Debate is swirling in California over a caste bias bill awaiting the governor’s review, as this form of discrimination gains new attention across the country in legislatures, courtrooms, and even at the American Bar Association.
Sacramento is the hub of the action after California legislators passed the nation’s first state measure (SB 403) explicitly banning caste bias in the workplace, housing, schools, and public places.
A signature from Gov. Gavin Newsom (D) would be a milestone for advocates, but a blow to opponents within the state’s South Asian population who have said the bill would have downstream anti-Hindu effects. Newsom hasn’t taken a position on the bill publicly, and has until Oct 14 to sign or veto it.
US discrimination law is still at the early stages of contemplating how to address caste bias, an issue that isn’t well understood in the states. Seattle became the first US city to add caste to its nondiscrimination ordinance earlier this year, and major universities including Brown, California State, and Harvard have added caste bias provisions to their diversity policies.
ABA delegates passed a resolution in August encouraging the expansion of state and federal anti-bias laws to explicitly include caste.
Proponents of SB 403 have been vocal in their support, with a coalition of advocates declaring a hunger strike until Newsom acts.
People from Dalit backgrounds—considered the lowest rung of India’s caste system—tend to hide their backgrounds and even their last names in their US workplaces and social lives for fear of discrimination, said Kiran Kaur Gill, executive director of the Sikh American Legal Defense and Education Fund, which supports the California bill.
Caste discrimination “could look like addressing somebody in language that is very derogatory. It could look like not wanting to share certain things. It could look like exclusion,” said Gill. “In some cases in work, it could look like not promoting somebody because of their background.”
California Debate
Strict social hierarchies such as caste exist in many countries around the world, affecting more than 1 billion people by some estimates.
But for many the term “caste” specifically brings to mind South Asian culture, particularly Hinduism in India. The Hindu American Foundation says adding it to anti-discrimination laws would promote bigotry and negative stereotypes against people of Indian descent, as they will be assumed to be not only the victims but also the perpetrators.
“It’s a false assumption that every South Asian recognizes a caste identity or even identifies by caste,” said Suhag A. Shukla, executive director of the Hindu American Foundation, which has called for Newsom to veto SB 403.
“You won’t be seeing caste claims against anyone but South Asians,” she said. “There’s a suggestion there that this community was acting so poorly that we needed to create a policy around them.”
Some legal scholars argue existing anti-discrimination laws already cover caste without naming it, as protected traits such as race, national origin, and religion could include caste bias.
But there’s been little if any case law to affirm those caste bias protections, and the US Equal Employment Opportunity Commission has resisted calls from advocacy groups to opine on whether Title VII of the 1964 Civil Rights Act encompasses caste.
The language of SB 403 states it would clarify existing law and that it shouldn’t be read to suggest the state’s existing civil rights laws don’t cover caste. California law already includes “ancestry” among its protected traits, and SB 403 would define ancestry to include “lineal descent, heritage, parentage, caste, or any inherited social status.”
The issue has bubbled up in California’s tech industry, notably in a discrimination lawsuit against
Cisco Case
The pending lawsuit against Cisco brought by California’s civil rights agency could help define the scope of California law.
The state alleges that an unnamed “John Doe” engineer who identifies as Dalit faced discrimination from his upper-caste supervisors, such as being excluded from important projects and denied a raise that his peers received. Cisco has disputed these claims.
The state agency initially sued Cisco and two supervisors in federal court in June 2020 before voluntarily dismissing that case and refiling in state court. It dropped the supervisors from the case earlier this year but continued litigating against the company.
The way California’s Civil Rights Department approached the Cisco case reinforces the concerns about caste discrimination laws being weaponized against Hindus, Suhag said.
The Hindu American Foundation has sued the Civil Rights Department in federal court, accusing it of violating the First Amendment rights of South-Asian Americans by attempting to define Hinduism in the court record as imposing caste hierarchy.
The federal court dismissed the case Aug. 31 for lack of standing but allowed the foundation to amend its complaint.
The caste system isn’t a legitimate part of Hindu beliefs or practices, the foundation said in its Sept. 21 amended complaint.
Since the state first filed its lawsuit, the foundation has fielded inquiries from Hindu tech workers seeking advice on “increased hostility resulting from xenophobic comments and questions by non-Indian origin colleagues or supervisors at their places of work about their religion, caste identities and/or caste practices,” according to the foundation’s lawsuit.
The state agency disagreed that its lawsuit promoted negative stereotypes about Hindus.
“The Department makes just one specific statement about Hinduism in its 19-page complaint against Cisco,” the civil rights department said in its motion to dismiss the foundation’s lawsuit, noting that statement was a paraphrase of Human Rights Watch report findings. “The Department’s complaint links Doe’s caste status to multiple identity vectors, not just religion.”
Bar Association Backing
As the issue percolates in court, the ABA is among the organizations calling for writing caste explicitly into anti-discrimination laws.
“You could argue this is already covered just the same way you could argue we didn’t need a special pregnancy discrimination law because it’s gender discrimination,” said Mark Schickman, a California labor and employment lawyer who presented the resolution to the ABA’s annual House of Delegates meeting.
“But it’s important that it’s clarified that this is a specific form of discrimination that deserves its own protection,” he said.
Wendy Shiba, a delegate to the ABA meeting from the National Asian Pacific American Bar Association, also supported the resolution and said she does not believe protections for caste already exist.
“Current anti-discrimination laws with protected characteristics such as race and national origin do not cover caste, which is a distinct characteristic,” Shiba told the ABA delegates in August, “but the very nature of caste discrimination is equally invidious.”
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