) and the Unruh Civil Rights Act. SB 403 underwent several revisions before landing on a version of the bill that removes references to Hinduism and India. SB 403 defined caste as “an individual’s perceived position in a system of social stratification on the basis of inherited status. A system of social stratification on the basis of inherited status may be characterized by factors that may include, but are not limited to, inability or restricted ability to alter inherited status; socially enforced restrictions on marriage, private and public segregation, and discrimination; and social exclusion on the basis of perceived status.”

Governor Newsom vetoed the bill on October 7, 2023. In his message, Governor Newsom declared the bill was “unnecessary,” stating, “California already prohibits discrimination based on sex, race, color, religion, ancestry, national origin, disability, gender identity, sexual orientation, and other characteristics, and state law specifies that these civil rights protections shall be liberally construed . . . discrimination based on caste is already prohibited under these existing categories . . .” However, ongoing California cases may shed light on the need for more narrowly defined protections.

In Department of Fair Emp’t & Hous. v. Cisco Sys., Inc., 82 Cal. App. 5th 93, 98 (2022), an employee of Cisco complained to Cisco that two supervisors denied him opportunities and disparaged him because, under the traditional caste system, he is from the lowest caste, whereas his supervisors are from the highest. The employee also complained that his supervisors retaliated against him after he complained about the discriminatory and unfair treatment. The California Civil Rights Division (formerly, the Department of Fair Employment and Housing or “DFEH”) brought a lawsuit on behalf of the employee for caste discrimination, and later voluntarily dismissed its case against the two individual defendant supervisors. The lawsuit continued against Cisco, with the parties attending a mediation conference on May 2, 2023. On June 8, 2023, the parties to the state court matter informed the court that their settlement efforts had reached an impasse. The state court scheduled a further case management conference for August 1, 2023.

Another more recent ongoing lawsuit involves California State University’s interim antidiscrimination policy. The policy included the term caste under prohibited discrimination. In Kumar v. Koester, No. 222CV07550RGKMAA, 2023 WL 4781492, at *1 (C.D. Cal. July 25, 2023), two professors allege that the inclusion of the term caste in the policy would target Indian Hindu practitioners specifically because the challenged policy did not define the word “caste”; the California Faculty Association and the California State Student Association define caste as a Hindu and Indian practice in their letters for support of the policy; and the ongoing Cisco case discusses caste in relation to India and Hinduism. On September 12, 2023, the defendants filed a motion for summary judgment. The trial is currently set for October 31, 2023.

Potential implications for including caste as a protected class.

How each jurisdiction ultimately defines caste in legislation will affect the resulting interpretations and application of the law. Broader definitions may lead to interpretations of caste as an equivalent to economic class, i.e. upper, middle, and lower class. Debates over the definition of caste continue regarding the intertwined nature of the history of caste with race, national origin, and religion. Forthcoming legislation will lay the groundwork for evolving definitions, protections, and remedies.

What does this mean for employers?

The passage of legislation in Seattle and Fresno followed by California’s failed adoption of SB 403 may prompt other municipalities and states to consider enacting similar legislation. States with a high population of South Asian employees, such as New York, New Jersey, Texas, and Illinois, will likely be among those states that follow Seattle and California’s lead. Employers in those states should consider:

• Adding caste to your nondiscrimination policy by including it in the list of prohibited forms of discrimination and harassment. Consider including a definition that does not limit caste discrimination to those individuals of Indian descent or those individuals of a particular religion or national origin.
• Include caste in your Equal Employment Opportunity Statement so employees are expressly covered.
• Building awareness by educating human resource professionals, managers, and employees about caste discrimination, and how to identify and respond to suspected incidents of caste discrimination or bias.
• Adding caste as a protected characteristic to employee and manager antidiscrimination and anti-harassment training programs.
• Consider investments or expansions in data collection efforts, complaint tracking, and/or retaining outside investigators who have expertise in this area when an issue arises.

[1] https://www.pewresearch.org/religion/2021/06/29/attitudes-about-caste/

[2] This article provides only an extremely high-level overview of the history and definitions of caste and caste discrimination, which are extremely complex and multifaceted subjects.

[3]https://humanrights.iowa.gov/sites/default/files/media/The%20Curse%20of%20the%20Caste%20System_final_7.pdf

[4] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5374864/

[5] https://www.seattletimes.com/seattle-news/how-indias-caste-system-manifests-in-seattle-area-workplaces-and-beyond/

[6] §203 of the Immigration and Nationality Act of 1965 prioritized visas “to qualified immigrants who are members of the professions, or who because of their exceptional ability in the sciences or the arts will substantially benefit prospectively the national economy, cultural interests, or welfare of the United States.” https://www.govinfo.gov/content/pkg/STATUTE-79/pdf/STATUTE-79-Pg911.pdf

[7] “Caste Discrimination Exists in the U.S., Too—But a Movement to Outlaw It Is Growing,” by Rohit Chopra and Ajantha Subramanian, Time Magazine, February 11, 2022.

[8] http://seattle.legistar.com/ViewReport.ashx?M=R&N=Master&GID=393&ID=6023482&GUID=39536EA0-BE3C-4EA2-A619-EFDE7693B17C&Extra=WithText&Title=Legislation+Details+(With+Text)

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