Update – On October 7, 2023, Governor Newsom vetoed SB-403. In his veto message, Governor Newsom stated “[b]ecause discrimination based on caste is already prohibited under … existing [protected class] categories, this bill is unnecessary.”
On September 5, 2023, the California legislature passed SB-403, sending it to Governor Newsom’s desk for signature. Largely expected to be signed by Gov. Newson, California is set to become the first U.S. state to explicitly ban caste discrimination.[1] The new law will include a new protected characteristic which will bar caste discrimination in education, employment, and housing. The bill will not create a new law, rather it will modify existing laws such as the California Fair Employment and Housing Act’s definition of ancestry as a protected class to include caste as a subset of ancestry. Specifically, the following sub-sections will appear in the amended laws under protected classes:
(8) “Ancestry” includes, but is not limited to, lineal descent, heritage, parentage, caste, or any inherited social status. Nothing precludes a person from alleging discrimination on the basis of ancestry in combination with discrimination based upon other protected characteristics.
(9) “Caste” means an individual’s perceived position in a system of social stratification on the basis of inherited status. “A system of social stratification on the basis of inherited status” may be characterized by factors that may include, but are not limited to, inability or restricted ability to alter inherited status; socially enforced restrictions on marriage, private and public segregation, and discrimination; and social exclusion on the basis of perceived status.
The fact that ancestry and caste are both listed is not an accident. The bill was heavily criticized as opening the door for racial profiling. As a result, the bill was amended in committee to categorize caste as a subset of ancestry rather than a wholly separate protected class.
California, in making the move to bar caste discrimination recognizes the longstanding issues related to caste hierarchy among the melting pot of its citizens. However, this issue is somewhat unique to California and states with similar populations; caste hierarchy is more prevalent in South Asian (and some African) communities along with certain religions, namely Hinduism, while such classifications or considerations are fairly rare in the United States.[2],[3] Therefore, it’s hard to predict if this type of legislation is a first of its kind law, a-la paid family leave and sick leave laws, or if California is enacting specific legislation due to the uniqueness of the state’s population composition.
While I am all for clarification of laws, especially on the state-to-state level when particularized to the uniqueness of a state’s citizenship, I am not entirely sure that caste needs to be included in a protected class in and of itself on a national level. I believe that the tools to prevent caste discrimination already exist, and were available to citizens of California and Seattle already.
Ancestry is already a protected class under federal law which bars discrimination based on, among other classifications, national origin, race, color, creed, and/or ethnicity. In my reading of the California law, compared with regulations and law applied to existing anti-discrimination law, caste discrimination is already illegal as it is based on the individual, or his ancestor’s, national origin.
The Equal Employment Opportunity Commission defines national origin discrimination broadly.[4] “[N]ational origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”[5] Likewise, the Civil Rights Division of the Department of Justice (which is tasked with enforcing anti-discrimination laws in education, employment, and housing, among other sectors), states national origin discrimination includes discrimination based on “a person’s birthplace, ancestry, culture or language.”[6] Several states, including California, likewise have state laws barring discrimination based on national origin, and California’s law already specifically included ancestry as a protected class. While it is unclear if the argument that caste is the same as ancestry already passes muster, I certainly would not advise a client to make an employment decision based on an employee’s ancestral history and caste.
While it is always a step forward to prevent illegal discrimination, whatever the protected class or characteristic, the issue is not all that it seems. Perhaps awareness of existing laws and clarification of regulations as to those laws would be a better approach to prevent caste discrimination.
[1] 29 CFR § 1606.1
[2] Equal Employment Opportunity Commission, EEOC Enforcement Guidance on National Origin Discrimination, 29 CFR § 1601 (Nov. 18, 2016).
[3] DOJ Civil Rights Division, Federal protections Against National Origin Discrimination, (Oct. 2000).
[4] In February 2023, Seattle, WA banned caste discrimination by local ordinance, enacting the first anti-caste discrimination ordinance/law in the country. Bharath, Deepa, Seattle Becomes First U.S. City to Ban Caste Discrimination, Associated Press (Feb. 22, 2023).
[5] Sonia Paul, When Caste Discrimination Comes to the United State, National Public Radio, (April 25, 2018).
[6] Human Rights Watch, Caste Discrimination: A Global Concern, Vol. 13, No. 3 (Sept. 2001).