Federal Appeals Court Upholds Caste as a Protected Class in Cal State’s Discrimination Policy

In 2022, California State University amended its anti-discrimination and harassment policy to expressly clarify that discrimination based on a person’s caste was prohibited. This change led to a legal challenge by two Hindu professors who argued the new language was unconstitutional. The court, however, decided the professors lacked standing to bring the case and dismissed their complaint, and on March 12, that dismissal was affirmed by the Ninth Circuit Court of Appeals in Kumar v. Koester.

Read more about caste discrimination below, including the case challenging Cal State’s policy as well as an attempt to add caste discrimination to state law. If you are a Bay Area public or private employee experiencing unlawful discrimination at work, or an employer wanting to make sure you are in compliance with the law, contact employmentlawyer Richard Koss to consult with an experienced and successful San Francisco employment law attorney.

What Is Caste?

Caste refers to social hierarchies that exist in many religions and societies around the world, including in the United States. In this particular instance, caste refers to traditional divisions of class and rank in Hindu society, where society is divided into several categories and the lower class is unable to mingle with the upper classes. The lowest class or caste is deemed “untouchable,” and it is nearly impossible to move out of the caste one is born into, severely limiting one’s employment and social opportunities.

However, caste is not exclusively a religious concept, and it is not limited to Hinduism or India. In fact, caste has been recognized as a social concept by the United States Supreme Court as far back as 1896, where the Court in the landmark Plessy v. Ferguson “separate but equal” case commented that Black people in America were born into the lower class and could not advance in the hierarchy of society. The concept of caste in America was also discussed by the High Court as recently as 2023 in another landmark case, Students for Fair Admissions v. President & Fellows of Harvard College, overturning race-based affirmative action practices in college admissions programs.

Cal State Adds Caste Discrimination to Its Anti-Discrimination and Harassment Policy

On January 1, 2022, CSU updated its policy prohibiting discrimination and harassment to add caste as a protected category by including it in the definition of “National Race or Ethnicity (including color, caste, or ancestry).” Caste is not defined in the policy, and the Hindu religion is nowhere mentioned. The university later clarified that caste is not meant to be a protected category of its own but is “included in the already-existing categories of race or ethnicity.”

Two CSU professors who are of Indian descent and practicing Hindus sued the university for its policy, claiming that adding caste was an unconstitutional violation of the First Amendment’s clauses guaranteeing the free exercise of religion and prohibiting the government establishment of religion. They argued the amended policy targeted practicing Hindus who could be fired for engaging in caste discrimination as part of practicing their religion. At the same time, however, the professors denied that caste discrimination had anything to do with the Hindu religion.

Case Fails for Lack of Standing

Cal State moved to dismiss the claims by alleging that the plaintiffs lacked standing to bring their lawsuit and failed to state a valid legal claim upon which relief could be granted. “Standing” is a legal concept that must be sufficiently demonstrated before a court will agree to hear a case. It requires the plaintiffs to show they suffered or are likely to suffer a legal injury caused by the defendant that the court could correct.

The trial court dismissed the plaintiff’s claims for lack of standing, which the Ninth Circuit of Appeals affirmed on March 12. According to the court, the plaintiffs failed to show that they would be found in violation of the policy based on the fact that they were practicing Hindus. In fact, the plaintiffs had vociferously argued that caste discrimination was not a part of Hinduism. Therefore, according to the plaintiffs’ own arguments, practicing Hinduism would not involve caste discrimination, so the policy would not be applied against them. With that being the case, the professors are not at any risk of legal harm and so they don’t have standing to challenge the policy as unconstitutional. The case was dismissed, and the policy stands.

It remains to be seen how this policy may be applied by the University to any alleged cases of caste discrimination. Should the professors in this case or others find themselves threatened with actual or potential adverse employment actions based on the policy, they might then have standing to sue and be entitled to raise their constitutional challenges at that time.

The California Legislature Also Tried but Failed to Add Caste Discrimination to FEHA

The same person who lobbied Cal State to implement its policy also successfully worked the California legislature to add caste to the state’s anti-discrimination laws in employment and housing, specifically the Unruh Civil Rights Act and California Fair Employment and Housing Act (FEHA). These laws prohibit employment discrimination based on ancestry, among other protected characteristics such as race, religion, national origin, color and many others. SB 403 added caste to the definition of ancestry, effectively making it illegal to discriminate in employment based on a person’s caste.

SB 403 did in fact pass the California Legislature on September 7, 2023. However, the Governor vetoed the new law a month later, before it could go into effect. In his veto message to the Senate, Governor Newsom argued that discrimination based on caste is already prohibited under the existing categories in California law (even though not explicitly stated), making SB 403 unnecessary.

Contact Attorney Richard Koss for Help With Employment Law in San Francisco

If you are a Bay Area employer or employee with questions concerning employment discrimination or harassment, contact San Francisco employment law attorney Richard Koss for practical legal advice and effective representation protecting your rights and promoting your interests.