A ground-breaking lawsuit against Cisco tests this novel question. On June 30, the California Department of Fair Employment and Housing (“DFEH”) filed a lawsuit in federal court on behalf of a Dalit Indian (“untouchable” caste) engineer who alleges that he was discriminated against by high-caste Indian supervisors and coworkers.[1] The suit alleges that Cisco management was on notice of this discrimination but failed to stop or remedy it. Cisco claimed that caste discrimination is not illegal under applicable anti-discrimination statutes and that the victims of such discrimination are unprotected by those statutes.[2]
The DFEH, however, alleges that discrimination against Dalit Indians because of their caste falls under existing statutory protections and constitutes an unlawful employment practice on the basis of “religion, ancestry, national origin/ethnicity, and race/color.” The Indian caste system is far more than just an indicator of one’s socioeconomic position (i.e., wealth or class discrimination). Being “Dalit” is a hereditary status that has been passed down for centuries—with a group name and identity, Dalit—and is considered immutable; it can even follow one across continents, as seen in this case. In the case of Dalits, very much is in a name.[3] One cannot lift oneself out of being Dalit, and one’s children and descendants are consigned to the same fate in perpetuity. Viewed this way, Dalits’ status seems indistinguishable from ethnic ancestry, which is not coextensive with nationhood (there are ethnic minorities in many countries). Moreover, being Dalit appears intertwined with race/color and religion; for example, according to the complaint, Dalits are “typically the darkest complexion caste,” which may in part explain the reasons for their disfavored status and treatment.
In our view, the DFEH has a strong argument that Dalit employees at Cisco are protected by existing anti-discrimination laws. We would like to highlight a couple of avenues that may be particularly fruitful.
First, the California Fair Employment and Housing Act (“FEHA”) expressly protects employees from discrimination on the basis of “ancestry.” Cal. Govt. Code § 12940. There could hardly be a more perfect fit for discrimination based on “ancestry” than against Dalit Indians. They are being targeted precisely because of their “ancestry”: who their ancestors are and their inherited ancestral status— the rootstock from which they are descended.
Second, 42 U.S.C. § 1981 provides that all individuals are entitled to the same contractual (and certain other) rights as “white citizens” and thus protect non-white citizens from employment discrimination. On its face, this statute might appear not to apply to caste discrimination against Dalits. However, based on the legislative history of § 1981 and common conceptions of the race at the time of its enactment, the Supreme Court has held that the act also covers ethnic ancestry and protects members of “white” ethnic groups (such as Arabs, Italians, Russians, Jews, Greeks, Slavs, etc.) from discrimination. See Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987). It remains to be seen if this interpretation of the law would extend to discrimination by members of one Indian ethnic/ancestral group against another.
Ultimately, DFEH is to be commended for filing this suit and pressing the issue forward. It is worth paying attention to further developments in the case and the law. And, regardless of the success of the litigation, advocates may wish to push for more explicit protections for this kind of discrimination.
Footnotes
[1] https://regmedia.co.uk/2020/07/01/cisco.pdf. The suit is California Department of Fair Employment and Housing v. Cisco Systems Inc. et al., No. 5:20-cv-04374 (N.D. Cal.)[2] Notably, according to the complaint, more than 90 percent of Indian immigrants in the United States come from upper castes, while only a tiny percentage are Dalits, making Dalits in the professional ranks acutely vulnerable to workplace discrimination.[3] But see contra, Romeo and Juliet, “What’s in a name?” (2.2.43) (rhetorical question by Juliet Capulet Montague) William Shakespeare, The Complete Works of William Shakespeare (The Oxford Shakespeare), ed. with a glossary by W.J. Craig M.A. (Oxford University Press, 1916). 10/14/2020. https://oll.libertyfund.org/titles/1638#Shakespeare_0612zb_Romeo_847