Two Truths & A Lie: U.S. Laws About Caste
Interrogating the basic assumptions about U.S. laws banning caste discrimination
Last month, the City of Seattle became the first municipality in the U.S. to ban caste discrimination. The crowd erupted in chants of “Jai Bhim” as councilmembers read out their 6-1 vote, making history. This triumph follows the adoption of caste protections by several universities and workers unions, representing how popular the movement to extend U.S. civil rights to caste has become. It’s also seen significant controversy. Last year, I did a policy analysis on the prospect of caste protections in U.S. law, how they might function, and any consequences they could cause. Diving to the most basic assumptions of this policy, I encountered two truths and a lie.
Truth: Specificity Helps
Though caste is absent from U.S. civil rights legislation, there is plenty of evidence that the U.S. is legally and morally opposed to caste-based discrimination. The problem of “caste” (as an analogy to race) was historically invoked in abolitionist and anti-segregation efforts—including 1849 case Roberts v. Boston, the first school segregation case in U.S. history, and congressional arguments for the Civil Rights Act of 1866. In 2007, the U.S. Congress passed a resolution expressing they are, “committed to eliminating [caste discrimination], ensuring that qualified Dalits are not discouraged from working with the U.S. government.”
Additionally, a number of legal scholars concluded that caste-based discrimination qualified as racial discrimination under Title VII of the 1964 Civil Rights Act by analyzing the 2020 Supreme Court case of Bostock v. Clayton County. Based on the ruling that discrimination on the basis of sexual orientation or gender identity is only protected because it is inextricably intertwined with the protected category of “sex,” caste is similarly intertwined and protected by “race, national origin, or ancestry.” This is the same logic that California’s Civil Rights Department (CRD) used when they sued Cisco Systems, Inc. on the basis of caste-based discrimination. If all this is true, why add “caste” expressly to our laws? There’s a significant benefit to being specific.
When the California State University system moved to add “caste” to their nondiscrimination policy, one Dalit professor admitted to VICE News: “Since we did not [previously] have caste as a protected category, many of us were not open about sharing.” Dalit employees in Silicon Valley expressed similar reluctance to report discrimination due to the void of caste protections. Without clear, specific legislation, individuals are obstructed from understanding their rights and how to seek redress if those rights are violated. Bostock’s precedent might be understood by lawyers, but the layperson’s concept of Title VII doesn’t stretch that far. And it shouldn’t have to.
Explicit legislation also helps prosecutorial bodies use the full force of the law to eliminate discrimination, which are stated goals by many state agencies, like CRD. California’s Fair Employment and Housing Act (FEHA) specifies categories like gender identity, gender expression, and sexual orientation for this same reason—though they aren’t expressly protected under Title VII. The only reason not to adopt laws banning caste-based discrimination is to assume it’s preferential to keep these protections implicit. This only constrains civil rights agencies from administering the law and keeps more South Asians in the dark about their rights. It’s worth noting that ambiguity has been misused before. While caste is internationally protected under antidiscrimination law, the specific language used is usually more neutral and Eurocentric, so the Indian government has seized on this ambiguity to oppose extending anti-discrimination efforts to caste.
Truth: The Law Sets a Moral Benchmark
Most American political disputes can be solved through consequentialist, “Coasian" problem-solving (basically, bargaining between stakeholders), but certain issues—especially ones concerning power—warrant deontological interventions. Deontology is a moral philosophy that uses rules to distinguish between what’s right or wrong. Whereas a consequentialist policy might aim to reduce drug trafficking by legalizing and regulating drug sales, a deontologist policy would simply ban drug trafficking as a crime. Deontology defines the kind of society we aim to live in, which matters for issues like discrimination.
A series of 2013 studies found that U.S. antidiscrimination laws decreased discrimination based on sexual orientation not because people feared punishment, but because those laws authoritatively set the moral and social norms of a community. Civil rights legislation of the 1960s had the same effect. The law makes normative claims about morality, dictates state duties, and shapes social attitudes—all of which sets society’s moral benchmark. This is no panacea, but the signaling effect of the law reminds us about the kind of society we live in—or hope to live in. Given the weight of U.S. law, it’s also likely that this signal could influence workplace policies or laws in South Asia to rigorously address caste-based discrimination on their own turf.
Dalits, like other disenfranchised groups, should have the most skepticism about the utility of such laws; untouchability was legally abolished in 1950 in India, but persists in a countless covert and overt ways. Yet the joy exuding from Seattle’s City Hall upon the passage of the caste ban speaks of hope. The law still matters as a social contract that upsets social fictions imposed by the powerful, like caste.
The strength of a “ban” cannot be underwritten. When a colleague of mine helped organize to ban no-knock warrants in Pomona, California (no-knock warrants authorize law enforcement officers to forcibly enter a premise without knocking and announcing their presence, and often result in injury and harm), she informed a young girl from her neighborhood who previously suffered from a no-knock raid: “This will never happen again.” Not “mostly never happen” or “except for certain circumstances,” but never. If you can imagine what that girl might feel—that is what protection looks like.
Lie: Banning Caste Discrimination Discriminates
As uncontroversial as a bill banning discrimination might seem, it has its opposition. The primary argument leveraged by opponents of caste protections is this: by banning caste—a social reality occurring only among South Asians—U.S. law effectively paints a target on all South Asian Americans, and particularly Hindu Americans. This means that a law banning caste discrimination, in turn, discriminates against South Asians. Groups like the Hindu American Foundation (HAF) and Vishwa Hindu Parishad have advanced this idea to resist the adoption of caste into U.S. law, workplace nondiscrimination policies, and more. But it’s a lie.
HAF is right to note that “caste” is prevalent primarily among South Asians, but caste can also broadly characterize other forms of intra-group or descent-based discrimination. It can be understood as a generally occurring descriptor (like ancestry or race), or a more specific version of these categories (like FEHA specifies gender identity and gender expression as related to sex). But even if only South Asian Americans identify with castes, it’s still an objectively meaningful enough category to be protected in the event of discrimination.
It’s also unlikely that Hindus would be singled out in the administration of such a law, which HAF alleges. In cases like Employment Division v. Smith and Church of Lukumi Babalu Aye v. City of Hialeah, the U.S. Supreme Court has expressed that while religious practice cannot be singled out for adverse treatment, formally neutral laws of general applicability can regulate religious conduct—regardless of any adverse effects on a religious exercise. In other words, Hindus would be required to abide by a law banning caste, but not singled out among other groups during a prosecutorial process. Prosecuting discrimination involves discerning motive and cause, and it is only then that one’s caste identity or religion would be called into question—not at any point before. Just as one needn’t disclose their religion at any point prior to prosecution of religious discrimination, one needn’t disclose their caste either.
Hindu groups cannot claim that caste discrimination is virtually nonexistent in their communities and that they would be unfairly policed under this law. If caste-based discrimination is not prevalent, then declaring it unlawful should do little harm. While caste protections benefit Dalits and other caste-oppressed individuals, all members of the caste hierarchy technically benefit from this policy—even those who are caste-privileged! To be protected against discrimination based on caste is to have a right to recourse when it happens, regardless of what caste or religion one is.
In his autobiography Waiting for a Visa, B.R. Ambedkar wrote, “My five years of staying in Europe and America had completely wiped out of my mind any consciousness that I was an untouchable.” Over a century later, Dalits in the U.S. don’t have the same experience. They are reminded in their workplaces, classrooms, places of worship, and social groups, that they could still fall victim to caste hate and discrimination. In the same way that Ambedkar did, Dalits around the world still await a visa—a ticket to a land where they are full citizens, free from caste. Caste protections could be that ticket.