Why is caste not a subset of national origin or race? Do Indians who discriminate on the basis of caste also discriminate against non-Indians of a lower caste, or is it solely confined to other Indians? If not directly a protected class, why would this not clearly be a disparate impact type of case?
Morally, it may be obvious to us that that's how it should be, but the law doesn't work like that. The law runs on precedents. Taken another way, the law is like code. The "architects" of the code are the legislature who write the laws, and the "programmers" are the judges, who decide exactly what goes in the if-else conditions, based on their interpretation of the law, and those become precedents the next time someone revisits that condition.
The U.S. law on the matter doesn't explicitly mention caste. There are constitutional originalists who take a very "conservative" approach to applying the law, and they might say it isn't illegal until the law is changed to explicitly forbid caste discrimination. When I was growing up, I knew some conservative Indians who would've taken that stance.
The Cisco discrimination suit is the first test of the law, and is likely setting the first precedent. Apple has decided its position (make of that what you will), and chosen to get ahead of the game.
Applicable precedent is basically already set for this, especially in the liberal Ninth Circuit. This is the language of Bostock regarding LGBTQ discrimination, decided in 2020 6-3 and written by a conservative constitutional originalist (Gorsuch):
"An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters' imagination supply no reason to ignore the law's demands. Only the written word is the law, and all persons are entitled to its benefit."
Replace "homosexual or transgender" with "different caste" and "different sex" with "different race/national origin/ancestry (in California, ancestry is a protected class)" and the passage quite obviously still applies:
An employer who fired an individual for being [from a different caste] fires that person for traits or actions it would not have questioned in members of a [different race]. [Race/National origin] plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters' imagination supply no reason to ignore the law's demands. Only the written word is the law, and all persons are entitled to its benefit.
I think that word replacement, in a court of law, might be harder to do than you think because caste is not officially recognized by American law. I'm not sure how you could prove equivalence without a definition to work from.
I don't think a subset is a protected class. If you don't want to hire/promote/etc people from Oklahoma, that's not explicitly prohibited, because state origin isn't a protected class.
If you only hired/promoted/etc people from upper castes, that would be discrimination on national origin, because anyone who isn't from the historic India region wouldn't be eligible. But if you're promoting upper castes and not lower castes, and you promote people from outside the region, there's not a clear discrimination on national origin. I'm an outsider to the caste system, but I don't think caste is considered to be the same as race? Especially not in the US, where federal race has very limited categories {(select one: Hispanic/Latino, not Hispanic/Latino), (select at least one: American Indian/Alaska Native, Asian, Black/African American, Native Hawaiian/Other Pacific Islander, White)}.
Of course, IMHO, the underlying anti-discrimination intent is to treat people based on their skills and abilities etc, not based on the circumstances of their birth, and discriminating based on caste is clearly not within that intent.
The argument is not that caste is the same as race but that the use of caste as a marker is an additional burden placed ONLY on Indian employees and is therefore based on race or national origin. If you promote only upper-class Indians and no lower-class Indians while promoting other races regardless of caste then you are discriminating against Indians because other races/national origins do not have to clear the additional caste hurdle.
> Of course, IMHO, the underlying anti-discrimination intent is to treat people based on their skills and abilities etc, not based on the circumstances of their birth, and discriminating based on caste is clearly not within that intent.
This is what really bugs me about DEI policies and the people who advocate for them. A lot of comments seem to say "well, caste isn't a protected class so they didn't know what to do," which to me means "the company isn't afraid of getting sued for explicit discrimination because it isn't illegal, so no one is going to do anything."
HR is not interested in making things more diverse, or helping the oppressed, or any other "good thing" that DEI claims to do. They are interested in preventing lawsuits. It is disgusting to me that so many people seemingly know this full well and still advocate for DEI policies as if their HR department was founded by MLK.
> A lot of comments seem to say "well, caste isn't a protected class so they didn't know what to do," which to me means "the company isn't afraid of getting sued for explicit discrimination because it isn't illegal, so no one is going to do anything."
The company is probably also afraid of getting sued for firing the Indian person doing the discrimination that's not explicitly prohibited. With the right presentation, that looks like discrimination based on national origin, because only Indian origin people would be fired for caste discrimination.
Sure, I completely understand that. But a wise man once said:
> Of course, IMHO, the underlying anti-discrimination intent is to treat people based on their skills and abilities etc, not based on the circumstances of their birth, and discriminating based on caste is clearly not within that intent.
I think we agree and I appreciate the insight. I am just very against deceptive advertising, and the way people advocate for DEI policies seems very deceptive to me.
Yeah, I think we agree. HR is likely to follow the explicit portions of the law, and not follow the intent, and that's part of what makes DEI policies often feel hollow or performative. I had to take a 'managing within the law' course given by HR at a big corp once, and it was immensely clear what they were most concerned about, and also immensely clear that I didn't want to be associated with being in management ;) From the HR perspective, their job is to reduce employee lawsuits, and managers are their tool to gather information so that HR can do their job effectively. I'd rather just be in charge of computers and not people, thanks.
The rough equivalence in american terms is probably someone from a well established New England family discriminating against an underprivileged southerner assuming both are white.
If you’re not Indian you don’t have a caste. Discrimination against you would be covered under other forms of discrimination (national origin, religion, color, etc..).
"Ivy league" isn't quite as closed as the caste system, but multi-generational matriculation is at least perceived as common, pop culture equates attending one of a select number of universities with success/intelligence/power/wealth, and 8/9 SCOTUS Justices graduated from 2 law schools. You also get a hierarchy of social standing with Ivy league at the top, community colleges and no-college at the bottom, and some arcane ordering of various public and private institutions in between which you need to be a cultural insider to parse.
My understanding is that non-Indians are simply outside the caste system entirely. So to the extent that there are Indians who view themselves as better than non-Indians, that's less caste discrimination and more good old fashioned racism.
Do you know of any Indians who treat all non-Indians as inferior? My understanding is that non-Indians are judged based on their skin color. That is most certainly racism, but not based on nationality.
Another thing that puzzles me is how you differentiate caste discrimination from racism. The underlying motivations are different. But the treatment, politics and tactics used are almost the same in both cases. I'm curious about your perspective on these.
Personally I think they're the same - equally abhorrent, and people who act that way should be shunned from the industry entirely (there's a comment I made I think a week ago saying basically the same thing).
Legally though, racism == illegal discrimination while caste discrimination == legal discrimination.
I'm not a lawyer, and have no idea if there is already precedent in the US specifically regarding castes, but there is a motion that national origin covers ancestry.
It's entirely possible that the legal department in the story above thought it was a cut and dry case and that's why they pushed hard to shut it down before it became one.
Yeah it sounds like legal saw it as cut and dry at least that he could be fired (and possibly that they also had a requirement to do so), while HR folks were making nonsensical arguments of the kind we're seeing here from non-lawyers.
It’s not that it is or it isn’t. The US legal system is based on precedent so if there’s little history of previous cases where this was decided then it’s very hard to know how it will go in court.
Everyone loves citing precedent but nobody wants to be the first one to try and set it.
