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Caste Bias Lawsuit Against Cisco Tests Rare Workplace Claim

July 17, 2020, 9:45 AM

John Doe, an Indian engineer at the Silicon Valley headquarters of Cisco Systems Inc., was different in the eyes of his fellow South Asian team members; he was the only member of the Dalit population, also known as the “Untouchables,” or the lowest caste in the hierarchical social system.

Because of their prejudice against his caste, he says he was paid less, given fewer opportunities, and endured inferior workplace conditions.

His case is a test for the U.S. legal system, giving a federal court the opportunity to decide if existing job protections ban caste discrimination.

The California Department of Fair Employment and Housing sued Cisco and two of the company’s employees on June 30 on behalf of Doe. His supervisors and co-workers were “beneficiaries” of the system, the complaint alleges, and therefore “imported” this form of bias to Cisco, and the U.S. at large.

The suit provides a look at how globalization is affecting U.S. discrimination laws, as workers from other cultures bring with them their own forms of bias to American shores. Dalit rights activists said this is especially true in workplaces where there are many South Asian employees, such as the technology sector.

“You’re suddenly having to deal with historical baggage that’s coming from another place,” said Anupama Rao, a Barnard College history professor who’s researched the history of caste social dynamics.

The lawsuit effectively tries “to translate a complicated social world into a justiciable harm,” she said.

At least some of Doe’s claims fall within categories protected under current law, attorneys say, but Dalit rights activists believe there’s more to be done, and want to see the creation of an entirely new workplace protection against caste bias.

“If anything, the U.S. legal system has a lot of catch-up to do,” said Laurence Simon, a Brandeis University professor of international development, with a focus on caste and social exclusion.

South Asian Population in U.S.

Caste discrimination has been outlawed in other countries, including India and the United Kingdom, but several immigration and employment attorneys contacted by Bloomberg Law had never heard of claims of caste-based discrimination making their way through U.S. federal or state courts.

At least one lawsuit alleging caste discrimination has previously been filed, according to a Bloomberg Law search of court opinions. Brought by a University of Michigan engineering professor, the case was ultimately dismissed without an analysis of whether caste is a protected category under Title VII of the 1964 Civil Rights Act. While a few rulings mention allegations of discriminatory comments based on caste, they stem from cases that don’t expressly raise a caste bias claim.

Almost 14 million foreign-born Asians lived in the U.S. as of 2018, the Census Bureau estimated. Almost 4 million foreign-born individuals came from India, as estimated in 2015.

And in 2019, more than 278,000 workers from India were the beneficiaries of H-1B visas, a temporary work visa for foreign nationals employed in specialty occupations. That’s almost 72% of all of the beneficiaries last year.

History of Caste Bias

The caste system is a birth-based social stratification, and for many, the caste into which one is born is an immutable characteristic.

“It’s said you were born into a caste because of merit or things you’ve done before in prior lives,” Simon said. Caste conflicts exist in the U.S., even if American employers and their workers aren’t necessarily attuned to detecting it.

“We do know that caste discrimination creeps into American society if people of high caste come with certain prejudices, these past prejudices or views, of people below them,” he said. “Caste is really the hidden discrimination in the United States.”

Thenmozhi Soundararajan, executive director of Equality Labs and a Dalit rights activist, said that wherever South Asians go, they bring the concept of caste discrimination.

“Does caste exist the way that it does India? No, I would never say that,” she said. “But that said, any institutions that have a prominent level of South Asians, you will see the recurrence of caste discrimination.”

That becomes a “blind spot” for businesses whose HR departments don’t have the cultural competencies to handle this form of discrimination, she said. Doe allegedly contacted Cisco’s HR department in 2016 about the workplace mistreatment he was experiencing. Department staff “indicated that caste discrimination was not unlawful,” and initially closed his complaint, the lawsuit alleges.

Cisco’s South Asian Hiring Strong

A Cisco spokesperson said the company is committed to an inclusive workplace.

“We have robust processes to report and investigate concerns raised by employees which were followed in this case dating back to 2016, and have determined we were fully in compliance with all laws as well as our own policies,” the spokesperson said in an email. “Cisco will vigorously defend itself against the allegations made in this complaint.”

Cisco, one of the top participants in the H-1B visa program, can’t be ignorant of the caste system with its hiring of South Asian workers, said Heidi Reavis, a partner with Reavis Page Jump LLP in New York. She represents both employers and employees in workplace disputes.

“When Cisco’s HR representatives knowingly and continuously dismissed Doe’s several complaints, they effectively sanctioned the company’s harmful anti-Dalit discrimination, harassment, and retaliation,” she said. “Doe came in with a few wounds; HR put his blood in the water.”

Companies are taking steps to understand caste discrimination and to get ahead of lawsuits, said Ken Willner, a Paul Hastings partner and vice chair of the firm’s Employment Law Department. He’s fielded requests in the past, primarily from engineering and IT firms.

“I think companies are learning about it and trying their best to adapt to it,” he said.

Another layer of complexity linked to caste discrimination in the U.S. is the fact that many Asian American workers and workers of Asian descent already face discrimination because of their color, race, and national origin.

Viability of Claims

At least some of Doe’s claims fall within the scope of current legal protections, according to attorneys and academics, though there might be some holes. Title VII prohibits job discrimination on the basis of race, color, religion, sex, and national origin, but the complaint alleges Doe also experienced ancestry bias, which is covered by California law but not Title VII.

The International Commission for Dalit Rights filed a complaint with the New York State Division of Human Rights in 2017 on behalf of a New York City restaurant worker who said his co-workers and managers harassed him by making comments about being from a lower caste. The state agency found the claims to have no probable cause, according to ICDR, because caste-based bias isn’t a protected classification under the state’s human rights law, among other reasons.

But Doe has numerous claims that are supported by Title VII, Reavis said.

“As Doe alleges, the discriminatory treatment appears to have been motivated by the color of Doe’s skin and his particular national origin, being of Dalit Indian origin and more darker-complexioned than non-Dalit Indians,” she said. “That the Indian caste system originated in India, does not shield caste-based discrimination from coverage of Title VII here.”

Doe’s ethnicity claims in particular “at least” should be supported by Title VII, and representative of the bias that occurred, said immigration lawyer Sheela Murthy of the Maryland-based Murthy Law Firm. She also said she’s never heard of a lawsuit alleging caste discrimination.

The claim of color discrimination isn’t congruent with caste discrimination, according to Rao. She said the caste system doesn’t operate based on color—but the lawsuit tries to maneuver within the confines of the American legal system.

“It’s trying to translate another social world into the kind of language that operates here in order to make the harm and the injury legible,” she said. “The argument now is that it continues to exercise harm in the form of exclusion, economic and social, that carries a price.”

Suhag Shukla, the executive director of the Hindu American Foundation, also warned of conflating color discrimination with caste discrimination. She said it’s a stereotype that darker skin reveals one’s caste. She also said that she’s never seen a lawsuit alleging caste discrimination in the U.S.

Another hole in the legal argument might arise with the claims of national origin, according to D.B. Sagar, president of the International Commission for Dalit Rights. He said if an employee discriminates against another employee of the same national origin, then the claim could be moot.

“We need to distinguish why this happened, within the same national origin,” he said. “That is caste.”

Legal Redress

Dalit rights activists and academics believe it’s necessary to create an entirely new protected category to prevent bias from occurring.

Brandeis University is one of the first higher education institutions to ban caste discrimination outright. The university’s chief diversity officer, Mark Brimhall-Vargas, said school leadership agreed when discussing the ban that caste was likely already prohibited under existing anti-discrimination laws.

“You’re right to understand that caste has a larger, less clear boundary,” he said. “That’s precisely why we felt more comfortable,” outlawing it.

Much like HR departments within U.S. companies, the U.S. legal system lacks the cultural competency around the caste system to pursue enforcement against bias, Soundararajan, of Equality Labs, said.

“Caste really is its own distinct category,” she said. “We have a huge oversight in our series of protected classes.”

—With assistance from Maeve Allsup

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergtax.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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