Introduction
In the summer of 2020, a report of workplace discrimination roiled Silicon Valley and the tech world.1 An employee at Cisco Systems, Inc. (Cisco), known only as John Doe, alleged he had suffered an insidious pattern of discrimination — paid less, cut out of opportunities, marginalized by coworkers — based on his caste.2 Consequently, the California Department of Fair Employment and Housing (DFEH) brought suit against Cisco, alleging that the employee’s managers and (thus) Cisco had engaged in unlawful employment discrimination.3 Doe is a Dalit Indian.4 Dalits were once referred to as “untouchables” under the South Asian caste system; they suffered and continue to suffer unthinkable caste-based oppression in India and elsewhere in the Subcontinent.5 Doe claims that two managers, also from India but belonging to a dominant caste,6 denigrated him based on his Dalit background, denied him promotions, and retaliated against him when he complained of the discriminatory treatment.7 Thereafter, a group of thirty women engineers who identify as Dalit and who work for tech companies like Google, Apple, Microsoft, and Cisco shared an anonymous statement with the Washington Post explaining the caste bias they have faced in the workplace and calling for the tech industry to be better.8
While Doe’s and the thirty women engineers’ allegations of caste discrimination raise novel questions about the application of civil rights statutes to workplace discrimination on the basis of caste, these allegations echo a tale as old as time: the millennia-old structure of caste discrimination and the systemic oppression of Dalits, which has been described as a system of “apartheid,”9 the “[c]onstancy of the [b]ottom [r]ung,”10 and reduction to the “lowest of the low,”11 a fixed position that followed Doe and these thirty women engineers halfway around the world. DFEH’s case based on Doe’s allegations is still at the complaint stage, with a long road of discovery surely ahead. Other claims of caste discrimination, including by the thirty women engineers, have not yet been brought to court. Thus, for all these cases, a preliminary legal question beckons: Is a claim of caste discrimination cognizable under Title VII of the Civil Rights Act of 1964?12 We argue that the answer is yes.
This Essay continues in two Parts. In Part I, we explain the basic contours and characteristics of the South Asian caste system and detail the reach and impact of caste in the United States. In Part II, we explain how caste discrimination is, as a legal matter, cognizable under Title VII as discrimination based on “race,” “religion,” or “national origin,” following the Supreme Court’s teaching in Bostock v. Clayton County,13 in which the Court found that sexual orientation discrimination is a type of sex discrimination.14 We briefly conclude, contending that, despite the coverage of caste discrimination under federal law, the U.S. Equal Employment Opportunity Commission (EEOC) or Congress should provide further clear guidance — and in doing so consider other kinds of discrimination throughout the world that should be explicitly prohibited in the United States. While addressing claims of caste discrimination through Title VII enforcement is just one of many steps that must be taken to eradicate caste-based discrimination, naming caste as a prohibited basis on which to discriminate has the added value of increasing public consciousness about a phenomenon that, at least in U.S. workplaces, remains invisible to many.
I. Caste Discrimination and Its Reach
A. Brief Description of the South Asian Caste System
Caste is a structure of social stratification that is characterized by hereditary transmission of a set of practices, often including occupation, ritual practice, and social interaction.15 There are various social systems around the world that have been described as “caste” systems.16 Here, we will use “caste” to refer to the South Asian caste system that operates both in South Asia and in the diaspora.17 As we will see, the South Asian caste system is a hierarchical system that involves discrimination and perpetuates oppression.
The South Asian caste system covers around 1.8 billion people, and it is instantiated in different ways through different ethnic, linguistic, and religious groups and geographies.18 As a result, it can be difficult to say anything categorical about the caste system. Thus, our description identifies its broad contours and characteristics.
The caste system is rooted in the indigenous traditions, practices, and religions of South Asia.19 We can generally refer to those traditions, practices, and religions as “Hinduism.” The term Hinduism, as we use it, is an umbrella term for a diversity of traditions, practices, and religions that may share no common thread except for geographical provenance. So defined, the term Hinduism is capacious. We separately identify Jainism, Buddhism, and Sikhism. As a matter of convention, Christianity and Islam are not generally considered or labeled indigenous religions of the Subcontinent, but the forms of those religions in the Subcontinent have distinctive features.20
The caste system is an amalgamation of at least two different systems: varna and jati.21 Varna is a four-part stratification made up of brahmana, kshatriya, vaishya, and shudra classes.22 These classes have been characterized as the priestly class, the ruler-warrior class, the merchant class, and the laborer class, respectively.23 There is implicitly another varna — those excluded from this four-part hierarchy.24 They are sometimes described as belonging to the panchama varna (literally, the “fifth varna”).25 The panchama varna is treated as synonymous with the term “untouchable”26 — now called “Dalit.”27
Alongside the varna system is the jati system. Jati refers to more specific groupings, and in the actual practice of the caste system, jati is much more significant.28 There are thousands of jati-s, and jati identity incorporates, among other things, traditional occupation, linguistic identity, geographical identity, and religious identity.29 Similar to varna, there is a large underclass in the jati system made up of many jati-s. Those include jati-s based on certain traditional occupations viewed as “unclean,” like agricultural workers, scavengers, cobblers, and street sweepers.30 They also include certain tribal identities, called “Adivasis.”31 The relationship between varna and jati is complex. At various junctures, people have attempted to place jati-s within a varna, to create a unified system of sorts. This attempted fusion inevitably continues the “tradition of dispute over whether these two hierarchies coincide, and which is the more fundamental.”32
The foundations of the caste system are nebulous at best. The system may have had some grounding in primitive racial, color, ethnic, or linguistic distinctions, but that is unclear.33 Nevertheless, the resulting caste system can be characterized with at least the following core traits: (1) hereditary transmission and endogamy; (2) strong relationships with religious and social practice and interaction; (3) relationships with concepts of “purity” and “pollution”; and (4) hierarchical ordering, including through perceived superiority of dominant castes over oppressed castes, hierarchy of occupation, and discrimination and stigmatization of oppressed castes.34
As observed, the caste system is rooted in Hinduism.35 And it continues to live in modern Hindu practice.36 Of course, many Hindus are committed to the eradication of caste and the belief that true Hindu belief eschews (and has always eschewed) the evils of caste.37 But modern Hindu practice continues to recognize and entrench caste in religious and social practice and interaction, and people suffer oppression and discrimination on the basis of caste.38 The tentacles of caste oppression extend beyond modern Hindu practice as well: in South Asia, caste distinction and oppression manifests in Christian, Muslim, Sikh, and Jain communities, among others.39 As a detailed report on caste by the Dalit-led research and advocacy group Equality Labs has observed, “[t]his entire [caste discrimination] system is enforced by violence and maintained by one of the oldest, most persistent cultures of impunity throughout South Asia, most notably in India, where despite the contemporary illegality of the system, it has persisted and thrived for 2,500 years.”40 There is no doubt that Hinduism provided the foundation for caste discrimination and oppression and that modern Hindu practice continues to perpetuate it. But the insidiousness of caste discrimination is such that it sprouts and thrives even when divorced from its doctrinal home of Hinduism, and even when there is claimed caste eradication.
Regarding caste hierarchy, the ordering is complex, incomplete, and controversial. There is no lineal ordering, and any putative ordering is not definitive. Brahmana are generally described as occupying the top of the proverbial pyramid, though kshatriya and vaishya communities often claim divine lineage, and do not necessarily recognize any so-called brahmana supremacy.41 These three varna are usually understood to form the core of the so-called “upper,” or dominant, castes.42 Those of the four named varna-s have historically been ranked as “superior” to those of the fifth (panchama) varna — the “untouchables” or Dalits.43 Similarly clear is that those categorized as brahmana, kshatriya, and vaishya have historically subjugated the shudra varna.44
Of course, these hierarchical comparisons are entirely bigoted and without merit.45 As a result of them, Dalits, Shudras, and others have experienced and continue to experience horrific oppression at the hands of dominant castes — what Equality Labs has described as a “system of Caste apartheid,” with oppressed castes “having to live in segregated ghettoes, being banned from places of worship, and being denied access to schools and other public amenities including water and roads.”46
Oppressed-caste status impacts everything in one’s life.47 It can impact one’s access to religious and social institutions — for example, Dalits and Shudras may be barred from entering temples, mosques, gurdwaras, and churches.48 It may mean that they cannot eat in certain restaurants or shop at certain stores. It may mean that they are not allowed to marry people of different caste lineage49 — and will be killed if they try.50 It may mean that they cannot eat in certain people’s houses.51 It may mean that they are not even allowed to cremate or bury their dead.52 Moreover, oppressed-caste individuals have often been subjected to hate-based violence, with no genuine access to jus-tice.53 And, as a political matter, individuals of oppressed castes have often been denied meaningful representation.54
Consequently, South Asian governments have attempted to address these problems, at least nominally, through prohibitions on discrimination55 and through “reservation” — systems that seek to uplift these oppressed communities through uses of quotas in education and employment.56 These actions have faced continued opposition from members of dominant castes.57 And, as a result, Dalits, Adivasis, and Other Backward Classes (OBCs) who obtain reservation are often discrimi-nated against as potential beneficiaries of reservation, even though res-ervation was meant to rectify and address millennia of caste-based oppression.
Finally, and relevantly, the South Asian caste system has traveled beyond the borders of the Subcontinent. The South Asian diaspora observes caste identity, and there is consequent caste discrimination.58 As Bhimrao Ramji Ambedkar, a leader of the Dalit liberation movement and author of the Indian Constitution, stated, caste discrimination and oppression “is a local problem, but one capable of much wider mischief, for ‘as long as caste in India does exist, Hindus will hardly intermarry or have any social intercourse with outsiders; and if Hindus migrate to other regions on earth, Indian caste would become a world problem.’”59
B. The Impact of Caste in the United States
The immigration of South Asians to the United States has come in waves, each of which has changed the caste dynamics of the population. While today the population is viewed as a monolith, from the earliest days of South Asian migration, dominant-caste members of the diaspora sought to differentiate themselves from the oppressed others.60 Given dominant-caste members’ fears that crossing an ocean would cause them to lose their caste status, the earliest migrants to the United States were those who had nothing to lose: predominantly oppressed-caste and non-Hindu people.61
At the turn of the twentieth century, xenophobic backlash against East and South Asian immigrants led to new laws forbidding nonwhite immigrants from accessing citizenship, with heart-wrenching consequences for South Asian immigrants who had forged lives and families in the country.62 In 1923, Bhagat Singh Thind, a dominant-caste immigrant born in Amritsar, Punjab, “sought to make common cause with his upper-caste counterparts in America,”63 effectively arguing his ethnic background and caste laid a claim to whiteness in his adopted coun-try — claims, as Equality Labs notes, the caste-oppressed could never make.64
Today, there are nearly 5.4 million South Asians in the United States.65 From 2010 to 2017, the South Asian population grew by a “staggering” forty percent.66 The first wave of modern migration from the Subcontinent took place in the wake of the Immigration and Nationality Act of 1965,67 which removed discriminatory national origin-based quotas, and which established the modern immigration system based on work and family ties.68 Equality Labs notes the majority of South Asian immigrants who came to the United States after the 1965 reform were “professionals and students[,] . . . largely ‘upper’ Caste, upper class, the most educated, and c[oming] from the newly independent Indian cities.”69 Oppressed-caste people, by contrast, having had at that point just limited access to educational and professional opportunities, came in smaller numbers.70 The Immigration Act of 1990,71 which liberalized employment-based migration, further opened up pathways for South Asian immigration to the United States.72 This wave, according to Equality Labs, included a growing number of immigrants from historically oppressed castes who, through resistance movements and reforms in access to education and other opportunities, were increasingly able to harness sufficient mobility to migrate.73 Even still, according to a 2003 study from the Center for the Advanced Study of India at the University of Pennsylvania, only 1.5% of Indian immigrants were members of Dalit or other oppressed castes, while more than 90% were from high or dominant castes.74
Yet, contrary to the fears of the earliest South Asian immigrants to the United States, the fact of one’s caste is not shed by the crossing of an ocean. As South Asian immigrants have integrated into the United States in increasing numbers, caste discrimination among the diaspora’s members threatens to entrench itself as well. This caste discrimination is complicated and perhaps obscured by a second racial caste system in the United States: one which situates South Asians generally as an in-between “middle caste,” relatively privileged and sometimes conferred “model minority” status, yet still systematically excluded from the highest echelons of power and discriminated against on the basis of race and national origin.75
Given how entrenched and ubiquitous caste oppression still is across South Asia, and how programmed and hereditary discriminatory attitudes can be, it is easy to imagine how a subtler, more insidious form of caste discrimination has replicated here. As the South Asian community in the United States has grown, so have, for example, identity groups organized around linguistic and caste identities,76 informally entrenching caste divisions among South Asians in the United States. The only study of which we are aware concerning caste identity and discrimination in the United States, conducted by Equality Labs, found that, of 1,200 people surveyed, over half of Dalits in the United States reported experiencing caste-based derogatory remarks or jokes against them, and over a quarter reported experiencing physical assault based on their caste.77
Of particular relevance to this paper, an astonishing two-thirds of Dalit respondents to the survey reported experiencing some form of discrimination in the workplace.78 The workplace is one of the primary areas where caste discrimination manifests — perhaps because caste itself is historically predicated in part on one’s work, the notion that one’s birth consigns one to a certain occupation, and concomitantly a certain status and fate.
In the U.S. tech sector, which has a large South Asian workforce,79 complaints of caste discrimination have been particularly rampant. Earlier this month, a group of thirty women engineers who identify as Dalit and who work for tech companies like Google, Apple, Microsoft, and Cisco issued a public statement to the Washington Post stating they had faced caste bias in the U.S. tech sector.80 Other Dalit employees have described their fears of being “outed” in the workplace, as well as subtle attempts to discern their caste based on so-called “caste locator[s],” such as the neighborhoods where they grew up, whether they eat meat, or what religion they practice.81 The risks of caste discrimination against oppressed-caste employees are exacerbated in professions with high numbers of South Asians, where programmed attitudes about caste superiority and inferiority can easily take hold. With this subtler, more insidious discrimination taking root, we must determine what recourse exists in the law to combat it.
II. Title VII’s Coverage of Caste
To answer the legal question, we first look at the statute. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin.82 Thus, for caste discrimination to be cognizable under Title VII, it must be cognizable as discrimination based on at least one of these grounds. The challenge is to determine which if any of these grounds encompasses caste discrimination.
Following the Supreme Court’s decision in Bostock v. Clayton County, our determination whether caste discrimination is cognizable under any of these grounds is governed by the text of the statute.83 Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”84
The first question in determining coverage under Title VII is whether caste is in fact simply reducible to one of these categories. If not, the next question is whether caste discrimination satisfies the but-for causation test with respect to one of these categories.85 As the Bostock Court explains:
[But-for] causation is established whenever a particular outcome would not have happened “but for” the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.
This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident occurred both because the defend-ant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to the challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.86
Finally, we can ask whether caste is “conceptually” dependent on one of these categories.87 For all these questions, we may consider the original expected applications of the statute, but we are not limited to those expected applications.88 Rather, we are led by the fair and reasonable meaning of the plain text, even if that goes beyond the expected applications.89
As a preliminary determination, we can remove “sex” from the picture. Whatever caste discrimination is, it is self-evidently not on the basis of sex. At a first level, caste discrimination is not simply reducible to sex. Further, caste discrimination can be levied upon actors regardless of their sex, and without any appeal to their sex. Consequently, it meets neither the but-for causation test nor the conceptual dependence test. Of course, a person may experience discrimination based on caste and sex — for example, a Dalit woman may experience harassment based on both features of their identity. That raises questions of mixed motivation, addressed below.90 But discrimination on the basis of caste alone does not necessarily implicate questions of sex.
That leaves national origin, race, color, and religion for our further investigation. We consider each in turn.
A. National Origin
We first contend that there is a plausible argument that caste discrimination constitutes discrimination on the basis of national origin.
Importantly, discrimination based on being South Asian is cognizable as discrimination based on “national origin.”91 This may at first glance seem like an odd conclusion, since South Asia is not itself a nation. On this point, the EEOC explains: “National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).”92 On this account, discrimination based on South Asian identity is clearly national-origin discrimination.
That said, straightforwardly, caste identity is not simply reducible to being South Asian. It is a further qualification of one’s South Asian identity.
In addition, the but-for test can be used to argue that caste discrimination is a form of national-origin discrimination, because it would not occur “but for” one’s national origin. Specifically, but for the employee having an ancestor who had a particular caste identity defined and dictated by South Asian culture and practice, the employee would not have been discriminated against. More simply, but for the employee having a particular South Asian heritage (that is, their involuntary membership in a South Asian caste hierarchy), the employee would not have been discriminated against. So that is national-origin discrimination.
And on the conceptual test: one cannot understand the employee’s caste identity without appeal to certain features of South Asian culture — thus, caste identity is conceptually dependent on South Asian identity and is therefore national-origin discrimination.
B. Race
What exactly “race” is, and how “races” are properly defined, is an almost impenetrably difficult question.93 There are compelling accounts of the caste system as, at its genesis, based on some variety of racial categorization, even if primitive.94 And there are other accounts that claim that race is orthogonal to caste.95 Resolving the question of whether caste is in fact reducible to or based on race would prove controversial, and so finding caste discrimination is racial discrimination because of caste’s relationship to race is an equally controversial proposition. Consequently, here, we do not pursue that type of argument.
There is however another sense in which caste may be simply reducible to race. If “race” means something like a group distinguished by ancestry,96 then caste will select a particular “race,” because caste is a hereditary system that relates to ancestry.97 The EEOC has suggested such an understanding of “race”: “Title VII does not contain a definition of ‘race.’ Race discrimination includes discrimination on the basis of ancestry or physical or cultural characteristics associated with a certain race, such as skin color, hair texture or styles, or certain facial features.”98
The Supreme Court’s decision in Saint Francis College v. Al-Khazraji99 supports the contention that discrimination based on “race” would be interpreted to include discrimination on the basis of “ancestry.” There, a professor — who was a United States citizen born in Iraq — filed suit alleging that his denial of tenure was based on his Arabian heritage and thus constituted unlawful discrimination under 42 U.S.C. § 1981.100 The district court dismissed the complaint, ruling that a claim under § 1981 could not be maintained for discrimination based on being of the “Arabian race.”101 The Court of Appeals for the Third Circuit reversed, holding that the complaint properly alleged discrimination based on race. In so doing, the court of appeals explained that § 1981 was not limited to present racial classifications. Instead, the statute evinced an intention to recognize “at the least, membership in a group that is ethnically and physiognomically distinctive.”102
The Supreme Court affirmed the court of appeals’ decision and holding that discrimination based on “Arabian ancestry” is racial discrimination under 42 U.S.C. § 1981.103 The Court stated that the court of appeals “was thus quite right in holding that § 1981, ‘at a minimum,’ reaches discrimination against an individual ‘because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens.’”104 The Court cautioned, however, that this was sufficient but not necessary, and that in this case Arab heritage was sufficient because the statute evinced that Congress intended to protect people from discrimination “because of their ancestry or ethnic characteristics.”105 Indeed, the Court may have been eschewing a biological or genetic conception of race, in favor of an understanding predicated on social construction. To this point, the Court noted:
Many modern biologists and anthropologists, however, criticize racial classifications as arbitrary and of little use in understanding the variability of human beings. It is said that genetically homogeneous populations do not exist and traits are not discontinuous between populations; therefore, a population can only be described in terms of relative frequencies of various traits. Clear-cut categories do not exist. The particular traits which have generally been chosen to characterize races have been criticized as having little biological significance. It has been found that differences between individuals of the same race are often greater than the differences between the “average” individuals of different races. These observations and others have led some, but not all, scientists to conclude that racial classifications are for the most part sociopolitical, rather than biological, in nature.106
Thus, it seems that the Court understood ancestry discrimination as a type of racial discrimination.107 And under the Court’s understanding of “ancestry or ethnic characteristics,” even if formed primarily due to sociopolitical forces, caste would qualify as ancestry, and thus caste discrimination as ancestry discrimination and “race” discrimination.108
Of course, the current Supreme Court may not accept this formulation of race as including “discrimination on the basis of ancestry” or an “ethnic[] and physiognomic[]” subgrouping. Indeed, it is plausible that the Court would interpret “race” to be rooted in racial classifications that were salient in the American experience at the time of the Act’s passage.109 The new Court could disclaim its decision in Al-Khazraji. Or the Court might decide that, while “Arabian” ancestry was salient at the time of the Act’s drafting, South Asian caste was not.
Notwithstanding, in light of the Court’s precedent and the EEOC’s definition of “race” as encompassing ancestry discrimination, there remains a sound basis to find that discrimination based on South Asian caste is encompassed within Title VII’s category of “race.”
C. Color
The analysis of whether caste discrimination is discrimination based on “color” is similar to the analysis under “race.” Just as with “race,” it likely rises or falls based on controversial questions about the nature of caste, along with difficult questions about the meaning of “color.”
Like “race,” “color” is not defined by Title VII. The EEOC explains that “[c]olor discrimination occurs when a person is discriminated against based on his/her skin pigmentation (lightness or darkness of the skin), complexion, shade, or tone. Color discrimination can occur between persons of different races or ethnicities, or even between persons of the same race or ethnicity.”110
Based on the EEOC’s interpretation and a fair interpretation of the text, it does seem that for caste discrimination to be discrimination on the basis of “color” it must be related to discrimination based on skin “pigmentation . . . , complexion, shade, or tone”111 (which, for ease, we call “visual skin color”). Finding that caste identity is related to visual skin color is difficult.112 There is some empirical support for the claim,113 but at the moment the strength of that relationship is uncertain.114 As a historical matter, varna has one definition which literally translates to “color.”115 If this referred to visual skin color, then there may be a strong basis — grounded in history and continued by a hereditary, endogamous system — to find caste discrimination as a type of color discrimination. But the consensus scholarly view seems to be that varna did not refer to skin color.116
As a result, and based on our current understanding, we contend that for purposes of interpreting Title VII, caste discrimination is not best understood as discrimination on the basis of “color.”
D. Religion
What about religion? We contend that there is a plausible argument that caste discrimination can be viewed as discrimination based on religion.
Importantly, discrimination on the basis of religion can be on the basis of religious heritage.117 That is, if an employee is discriminated against because their ancestors had particular religious beliefs or had a particular religious association, that is religious discrimination, even if the employee does not have those beliefs or accept that association.
Now, suppose a manager discriminates against an employee for their caste identity. The employee has the caste identity of being a Shudra or a Dalit. We know that is a feature of their religious heritage, and so we need not further ask whether the employee has any particular religious beliefs or accepts the association. The question is firmly whether this feature of their heritage is religious heritage. We think it is.
First, caste identity is inextricably linked to religious practice. Caste identity places one in a particular (complex) hierarchy in how they are viewed within a religious community, and in religious terms such as purity, pollution, and piety. In particular, someone being a Shudra or a Dalit means that they are, due to bigotry, seen as occupying a lesser position or role in their religious community — whatever their religion is. Historically, access to places of worship has, and continues to be, closely linked to one’s caste identity.118 And it is a core facet of caste that it places one in that hierarchy. Consequently, discrimination based on caste is discrimination based on one’s role in their religious community — and that is religious discrimination.119
An example may clarify: Suppose an employee of unknown religion confesses to their manager that their clan is seen as the lowest in their religious community — but the employee gives no further details about their religion. The manager is disgusted by this and fires them. In so doing, the manager is discriminating against the employee because of a facet of their religious identity. Even though the manager is largely ignorant of the employee’s religious identity, that is still plainly religious discrimination.
In a similar vein, we might also argue that caste identity always qualifies one’s religious identity. It is, in a sense, being part of a particular sect of a religion. Understood thusly, it is pellucid that caste discrimination should constitute religious discrimination.
Now one might object that caste identity is compatible with different religious identities. For example, one can be a Shudra or a Dalit and be of many different religious backgrounds — among other things, Hindu, Jain, Sikh, Christian, Muslim, Buddhist. What if the manager does not care at all about the employee’s religion? Would this take caste discrimination outside the scope of religious discrimination?
We think not. First, as argued above, we think that caste discrimination is discrimination based on position in religious society — and thus is religious discrimination. But caste also impacts other parts of one’s life, so the objecting manager may protest that religion has nothing to do with their motivations. Even still, we think the argument is unavailing for another reason: because caste relates to religious heritage. That is, to discriminate against someone based on caste is usually to discriminate against them on the basis that they had an ancestor who occupied a certain position in Hindu society. This is for the simple fact that the caste system is inherited from Hindu society — and one’s caste identity arises from ancestors who occupied a certain position in that Hindu society. We contend that this is religious discrimination. That is because we understand discrimination based on religious heritage as discrimination on the basis of religion, irrespective of the employee’s actual beliefs.120 But this may also be properly considered discrimination on the basis of ancestry, and therefore as discrimination on the basis of race or national origin. Important here is to recognize that there may be overlap between these categories.121
In light of that, we can put this idea simply in terms of the but-for test: But for the employee having an ancestor who had a particular caste identity as defined and dictated by Hindu religious practice, the employee would not have been discriminated against. Ergo, but for the employee having a particular Hindu heritage, the employee would not have been discriminated against. Hence, had the employee’s ancestors not been Hindu, the employee would not have their caste identity (that was the subject of discrimination). That is then clearly religious (heri-tage) discrimination.
The conceptual test reaches the same conclusion: one cannot understand the employee’s caste identity without appeal to certain Hindu ideas — thus, caste identity is conceptually dependent on religious practice and is therefore religious discrimination.122
E. Mixed Motivation
One’s caste identity may be determined by myriad features, other than purely ancestral traits. Their caste identity could, for example, be defined by adopted religion, where one lives, and what languages one speaks, among other things.123 Bhimrao Ramji Ambedkar, himself a Dalit, converted to Buddhism from Hinduism because he believed caste discrimination was endemic to Hinduism.124 In addition to his own conversion, Ambedkar led a mass conversion movement, called the Ambedkarite Buddhism movement (or the Dalit Buddhist movement).125 Those who were or are part of that movement may identify as Dalit Buddhists, due to their ancestral Dalit identity and their non-ancestral trait of their religious beliefs.
Discrimination against someone based on this combined identity — here, being a Dalit Buddhist — will in the vast majority of cases satisfy the but-for causation test with respect to the ancestral portion of their caste identity. For example, we could imagine someone who discriminated against a Dalit Buddhist, but not a Dalit Hindu nor a non-Dalit Buddhist. The discriminator’s motivation for discrimination is not simply that the employee is a Dalit, but that they are a Dalit who flouted Hindu identity by converting to Buddhism. However, in such an example, but for the person’s Dalit identity, they would not have been discriminated against.126
One common strategy to defeat recognizing discrimination on mixed-motivation is to disentangle the purportedly separate motivations and then question each in isolation. For example, suppose an employee claims she is being discriminated against for being a Black woman, but the employer also discriminated against non-Black women as well as Black men. Applying a “divide-and-conquer” strategy, the employer may be able to undermine but-for causation on either of the bases of being Black or being a woman, by using non-Black employees (including discriminated-against women) as comparators for assessing the racial component of her claim, while using male employees (including discriminated-against Black men) as comparators for the gendered component. A similar argument might arise against the Dalit Buddhist, where the employer discriminates against non-Buddhist Dalits as well as non-Dalit Buddhists.
Here, Professor Kimberlé Crenshaw’s work is critical and illuminating. Among her observations, she recognized that discrimination across multiple axes of identity may result in particularly pernicious treatment for the targets of such discrimination.127 Crenshaw’s theory of intersectionality may allow targets of multiaxial discrimination to use comparators who suffer discrimination, but not as severe, to ground their claims.128 In our examples, if Dalit Buddhists are treated more severely than Dalit non-Buddhists and non-Dalit Buddhists, they can still ground their claim as they suffer worse treatment than these comparators.129
Conclusion
Caste discrimination is in our midst in the United States. Given the nature of caste, which seeks to indelibly mark and stigmatize, this discrimination reaches all facets of life, and thus, it is no surprise that it enters our workplaces. This issue requires our collective awareness and our vigilance. We have argued that Title VII gives us the tools to ensure that we can prevent, rectify, and ensure restitution for caste discrimination. In particular, we have shown how under the text of Title VII, 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.
While these arguments are strong, given that judicial interpretation of Title VII’s protections are in flux, the surest way to ensure that workers who experience caste discrimination are able to access recourse is to explicitly enshrine “caste” as a prohibited basis of discrimination, in both executive-branch policy and in the text of Title VII itself. The EEOC could issue an opinion letter or guidance clarifying that Title VII’s provisions prohibiting race, national origin, and/or religious discrimination forbid discrimination on the basis of caste. An even stronger protection, of course, would be for Congress to pass legislation that explicitly states that caste discrimination is unlawful under Title VII. Even in this time of extreme partisanship, this is uncontroversial and should garner bipartisan support.130 Furthermore, though we do not contend that EEOC guidance or amending Title VII thusly would serve as a magic-bullet solution to a complicated, deep-rooted problem, it would have an important signaling effect, putting workplaces on notice that caste-based discrimination is real and must be vigilantly addressed. Finally, although we address South Asian caste discrimination in particular, there are other types of “caste” and ancestry discrimination that occur around the globe.131 We think that this case study of caste discrimination, and how it may be addressed by Title VII, applies generally. In that spirit, both the executive branch and Congress should act to clarify that all varieties of global “caste” discrimination are unlawful and intolerable in a just society.
* Assistant Professor, South Texas College of Law.
** J.D., 2013, Yale Law School. The views expressed in this Essay represent solely the personal views of the authors.
The South Asian caste system was and is a paradigm of injustice. It has perpetuated incomprehensible suffering. We wish to acknowledge that we are, as a matter of ancestry, members of the dominant Brahmin caste — a designation that has conferred upon us systemic privilege we have done nothing to deserve.
We would like to thank Susannah Barton Tobin, Mitchell Berman, Anisha Gupta, Alexander Platt, Charles Rocky Rhodes, Peter Salib, Anuradha Sivaram, and Eric Vogelstein for insightful comments and questions. We would also like to acknowledge the pathbreaking work of Equality Labs on these issues, which served as an inspiration for this Essay.