Become a Patreon!


Excerpted From: Brett Whitley, Importing Indian Intolerance: How Title VII Can Prevent Caste Discrimination in the American Workplace, 75 Arkansas Law Review 163 (2022 ) (231 Footnotes) (Full Document)


BrettWhitleyImagine it is the year 2020. You are one of the more than 160 million people across India that are labeled as Dalits, formerly known as the “Untouchables.” Most Hindus view Dalits as belonging to the lowest rung in the ancient system of social stratification that impacts individuals across the globe called the caste system. Your people have endured human rights abuses for centuries, but luckily, neither you nor a loved one have ever been the victim of one of the thousands of horrendous crimes such as assault, rape, or murder committed against your people each year. Even so, you have never felt safe, especially when newspaper headlines read: “Dalit [] beaten to death for plucking flowers;” “Dalit tortured by cops for three days;” or “Dalit woman gang-raped, paraded naked.” Despite your fears, you have persevered throughout school due to India's affirmative action plan, or “compensatory discrimination” program. You wish not only to escape the country that is hostile to your caste, but to also obtain a job outside of the realm of undesirable occupations to which Dalits are ordinarily limited. To your delight, you obtain a respectable job working for a tech giant in the United States. However, you quickly learn that the caste discrimination you faced at home transcends borders.

At your new job, you begin to associate with your upper caste coworkers who also immigrated from India. After a short conversation about where you went to school in India and your last name, your Dalit status is apparent, and your coworkers and supervisors input limitations for you based on your caste. From that point onward, you “receive[] less pay, fewer opportunities, and other inferior terms and conditions of employment ....”

This is no imaginary tale. It is the story of an anonymous Dalit employee who sought to bring a Title VII claim based on caste discrimination against his employer, CISCO. Importantly, he is not alone. It may be difficult to ever know how many Dalits are currently in the United States because they fear that their caste can be revealed, or in other words, “outed.” However, there are concrete numbers that in 2003 only 1.5% of Indian immigrants in the United States were Dalit or lower caste, leaving them vastly outnumbered in comparison to the total 2.5 million people of Indian descent who lived in the United States at the time. It may also be useful to compare the 2003 figures in the United States to statistics in South Asia regarding Dalit demographics to get an idea about disproportionate Dalit representation. A 2016 survey found that in some South Asian countries “Dalits represent an average of 15-18% of the population and Brahmins, the highest ranking caste, [represent] approximately 3-4%.”

Heinous crimes like sexual assault or murder are the most extreme products of caste discrimination and should warrant the most attention, but the effects of caste discrimination are not limited to these crimes. There are many other, less apparent ways in which a biased upper caste supervisor may remind Dalit and lower caste employees that they are inferior, therefore upholding the caste hierarchy that exists so prevalently in their home country of India. Whether the biased supervisor torments a Dalit or lower caste employee with caste-related jokes or takes his or her discriminatory goals a step further by making it his or her mission to limit the success of Dalits or lower caste employees, the supervisor's actions are the product of the caste system.

As Indian immigration to the United States continues to grow exponentially, the tech industry has become “increasingly dependent on Indian workers.” Further, as more lower caste and Dalit individuals benefit from India's affirmative action programs and welfare schemes, Dalits and lower caste individuals now have the increased opportunity to become skilled employees and immigrate to the United States. As the United States becomes increasingly more dependent on South Asian, and especially Indian, workers, more and more Dalit and lower caste individuals have found themselves coming to the United States for gainful employment. This growing dependency on workers who come from differing caste backgrounds paired with the caste system's entrenched place in Hindu culture suggests that caste discrimination in the United States workplace is likely to get worse, especially in Indian-dominant industries such as the tech sector. Though most Americans may not know the role caste plays in Hindu culture, caste discrimination is very much an “American problem.” Whether it is the American employer seeking to eliminate discrimination in the workplace or the Dalit employees seeking a better life, there is legislation that can protect Dalit and lower caste employees--Title VII of the Civil Rights Act of 1964.

This Comment begins in Part I with an overview of the caste system and its origins. In Part II, this Comment demonstrates how caste discrimination in employment contexts constrains social mobility. Parts III and IV include the crux of my proposal--the theory of Intersectionality shows that caste discrimination is prohibited under Title VII by recognizing that caste discrimination is simultaneous discrimination based upon one's existence in multiple protected classes. After establishing caste's coverage under Title VII, this Comment narrows its focus to how a victim of caste discrimination may bring a claim under Title VII in Part V. Lastly, in Part VI, this Comment provides proposals specific to legislative bodies, employers, and most importantly, the Equal Employment Opportunity Commission (“EEOC”). Such proposals contend that legislative bodies, employers, and the EEOC should create caste-centric policies and interpretations that specifically prohibit caste discrimination instead of attempting to shape caste so that it fits into just one of Title VII's protected classes. Overall, these proposals would show courts that there is support for prohibiting caste discrimination in the American workplace.

It is also important to note that this Comment is not the only work that addresses the possibility of caste discrimination being covered by Title VII. Guha Krishnamurthi and Charanya Krishnaswami authored a preliminary draft titled Caste and Title VII to discuss the possible prohibition of caste discrimination in the American workplace. This work thoughtfully applies the authors' expertise on the caste system to what we know about Title VII's protected classes in order to determine whether caste discrimination is discrimination based on one or more of the protected classes. Similar to this Comment, Caste and Title VII contends that caste discrimination is a legally cognizable claim under Title VII because “in light of the Supreme Court's teaching in Bostock v. Clayton County, caste discrimination is cognizable as race discrimination, religious discrimination, and national origin discrimination.” This Comment also discusses how and why caste discrimination is discrimination based upon the protected classes. Additionally, this Comment seeks to add to the current scholarship by discussing the use of the theory of Intersectionality when arguing Title VII's coverage of caste.

This Comment adds to the current scholarship by describing how caste discrimination can be at least based in part upon one's membership in all of Title VII's protected classes. However, this Comment does not list options, or in this case, protected classes, that a court may choose to recognize caste discrimination as falling under. Instead, this Comment contends that, under the theory of Intersectionality, not only can courts recognize caste discrimination as being discrimination based either on one's race, religion, color, sex, or national origin, courts should recognize caste discrimination as simultaneous discrimination based potentially on one's existence in all of the protected classes. Importantly, Caste and Title VII does not deny the possibility that the theory of Intersectionality should be used in arguing that caste discrimination is covered by Title VII. Ultimately, while this Comment and Caste and Title VII are similar in many aspects, such as the overarching argument that caste discrimination is prohibited by Title VII, the two works reach this conclusion in different ways.

[. . .]

Just as B.R. Ambedkar, the most influential Dalit civil rights leader, predicted in 1916, caste has become a “world problem” as Indian migration has spread across the globe. In order to combat this problem, courts need to make affirmative rulings that caste discrimination is prohibited by Title VII. Specifically, courts should accept the theory of Intersectionality as a means to reach such a conclusion because caste is a unique, multidimensional form of discrimination simultaneously overlapping into potentially all of the protected classes enumerated in Title VII. Further, this fight should not, and cannot, be confined to the courtroom if caste discrimination in the United States is to be stopped. To end the harms of caste discrimination in the workplace, legislative bodies, agencies, and employers need to specifically identify caste discrimination as a prohibited practice. Although caste, like an ancient poisonous tree, will not easily be uprooted, prohibiting caste discrimination in the American workplace is a substantial step towards equality for all.

Become a Patreon!