Publication

On February 21, 2023, Seattle city council members, in a 6-1 vote, passed CB 120511, banning caste discrimination.[1] By doing so, Seattle became the first U.S. city to prohibit discrimination based on caste in employment, housing, and public spaces. The ordinance defines “caste” as “a system of rigid social stratification characterized by hereditary status, endogamy, and social barriers sanctioned by custom, law, or religion.”[2] The legislation allows those who have suffered caste-based discrimination to pursue a legal remedy in court against an employer or co-worker. Under the ordinance, the Seattle Office for Civil Rights will investigate complaints filed with the agency.  The findings of the agency may be relied upon in the civil action.  While the focus has been on the South Asian community, the anti-discrimination ordinance would also apply to other caste-based systems including, the Burakumin of Japan, and Bantu and Yibir, Gabooye and Tumal communities of Somalia.[3]

What is the Caste System?

Caste is a hierarchical social system that dates back over 3000 years and is based on the notions of purity and pollution. The system is primarily associated with the South Asian region, where its roots stem from Hinduism. In this particular system, people are assigned to a specific class at birth based on their ancestry. There are five main class groups with thousands of subcategories.  Dalits are considered the lowest of the hierarchy. The anti-discrimination ordinance passed last week in Seattle protects the Dalits and other lower caste groups.  

Why is Caste Discrimination an Issue in the United States?

In the United States, South Asians are one of the largest immigrant groups. While this group does not consist entirely of individuals assigned to a caste, many immigrants fall within this group.  For example, proponents of the ordinance argued that in Seattle, the South Asian community consist of 150,000 people and members of a caste dominate the population. Overall, eighty percent of the South Asian population in America is a member of a caste, whereas only one-tenth of individuals in South Asia are part of a caste.    

In 1948, after India attained independence, the new constitution banned the caste system, but even after so many years, caste-based prejudice remains a current problem in South Asia.  South Asian immigrants report that this prejudice has followed them to the United States and that they live as a “minority within a minority.” According to a 2016 survey of caste in the United States, conducted by a Dalit advocacy organization, Equality Labs, one in three Dalit students reported being discriminated against during their education; two in three Dalits reported being treated unfairly at their workplace; and 60% of Dalits reported experiencing caste-based derogatory comments.[4]

Those who opposed the ordinance, including the Hindu American Foundation, are worried that the ban is “based on falsehoods and unproven allegations” because proponents relied on inaccurate studies and data.[5] To support this argument, the opponents referenced a footnote in a Carnegie Endowment for International Peace caste-based study. This footnote indicates that a caste study performed by Equality Labs was based on a non-representative “snowball sampling” method to recruit respondents and that those respondents who did not identify a caste were excluded from the data.[6] The footnote concluded that it was likely that the sample by Equality Labs “did not fully represent the South Asian American population and could skew in favor of those who have strong views about caste.”[7]  Accordingly, the existence of caste discrimination and “its precise extent and intensity in the United States can be contested.”[8] 

Opponents also argued that there is no substantiated evidence of discrimination in Seattle that traces back to caste-based prejudice, and the ordinance unfairly singles out and places additional scrutiny and targets on ethnic minorities. Opponents were concerned that these targets could dissuade employers from hiring South Asians and Hindus. Lastly, opponents raised concerns regarding the complexity of the caste system and inquired how an investigator from the Seattle Office of Civil Rights is supposed to understand the nuances amongst the thousands of castes when adjudicating the complaints and determining an individual’s caste. 

Anti-Caste Movement in the United States

While Seattle may be the first U.S. city to ban caste discrimination, it is not alone in taking steps to acknowledge bias and discrimination of those in the caste system. The anti-caste movement has a strong presence in Silicon Valley where not only many South Asians secure jobs but the technology companies also maintain outposts in India. In addition, some high-level executives were born and raised in India, including the CEO of Google, who is a member of the Brahmin caste.[9]  Alphabet Workers Union is pressuring Google to formally ban caste discrimination, and workers are speaking out publicly to the media, including a group of 30 women engineers who shared their experience of discrimination to the Washington Post.[10]

Recently, caste discrimination lawsuits have been filed with one case in particular being followed closely. In 2020, the California Department of Fair Employment and Housing filed a lawsuit in state court against Cisco Systems, Inc. The premise of the suit is based on allegations that a Dalit engineer was targeted by two dominant-caste managers and was denied professional opportunities because of his background.[11]  The Fair Employment and Housing Department is relying on California law that prohibits discrimination on the basis of ancestry.  The case is currently pending in California State Court. Similarly, in 2021, a complaint was filed in New Jersey federal court, which accused a prominent Hindu sect that operated a temple of forcing hundreds of low caste workers to perform hard labor for little pay and under unsafe working conditions.[12]

At this time, the Equal Employment Opportunity Commission (“EEOC”) has remained silent on caste-based discrimination. Some argue that national origin is a protected class including ancestry, and a tie to a particular nation-state is not necessary to prevail on a national origin claim. 

Finally, several universities have created policies that prohibit discrimination based on ones caste, including California State University, Brandeis University, and Brown University. Those against these policies argue that: CSU’s policy resulted in a lawsuit filed against the university on First Amendment grounds; Brown University acknowledged, “existing laws are sufficient to handle discrimination based on [c]aste;” and Brandeis University has not recorded one case of caste-based discrimination in the three years since caste was added as a protected category.[13]           

Impact on Employers                             

Supporters hope that the passing of the ordinance will raise awareness for this form of bias and discrimination.  For employers, many questions remain.  Specifically, how does a company know if caste-based discrimination is taking place?  Workplace caste discrimination can be demonstrated in many forms and is not as obvious as race, color, or complexion. Someone’s caste can be identified in subtle ways, through surnames, the municipality somebody is from, the school the employee attended, or the school the employee’s parents attended.[14] Another indication of a lower caste is a families’ low income and the performance of menial jobs such as hard manual labor.[15]

Seattle employers should ensure questions that could result in the disclosure of the above information are not asked during a potential employee’s interview. Supervisors and managers should also educate on caste-based discrimination, specifically how to recognize caste-based discrimination and prejudices.  Finally, Seattle employers should review and update their policies to ensure compliance with the ordinance, which prohibits employers from discriminating against individuals based on caste with respect to all aspects of employment.

Please reach out to the Gordon & Rees Employment Law team for further guidance and recommendations.