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Rare Caste Bias Case Advances, Raising Calls for Federal Action

Aug. 10, 2022, 9:35 AM

Federal workplace civil rights agencies remain silent on the issue of caste discrimination as a former Cisco engineer’s lawsuit will proceed in open court rather than arbitration.

A California state court will weigh in on a case from a former Cisco Systems Inc. worker who’s made a claim of caste discrimination—one of the first of its kind. Meanwhile, federal agencies like the US Equal Employment Opportunity Commission have remained silent on the issue, even as caste equity groups have pushed for support.

The ex-worker claims he was a victim of discrimination because of his low caste standing. The unnamed plaintiff, who is represented by the California Civil Rights Department—the agency formerly known as the Department of Fair Employment and Housing—won an appeal on Aug. 5 allowing him to proceed with the lawsuit under a pseudonym in open court rather than arbitration, an alternative adjudication forum favored by and often more favorable to employers.

The man claimed supervisors at Cisco’s San Jose, Calif., headquarters excluded him from meetings and passed him up for promotions due to his status as part of the Dalit caste, considered the lowest rung of the hierarchical South Asian system. He also accused Cisco of retaliating against him after he complained about his treatment.

His attorneys are relying on a California antidiscrimination statute that includes protection for discrimination based on ancestry. The EEOC hasn’t formally interpreted federal law as it relates to caste discrimination, nor has it taken on cases involving such issues.

The agency declined to comment on the Cisco case or future plans to address caste discrimination.

Legal Landscape

The case was originally filed in federal court in 2020, but the California agency voluntarily dismissed it to later refile it in state court. The rare discrimination claim has yet to be tested on its merits.

Cisco requested that the case be moved to arbitration based on an employment agreement the plaintiff signed. But the appeals court last week affirmed the trial judge’s ruling rejecting Cisco’s request to move the lawsuit out of court because the case is being brought by the California agency, which isn’t bound by the arbitration agreement.

The judge also let the ex-employee move forward with the proceedings anonymously, a request made out of fear for the safety of family members outside of California.

Given that caste is directly tied to someone’s ancestry, discrimination based on caste falls squarely under California’s Fair Employment and Housing Act, which outlaws ancestry discrimination, said John Rushing, a partner at Rushing McCarl LLP. Only about 14 states have nondiscrimination statutes that explicitly protect against ancestry discrimination, according to a report by the Center for American Progress.

Though it’s not the issue in front of the court in the Cisco case, caste discrimination potentially could fall under race discrimination on the federal level under Title VII of the Civil Rights Act of 1964, Rushing said, though some scholars don’t necessarily see caste as a racial issue.

Rushing pointed to the Supreme Court’s landmark 2020 ruling in Bostock v. Clayton County, Ga., which held that discrimination based on sexual orientation or gender identity is discrimination “based on sex” under Title VII.

“The same reasoning applies in this matter, where if you hold everything else constant and you change the fact that he was born South Asian, then this wouldn’t apply,” Rushing said. “Based on Bostock’s reasoning we think there’s an argument to be made that Title VII applies.”

Lower-caste members also could raise national origin discrimination claims, Rushing said, noting case law has tied national origin and ancestry closely together. This has resulted in successful claims of discrimination based on Latino or Cajun heritage, which isn’t necessarily tied to a particular nation-state.

‘I Know It When I See It’

Since the California agency sued Cisco alleging caste bias, discussions on this form of discrimination have exploded.

Brandeis University was one of the first institutions of higher education to ban caste bias from its campus, but since 2020, others have followed suit. Colby College, the California State University system, and the Harvard Graduate Student Union, among others, have added caste as a protected category.

These conversations have arisen in Silicon Valley, too, where Cisco is headquartered and where Alphabet Inc.—Google’s parent company—came under fire after canceling a talk hosted by a prominent Dalit rights activist. The Alphabet Workers Union, an organization that speaks on behalf of some Google employees, is pushing for the company to formally ban caste discrimination.

Workers themselves are also speaking out even though doing so could open them up for more discrimination, or even violence. A group of 30 women engineers in the technology industry publicly shared their experience of discrimination in an open statement to the Washington Post in 2020.

Workplace caste discrimination can manifest in subtle ways, according to Anupama Rao, a history professor at Barnard College. Caste isn’t necessarily determined by race, color, or complexion. It can also be associated with surnames, but most often it is deciphered with leading questions about what municipality somebody may be from in South Asia or what school they or their parents attended, Rao said.

“What you end up having is a ‘I know it when I see it’ model for discrimination at work,” she said.

Lower-caste people in India historically have been identified by their income status or work in low-wage jobs, Rao said. In the past several decades, India has enacted caste affirmative action initiatives that have led to more lower-caste individuals working overseas in skilled jobs alongside upper-caste workers.

“What you are seeing in the more recent past is people who have gone through universities in India, who have come out of strong university politics there and are coming into these spaces and are beginning to ask these fundamental questions about exclusion,” Rao said. “This is not new, but a new phase I think.”

Caste discrimination goes wherever South Asian people may be, according to Sonja Thomas, an associate professor of women’s, gender, and sexuality studies at Colby College in Maine, where she spearheaded the effort to ban caste bias on campus.

Technology companies know about caste discrimination since many of them have outposts in India, she said.

“The CEO of Google is a Brahmin man, who was born and raised in India,” she said.

To contact the reporters on this story: J. Edward Moreno in Washington at jmorenodelangel@bloombergindustry.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com