Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On July 5, 2023, the California Senate voted 34-1 in favor of clarifying existing law by defining “ancestry” to include “caste” as protected within the state’s anti-discrimination statutes.1
When this bill, SB 403, was originally proposed, it added caste as a new category of protected characteristics under the state’s antidiscrimination law. On July 10, 2023, this bill was significantly amended to strike caste as its own category and instead list it as part of the definition of “ancestry,” and to state that this is simply declarative of existing law. The definition would be included in both the Unruh Civil Rights Act, the Fair Employment and Housing Act (FEHA), and provisions of the Education Code. The bill is before the Assembly Appropriations Committee and will be evaluated once the legislature comes back from summer recess in mid-August.
As defined in this bill, caste is an individual’s perceived position in a system of social stratification on the basis of inherited status.
Although the bill’s immediate impact would be limited to employment practices within California, employers outside the state would be wise to take note of these shifting sands. California's example could lead other jurisdictions to create their own laws banning caste discrimination.
What is “Caste”?
The notion of “caste” is a complex system of hereditary classes common to certain societies and cultures. Castes are applied in various manners encompassing 1.8 billion people within different ethnic, linguistic, and religious groups.2
The proposed amendments to California’s anti-discrimination laws include caste as a subcategory of “ancestry,” defining “caste” as “an individual’s perceived position in a system of social stratification on the basis of inherited status.” The definition further details that “‘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.”
Senate Bill 403’s current definition of caste purposefully declines to name countries or regions from which caste systems originate.3 When the bill was first introduced, opponents criticized the generalization that caste systems are prevalent in certain regions of the world versus others, arguing that this delineation would only enforce discrimination against individuals from those regions. Taking these criticisms into account, California’s bill would allow for caste-based individuals of any country to make claims.
Why is Caste in the Conversation?
State Senator Aisha Wahab, the author of Senate Bill 403, disclosed that she consistently receives reports of caste-based discrimination. As the United States becomes more diverse, the issue of caste-based discrimination represents an ever-growing problem. Given that castes originate from a variety of different countries and cultures, caste-based discrimination has the potential to be present in many walks of life, regardless of sex, race, religion, ethnicity, or gender. Several employers have responded to this issue by updating policies or procedures to prevent caste-based discrimination.
The Discussion About Caste Is Spreading
On February 21, 2023, Seattle, WA became the first U.S. jurisdiction to add caste to its list of categories protected from discrimination. Aside from the City of Seattle, no federal, state, or local laws explicitly prohibit caste discrimination.
Other jurisdictions and institutions, however, have responded to Seattle’s law by considering or enacting similar rules or laws. For example, though the bill never passed, Oregon recently considered House Bill 3612, which would have prohibited caste-based discrimination in specified areas of the law. Vermont similarly considered House Bill 448, though it did not pass and was not re-introduced. Additionally, many universities across the country have enacted rules prohibiting caste-based discrimination.4
Others have contended that caste discrimination could potentially be encompassed within the scope of currently protected classes like national origin, race, ancestry, and/or religious discrimination as outlined in Title VII of the Civil Rights Act of 1964, as well as in state and local anti-discrimination laws.5. Indeed, this argument is supported by the introduction of Senate Bill 403, which includes caste as a defined subcategory of “ancestry.”
What Can Employers Do?
The prospective amendments to California’s anti-discrimination laws would impact employers within the state of California only. Thus, if the bill is ultimately enacted, California employers would be required to revise their policies and training programs to incorporate discussion of caste discrimination in their regular equal employment initiatives.
The complexity of the caste system and its origins can be a sensitive topic. Indeed, both during and after the enactment of Seattle’s law as well as during the drafting of SB 403, individuals of varying backgrounds participated in ongoing debates. These debates have highlighted many intricate considerations that must be accounted for when addressing caste-based discrimination, such as the potential for increased discrimination against individuals from certain regions if policies specifically identify those regions as an origin for caste and caste-based discrimination. Given these sensitivities, employers would be wise to engage experienced employment counsel when addressing caste-based discrimination in the workplace.
*Gabe Malouf is a summer associate in Littler’s Washington, DC office
1 Currently, the list of protected characteristics includes sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. Cal. Civ. Code Ann. § 51(b) (West).
2 Guha Krishnamurthi & Charanya Krishnaswami, Title VII and Caste Discrimination, 134 Harv. L. Rev. F. 456, 458–59 (2021).
3 2023 California Senate Bill No. 403, California 2023-2024 Regular Session at 6-7. Opponents of the amendments are unconvinced “that the definition of ‘caste’ in the bill is facially neutral and could be applied to any caste system in many parts of the world.”
4 Greta Anderson, Prohibiting Caste Prejudice on Campus, Inside Higher Ed, Dec. 20, 2019; Kardelen Koldas, Caste Added to Colby’s Nondiscrimination Policy, Colby News, Oct. 12, 2021; Harmeet Kaur, Brown University Becomes First Ivy League to Ban Caste Discrimination, Advocate Channel, Dec. 7, 2022; Sakshi Venkatraman, All Cal State Universities Add Caste to Anti-Discrimination Policy, NBC News, Jan. 18, 2022; Sakshi Venkatraman, Harvard Adds Caste Bias Protections for Graduate Student Workers, NBC News, Dec. 2, 2022; Alexa Gromko, Colorado College Adds Caste to Nondiscrimination Policy, Colorado College, Mar. 9, 2022.
5 Guha Krishnamurthi & Charanya Krishnaswami, Title VII and Caste Discrimination, 134 Harv. L. Rev. F. 456, 471-480 (2021).