Bostock v Clayton County Game Changer: US Federal Employment Law Now Covers Caste Discrimination Based on Untouchability

Abstract

The California Department of Fair Employment and Housing (DFEH) sued Cisco Systems, Inc. regarding its discriminatory treatment of its employee John Doe, a Dalit (this group was formerly known as “outcastes” or “untouchables”). Before the summer of 2020, asserting an employment discrimination claim of intentional caste discrimination based on untouchability would have been very contestable. However, the legal analysis utilized by Justice Neil Gorsuch, for the Supreme Court’s decision of June 15, 2020 in Bostock v Clayton County appears tailored to the issue of whether the alleged employment discrimination suffered by Dalits fits within the prohibitions of Title VII and 42 USC $1981. Applying a textual analysis of Title VII, the Supreme Court concluded that discrimination against gays, lesbians and transgendered individuals meets the definition of sex discrimination because a person’s status as gay, lesbian or transgendered is inextricably entwined with their sex. Thus, while being homosexual or transgendered is a “but for” cause of their discrimination, their sex is another one. Caste discrimination based on untouchability derives from the dominant version of Hinduism that stems from India’s 3,000-year-old caste system. For simplification, in orthodox Hinduism the “caste system” consists of four distinct ‘varnas’ or major occupational groupings, also known as castes, with Dalits constituting a fifth caste outside the four-fold system. Dalits, who make up about 16.5 percent of India’s population, have traditionally occupied the very bottom levels of the caste structure and thus, India’s social-economic structure. The status of Dalits is associated with occupations historically regarded as ritually impure. For thousands of years, Hindus believed that Dalits were religiously polluted and this pollution was contagious. In the modern parlance of the COVID-19 era, Caste Hindus engaged in extreme social distancing measures to avoid contact with Dalits, including staying far enough away so that a Dalit’s shadow (six feet) did not touch them. Since this religious pollution stemmed from birth, Daltis, even today, cannot escape it by deed, increase in educational credentials or rise in social or economic standing. Caste discrimination is a mostly hidden form of discrimination in the US. As Indians emigrated from South Asia to other parts of the world, including the US, they brought their beliefs with them, including those about the caste system. There are now over 4 million people of Indian descent in the US. However, experts estimate that Dalits make up less than 2 percent of those of Indian descent. Nevertheless, as the number of Indian immigrants has increased, so have the incidences of caste discrimination based on untouchability. Dalit activists and their supporters throughout the world have advocated for global recognition of the discrimination they face not just in India, but other countries where they reside. But, caste discrimination does not fit neatly into the normal categories of discrimination of race, ethnicity, national origin or religion. As a result, a number of western countries have struggled to find legal protection for the discrimination Dalits encounter. And, India does not provide legal protection against caste discrimination by private employers. This article is the first major work to address the issue of caste discrimination based on untouchability under Title VII and Section 1981 in the aftermath of Bostock. In doing so, it asserts that caste discrimination based on untouchability is now illegal under both Title VII and Section 1981. Because of the prodigious international weight of US law, from a global perspective for the 200 million plus Dalits in India alone and the Dalit diaspora, a determination that US federal employment discrimination law now bans caste discrimination based on untouchability will have incalculable global ramifications. Thus, this article will also quickly draw huge international attention.