Existing Legal Guidance
Whether caste is a component of categories or classes already protected by law, such as race, religion, national origin, or ancestry, or whether it is genuinely unique and different, is hotly disputed. Legal guidance on this topic is scant: Neither the U.S. Department of Education nor the Equal Employment Opportunity Commission has weighed in, and there is limited relevant case law.
In 2005, the U.S. District Court for the Eastern District of Michigan considered claims brought by a university faculty member who had filed an internal complaint of discrimination on the basis of immigration status, race, religion—and caste, which was not a protected category under his university’s nondiscrimination policy. In granting summary judgment to the defendant, the court acknowledged, but did not resolve, this issue, observing:
While the concept of caste may “relate to” . . . race, ethnicity, ancestry, and national origin, it does not comprise one of those protected classes under Title VII or [state law]. Because two similarly-situated individuals who are of a different caste may well be of the same race, religion, gender, national origin, and ethnicity, any disparate treatment between those individuals would be on the basis of caste, the only differentiating characteristic.
See Mazumder v. Univ. of Michigan, Case No. 03-CV-71775-DT, 16 n. 8 (E.D. Mich. Mar. 28, 2005); aff’d 195 F. App’x 320 (6th Cir. 2006). The court considered that caste may be “tantamount to socio-economic status, an unprotected characteristic,” but ultimately concluded that “for purposes of addressing Plaintiff’s discrimination claims, the Court need not and does not determine whether caste is a protected category under Title VII or [state law].” Id.
Recent litigation in the Central District of California—where, for important context, an effort to include caste as a component of ancestry in California’s nondiscrimination law was recently vetoed by Governor Gavin Newsom—may prove to be instructive. In that case, Kumar, et al. v. Koester (2:22-cv-07550-RGK-MAA), two California State University professors challenged their university’s policy, which prohibits discrimination based on “Race or Ethnicity (including color, caste, or ancestry).” The plaintiffs argued that the policy:
- uniquely targets those who are or are perceived to be South Asian or Hindu;
- defines Hinduism as including caste, which they describe as inaccurate and unconstitutional;
- fails to define caste, which they say is not a well-understood term;
- is unnecessary, as the university already precludes discrimination based on ethnicity and religion, and as neutral and generally applicable alternatives pertaining to social or economic status are available; and
- will necessitate the university ascribing a caste to individuals such as the plaintiffs, who do not identify as being members of any caste, in the event they are involved in an allegation of discrimination based on caste.
On July 25, 2023, the court ruled on the defendant's motion for judgment on the pleadings. The court dismissed the plaintiffs’ equal-protection claims, holding that the plaintiffs lacked standing because abstract stigmatic injuries—here, that the policy would promote a stereotype of South Asians and Hindus participating in and reinforcing a discriminatory hierarchy—do not confer standing in equal-protection cases. The court rejected the plaintiffs’ argument—that the policy was constitutionally defective because it did not cover individuals who were affected by class or social status discrimination, but who were not Hindu or South Asian—because this was not the source of any injury to the plaintiffs themselves, as they were Hindu and South Asian. The court also dismissed the plaintiffs’ free-exercise claims, because the policy’s prohibition on discrimination based on caste was concededly consistent with, not in opposition to, the plaintiffs’ religious beliefs.
The plaintiffs’ establishment and due-process claims proceeded to trial on the briefs. The court had determined that under the relaxed pleading standard for First Amendment claims, abstract stigmatic injury was sufficient to confer standing for the plaintiffs’ Establishment Clause claims. Also, the plaintiffs had adequately made out a vagueness case for their due-process claims, with the court observing that it was hard for the defendant to argue that the term “caste” was not susceptible to many meanings, as numerous meanings had been proposed by the parties to the litigation themselves.
These early rulings lend support to some of the plaintiffs’ core arguments against the adoption of the policy: that alternatives to combat discrimination based on caste were available, and that by adopting a term unfamiliar to many members of the university community, the university would need to adopt a clear definition, supported by training—which could then lead to further stigmatization by defining a discriminatory practice of substantial enough concern to warrant inclusion in university policy as uniquely contextualized within Hindu or South Asian identity.
Ultimately, however, the plaintiffs’ claims failed, and the court entered judgment for the defendant. With respect to the plaintiffs’ Establishment Clause claims, the court concluded that the policy did not amount to government disapproval of Hinduism, because “caste” can be “readily defined without reference to Hinduism,” demonstrating that “the use of the word, by itself does not evince any impermissible hostility.” The court was also not persuaded by the fact that, in the plaintiffs’ view, some stakeholders had demonstrated “anti-Hindu sentiments,” because even if the purported statements had been “anti-Hindu,” there was nothing attributing such sentiments to the decision-makers. Finally, the court concluded that the plaintiffs had failed to demonstrate that the policy “defines Hindu doctrines” because “[n]o reasonable reader would conclude” that the prohibition of discrimination based on “Race or Ethnicity (including color, caste, or ancestry)” constituted a definition of Hinduism as including a caste system.
With respect to the plaintiffs’ due-process claims, the court concluded that, under the more stringent analysis applicable at that stage of the proceedings, the plaintiffs failed to establish standing, and the court dismissed those claims for lack of subject-matter jurisdiction. Specifically, the court held that the plaintiffs faced no credible threat of discipline pursuant to the policy because they “believe that Hinduism requires them to treat all people equally” and as such had “articulated a desire to comply” with the policy; because they had been practitioners of Hinduism throughout the course of their employment “yet have never faced any allegations of discrimination”; and because the court credited the defendant’s expert witness’s testimony that “draconian or punitive” implementation of the policy was unlikely.
These latter rulings, then, illustrate different points: the relevance of the “legislative history” surrounding policy development, including the statements and motives of key decision-makers; the relevance of the particularized circumstances of the litigants, including their religious and cultural beliefs and relevant employment history; and the relevance of the institution’s record of implementation of its related policies.
While the implications of the Kumar case are more substantial for public institutions as government actors with rigid constitutional bounds, the concerns raised by the plaintiffs are important to consider for all institutions. A private college or university will not find itself in court defending an Establishment Clause claim, but could face a Title VII claim brought by an employee who (unlike the plaintiffs in Kumar) is not Hindu or South Asian and asserts that their institution’s policy protects some individuals, but not others, from class- or status-based discrimination. Other theories, such as a claim that an institution has, in the course of an investigation of alleged discrimination, assigned caste to an individual contrary to the individual’s self-identification, could also be viable, as could claims brought under different laws, such as a shared-ancestry claim under Title VI. Given the various arguments in favor of construing caste discrimination as a component of discrimination based on race, religion, national origin, and/or ancestry, any law protecting such classes could be in play.
Colleges and universities considering adding caste to their nondiscrimination policies should carefully consider the implications of striking out in a landscape with few guideposts from case law or regulatory guidance. Questions for consideration should include the following:
- Is caste-based discrimination and/or harassment known to be an issue at the institution requiring this kind of institutional response? Has the institution undertaken any steps to determine this?
- If such an incident of discrimination or harassment arose, would the institution be able to address it under existing nondiscrimination policy?
- Has the institution undertaken any steps (e.g. survey, focus group, town hall) to assess community response to such a change, both broadly and relative to groups which may be more affected by such a change?
- Along the same lines, has the institution accounted for potentially strongly divergent perspectives within primarily affected groups, and considered how it would navigate a deeply sensitive, culturally complex scenario in which some individuals may feel targeted and assailed by a policy intended to protect individuals who share the same racial identity, religious affiliation, and/or national origin?
- Are neutral, more generally applicable alternatives available and of substantially equal effectiveness?
- Does the state, municipal, or jurisdictional legal landscape play a role in the institution’s decision?
- If adopted, what would the institution’s plan be to define caste, educate the college or university community about the significance of the policy, and ensure its appropriate application?
This is a complex and evolving area of the law. Please do not hesitate to contact either of the authors with any questions about the substance of this article.