Newsom Deems Caste Bias Already Illegal, But Case Law Is Scarce

Gov. Gavin Newsom’s veto of a bill banning caste discrimination leaves open the unsettled question over whether state and federal law already cover bias based on social hierarchy.

When Newsom (D) killed the bill (SB 403) Oct. 7 that would have made California the first state to explicitly outlaw caste discrimination, he said it was unnecessary because caste is already covered by other protected categories listed in the state’s anti-bias laws.

Case law on the issue is limited and so clarification by state and federal lawmakers would be helpful, some attorneys and law professors say, even though they agree California and federal law likely already cover caste without specifically naming it.

“My scholarship suggests that is correct. Both the California Unruh Act and federal law, specifically Title VII, cover caste discrimination and prohibit it,” said Guha Krishnamurthi, a law professor at the University of Maryland who has researched caste bias.

But in the few recent lawsuits that have raised caste bias allegations, including the California Civil Rights Department’s pending litigation against Cisco Systems Inc., there’s been lingering uncertainty about the extent to which caste is covered by anti-bias laws. Employers that face lawsuits are prone to raising the defense that caste isn’t a protected category, said Krishnamurthi.

The California bill “would have gone a good way to clear up that confusion and make it obvious the law covers caste discrimination,” he said.

The American Bar Association’s House of Delegates passed a resolution in August calling for expansion of state and federal anti-discrimination laws to include caste, despite the ABA’s report finding that existing laws could be read as covering it.

Seattle passed the nation’s first local caste bias ban in February, and Fresno, Calif., followed last month. Adding to the momentum around the issue, universities including Brown, California State, and Harvard have specifically added caste protections to their diversity policies.

Advocacy groups have called on the US Equal Employment Opportunity Commission to clarify whether it views federal law as covering caste bias under Title VII of the 1964 Civil Rights Act’s provision protecting employees by national origin, race, or religion. The commission hasn’t issued guidance on the issue, however.

Heated Support, Opposition

The California proposal drew vocal advocacy both from opponents and supporters within the state’s South Asian community, some of whom declared a hunger strike during the three weeks the bill awaited Newsom’s signature.

Strict social hierarchies such as caste exist in many countries around the world, affecting more than 1 billion people by some estimates. But opponents of the California bill including the Hindu American Foundation said the term “caste” is often associated with South Asian culture, particularly Hinduism in India, and would promote rather than alleviate bigotry by painting Indian-Americans as perpetrators of an oppressive system.

“We’ve been saying from day one: let’s just apply existing laws that have these facially neutral umbrella terms,” such as race, religion, and ancestry, said Suhag Shukla, executive director of the Hindu American Foundation.

In passing SB 403 through the legislature, “we shined a light on a long-hidden form of discrimination that persists across multiple communities in California,” the bill’s sponsor state Sen. Aisha Wahab (D) said in a written statement Oct. 10, following the veto.

“I believe our laws need to be more explicit especially in times when we see civil rights being eroded across the country. We cannot take anything for granted,” she said.

Protected Classes

California’s civil rights laws prohibit bias in employment, housing, education, and public accommodations on the basis of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.

SB 403 would have added caste as part of the definition of “ancestry.”

Title VII bans employment bias based on a shorter list of traits: national origin, race, color, religion, and sex.

But courts have interpreted those protections to encompass categories that aren’t specifically named. Notably, the US Supreme Court’s 2020 decision in Bostock v. Clayton County found that workplace bias based on sexual orientation and gender identity falls underneath the federal ban on “sex” discrimination.

Some legal scholars have said the court’s reasoning in Bostock could help support the argument that caste also is protected under existing categories such as race, national origin, or religion.

Earlier Supreme Court precedent also could be read as ensuring caste is covered under Section 1981 of the 1866 Civil Rights Act, said James E. Goodley, a Philadelphia attorney at Goodley McCarthy LLC.

Opponents of corporate diversity initiatives have recently used Section 1981 to challenge those programs in court.

Goodley recently represented five former hotel workers in reaching a settlement on caste bias claims in a Virginia federal court. In one brief, he cited to the Supreme Court’s 1987 decision in Saint Francis College v. Al-Khazraji to argue that Section 1981 covers caste and other traits related to ancestry.

Although there was no final decision on the merits, the Virginia court denied the defendants’ motion to dismiss, allowing the caste bias claims to proceed.

“The court believed, in my personal opinion, that if we could prove what we alleged then that’s a viable claim,” Goodley said.

The former hotel employees, who identified themselves as Indian immigrants of lower-caste backgrounds, said the upper-caste owners and managers required the employees to greet them with a traditional Hindu greeting of “Jay Shree Krishna” (meaning “Hail Lord Krishna”). They said this is expected of lower-caste people when encountering upper-caste people in India. One of the employees, who worked the front desk, also alleged he was moved from day shift to night shift because the owner said his skin was too dark.

The nature of caste bias limits the number of claims and likewise the opportunities for courts to set precedent, Goodley said.

“You’re talking about a pretty marginalized group of people,” he said of Indian-Americans from lower-caste backgrounds. “They fly under the radar to some extent.”