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 February 21, 2023, the City of Seattle, Washington became the first U.S. city – or any U.S. jurisdiction for that matter – to add caste to its list1 of categories protected against discrimination. As described below, this law will directly impact Seattle employers, but may also have an indirect impact on other employers, especially those with large contingents of workers of South Asian heritage.
What Is “Caste”?
The “Seattle Law” defines “caste” as “a system of rigid social stratification characterized by hereditary status, endogamy, and social barriers sanctioned by custom, law, or religion.”2 It quotes a United Nations Special Rapporteur’s statement that the caste system is “primarily associated with the South Asia region, where its existence is linked to the religiously sanctioned social structure of Hinduism ….”3 As the law further states, the majority of the affected communities live in or originate from the South Asian countries of India, Nepal, Sri Lanka, Bangladesh, and Pakistan.
The Seattle Law also acknowledges that caste systems exist elsewhere in “Christian, Muslim, Sikh, and other religious communities, all over South Asia, and in Southeast Asian and African communities, including Japan, the Middle East, Nigeria, Somalia, and Senegal.”4 Nonetheless, the primary focus of the law appears to be on how caste manifests in South Asian communities.
As some scholars have opined, the concept of “caste” – even in its relatively narrow South Asian form – is a complex amalgamation of multiple systems of social structuring, implemented in different ways across 1.8 billion people through different ethnic, linguistic, and religious groups and geographies.5 From this complex structure emerges the category of “Dalits,” arguably the best-known (though not the only) caste to have suffered discrimination at the hands of other castes who portray themselves as “upper caste” or “dominant caste.”6
Why Is Seattle Concerned About Caste?
The Seattle Law cites to the 2020 U.S. Census, which found that the state of Washington is home to more than 167,000 people from the South Asian diaspora, largely concentrated in the Greater Seattle area.7 This data also showed that the South Asian population is the fastest growing major ethnic group in Seattle. Many of the South Asians in the Seattle area work for tech companies, and a large portion of them are recent immigrants on, for example, H-1B work visas.8
In light of this significant and growing South Asian population, the Seattle Law states, “the concept of caste and associated discrimination traveled with individuals and communities” to Seattle.9 The legislative history of the Seattle Law indicates that “[i]n the United States, a rising number of caste-based groups—each with chapters throughout many major cities—also points to the importance of caste as an identifier for migrant Indian communities. Such caste-based associations in the United States are providing funds and political support for a resurgence of caste fundamentalism in South Asia as well.”10
Have There Been Instances of Caste Discrimination in U.S. Workforces?
The Seattle Law states that caste-based discrimination “occurs in the form of social segregation, physical and psychological abuse, and violence” in employment, education and housing.11 Drawing from various studies, the law states that “two in three [caste-oppressed people] face workplace discrimination,” including in industries like technology, construction, restaurant, and domestic work.
It refers to a recent high-profile case in which the California Department of Fair Employment and Housing sued a tech company, claiming that an Indian Dalit engineer was discriminated against at its Silicon Valley headquarters on the basis of his caste in violation of California’s Fair Employment and Housing Act.12 The engineer claimed that two managers, also from India, but belonging to a different caste, denied him promotions because of his caste, and retaliated against him when he complained of the discrimination.13 While – unlike the Seattle Law – caste is not explicitly protected, California argued that the alleged discrimination was prohibited under the categories of ancestry and race.
After the case was filed, 30 women engineers who identified themselves as Dalit employees of tech companies issued a public statement to the Washington Post stating that they had also faced caste discrimination in the U.S. tech sector.14 In May 2021, Dalit workers filed a class action lawsuit in federal district court in New Jersey against a Hindu religious organization and several business entities alleging wage and hour and trafficking violations related to the construction of a large Hindu temple in New Jersey.15 The complaint alleges that “[d]efendants essentially weaponized India’s caste system, using it to coerce the [p]laintiffs and other … workers to work for substandard pay under abysmal conditions in New Jersey.”16
Other Than Seattle, Have Other U.S. Jurisdictions Prohibited Caste Discrimination?
Except for the Seattle Law, no federal, state, or local law in the U.S. explicitly prohibits caste discrimination.
Scholars have argued, however, that caste discrimination may fall under the umbrella of national origin, race, ancestry, and/or religion discrimination under Title VII of the Civil Rights Act of 1964 and state and local anti-discrimination laws.17 Indeed, the California case mentioned above brought caste discrimination claims under existing prohibitions against race and ancestry discrimination; it remains to be seen if the court will recognize such an application of those types of discrimination.
What Can Employers Do?
The Seattle Law directly impacts employment practices in the City of Seattle only. Seattle employers must therefore update their policies and trainings to ensure that caste discrimination does not occur in their employment practices.
Employers outside Seattle with large South Asian populations among their workforces should also take note, because other jurisdictions may follow the lead of the Seattle Law and enact their own laws prohibiting caste discrimination. Moreover, as discussed above, even in the absence of such laws, plaintiffs may bring caste discrimination claims citing existing protected categories such as race and ancestry.
A handful of universities – including Brandeis University, Colby College, Brown University, the University of California-Davis, and California State University – have added caste as a protected category in their systemwide anti-discrimination policies.18 Harvard University instituted caste protections for student workers in 2021 as part of the contract with its graduate student union.19 The measures taken by these educational institutions may help guide employers considering similar measures.
As discussed above, caste is a complex sociological and anthropological concept, triggering deeply ingrained sensitivities in parts of the South Asian diaspora. Indeed, there were heated debates during the development of the Seattle Law,20 both for and against the law, and these debates have continued after its enactment. Some even argued that by allegedly singling out Hinduism, the law violates the U.S. Constitution. Given these sensitivities, when addressing caste discrimination in their workplace, employers are well-served to engage experienced employment counsel.
1 Previously, the list of these protected categories included: race, color, sex, marital status, sexual orientation, gender identity, genetic information, political ideology, age, creed, religion, ancestry, national origin, citizenship or immigration status, honorably discharged veteran or military status, an individual's actual, potential, perceived, or alleged pregnancy outcomes, or the presence of any disability. Seattle, OR, CB 120511, § 14.04.040.
2 Seattle, OR, CB 120511, § 14.06.020 (2023). “Endogamy” means that marriage within a specific group is required by custom or law.
3 Id., Preamble.
4 Id., § 18.12.280.
5 Guha Krishnamurthi & Charanya Krishnaswami, Title VII and Caste Discrimination, 134 Harv. L. Rev. F. 456, 458–59 (2021).
6 Id. at 464; As another scholar has noted: “The Indian caste system … is an elaborate fretwork of thousands of subcastes, or jatis, correlated to region and village, which fall under the four main varnas, Brahmin, Kshatriya, Vaishya, and Shudra, and the excluded fifth, known as Untouchables or Dalits. It is further complicated by non-Hindus – Muslims, Buddhists, and Christians – who are outside the caste system but have incorporated themselves to the workings of the country and, while eschewing rigid caste, may or may not have informal rankings among themselves and in relation to the varnas.” Isabel Wilkerson, Caste: The Origins of Our Discontents, p. 76 (2020).
7 Seattle, OR, CB 120511, Preamble (2023).
8 Paul Roberts, For Some Foreign Workers, Seattle Tech Layoffs Can Mean a Forced Exit, The Seattle Times, Dec. 4, 2022.
9 Seattle, OR, CB 120511, § 18.12.280 (2023).
10 Memorandum from A. Venkataraman to Seattle City Council, “CB 120511: Adding Caste to Seattle’s Protected Classes,” Feb. 16, 2023 (internal citations omitted), available at http://seattle.legistar.com/View.ashx?M=F&ID=11651954&GUID=8BB5B94B-EB71-40C1-B5CF-D0A8D75D8877 (last accessed February 26, 2023).
11 Seattle, OR, CB 120511, Preamble (2023).
12 Id.; Dep’t of Fair Emp. & Hous., No. 20-CV-372366, Sup. Ct. Santa Clara Cty (2020).
13 Recently, a CA appeals court denied the company’s motion to compel arbitration. See generally Dep’t of Fair Emp. & Hous., 82 Cal. App. 5th 93 (2022).
14 Nitasha Tiku, India’s Engineers Have Thrived in Silicon Valley. So Has its Caste System, The Wash. Post, Oct. 27, 2020.
15 Annie Correal, Hindu Sect Known as BAPS is Accused of Using Forced Labor to Build New Jersey Temple, The N.Y. Times, May 11, 2021.
16 Kumar et al. v Bochasanwasi Shri Akshar Purushottam Swaminarayan Sanstha, Inc. et al. No. 3:21-cv-11048, ¶ 269 (D.N.J. 2021).
17 Guha Krishnamurthi & Charanya Krishnaswami, Title VII and Caste Discrimination, 134 Harv. L. Rev. F. 456, 471-480 (2021).
18 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.
19 Sakshi Venkatraman, Harvard Adds Caste Bias Protections for Graduate Student Workers, NBC News, Dec. 2, 2022.
20 The Associated Press, Seattle Becomes the First U.S. City to Ban Caste Discrimination, NPR, Feb. 22, 2023; Astha Rajvanshi, How Seattle Became the First American City of Ban Caste Discrimination, Time, Feb. 23, 2023.