Gov. Gavin Newsom vetoed a bill earlier this month that would have made California the first state to ban caste-based discrimination. Senate Bill No. 403 would have expanded the definition of “ancestry” under the California Fair Employment and Housing Act (FEHA), California Education Code and the Unruh Civil Rights Act (California Civil Code Section 51) to include “lineal descent, heritage, parentage, caste, or any inherited social status” as protected sub-classes. Newsom deemed the bill unnecessary, reasoning that discrimination based on caste is already prohibited under existing protected categories in California, such as race, color, religion, ancestry and national origin that are intended to be liberally construed.
The caste system is a strict social and religious hierarchy commonly associated with South Asian countries. A person is assigned at birth a place in the four-fold hierarchy and the placement gets passed down to children. Outside the system, and at the bottom of the hierarchy, are the Dalits, or “untouchables.” Dalits have been historically ostracized and discriminated against at the workplace, in housing and other public places.
Anti-caste discrimination laws already exist in several countries, including India, Nepal and Australia. Despite Newsom’s veto, there is a growing movement of anti-caste activism in the U.S. that seeks to ban caste discrimination nationwide. Seattle and Fresno, California, this year became the first U.S. cities to prohibit caste discrimination, amending their anti-discrimination laws to expressly include caste as a protected class. Seattle’s law specifically prohibits caste discrimination in employment, public places, housing and contracting, while Fresno added caste to its anti-discrimination bans in hiring and employment law. Additionally, several U.S. colleges and universities have added caste protections to their anti-discrimination policies, including California State University System, Brown University, Harvard and Colby College.
Opponents of the movement argue that laws prohibiting caste discrimination unfairly target and racially profile South Asians by codifying negative stereotypes and put businesses at risk of unnecessary or frivolous lawsuits. Nonetheless, anti-caste activist groups are continuing to push for laws banning caste discrimination across the country, fueled by reports of discrimination based on caste and recent lawsuits such as Cal Dept. of Fair Emp’t and Hous. v. Cisco Systems, Inc., et. al, No. 20CV372366 (Cal. Super. Ct. Oct. 16, 2020) suggesting that many people in the U.S. continue to experience caste-based discrimination.
In Cisco Systems, the California Department of Fair Employment and Housing (DFEH) sued Cisco for employment discrimination based on caste after two upper-caste Indian managers were accused of discriminating against a Dalit engineer. The managers were also named as individual defendants in the suit. Cisco claimed the Dalit engineer was not a part of a protected class and unsuccessfully tried to compel arbitration. In April 2023, DFEH dismissed the individual defendants from the case, but is still investigating Cisco and the case remains pending.
Employer Takeaways
The increasing number of laws barring case discrimination should serve as a reminder to employers that the characteristics protected from discrimination under state and local law are often more expansive than those protected under federal law. Employers operating in jurisdictions affected by this new wave of caste-related legislation, including Fresno and Seattle, should review their existing anti-discrimination policies to ensure the policies are being enforced in accordance with state and local law, and that management is trained accordingly.
Even in jurisdictions without laws barring caste discrimination, employers might consider proactively updating their employee handbooks to explicitly include “caste” as a protected category given recent activism and the changing legal landscape. Stay tuned for more updates as other jurisdictions consider bans on caste discrimination.
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