Letter: Proposal to add caste unconstitutional

Dear Honorable Council Members and City Attorney Davison,

We are writing to you on behalf of the Hindu American Foundation (HAF) to express our serious concerns about the denial of civil rights that will occur as a result of Councilmember Kshama Sawant’s unconstitutional proposal to add the category of “caste” to the city’s nondiscrimination policies. HAF is an independent, nonpartisan, nonprofit education, advocacy and civil rights organization with a significant number of members living and working in the City of Seattle. Our members come from all ethnic and social backgrounds, including Dalit and Bahujan.

We share the admirable goals of standing up for civil rights and eliminating all forms of prejudice and discrimination, including based on caste. Indeed, if and when incidents of caste discrimination occur, they should be brought to light, thoroughly investigated and rectified. 

That said, we believe that both the legislative intent and impact of Councilmember Sawant’s proposal unfairly singles out and targets an entire community on the basis of their national origin and ancestry for disparate treatment, thereby violating the very policy the resolution seeks to amend, not to mention Title VII of the Civil Rights Act of 1964.

Discriminatory intent and impact of caste resolution

In her statements to the press, Councilmember Sawant has stated that, “Caste discrimination doesn’t only take place in other countries. It is faced by South Asian American and other immigrant working people in their workplaces, including in the tech sector, in Seattle and in cities around the country” and that “the policy protects those of South Asian descent from discrimination by those who do [recognize the caste system].” 

Not only does the council member make clear the target of her policy proposal, but she negatively implicates an entire ethnic minority community—people of Indian descent make up less than 2% of the US and Washington state population—in the absence of any verifiable evidence of her claim of widespread discrimination amongst South Asians in the workplace. No other ethnic minority is being similarly targeted or subjected to separate proposed policies that would only apply to their community.

The addition of “caste” is a striking departure from the well-established practice of facially neutral policies that apply broadly and generally to all people regardless of background or identity. That this category calls for treating disparately members of a group on the basis of their national origin or ancestry is the very definition of discriminatory, and a denial of both equal protection and due process. It also further exacerbates misconceptions about Indians, and in effect seeks to institutionalize implicit bias about all people of Indian/South Asian descent as members of a suspect class as a matter of policy.

Just the very introduction of this proposal has unleashed such hateful rhetoric towards and labeling of an entire community as “anti-Muslim”, “anti-poor,” “oppressors” and “right wing,” starting with Councilmember Sawant, and extending to all of the activists she has galvanized against ordinary and hardworking South Asians, who are simply at a loss in the face of such vitriol emanating from the body that should be serving and protecting them. 

No reliable definition or data on caste

Caste is one of the most complicated and misunderstood concepts encountered when attempting to understand India and Hinduism. Part of the challenge is that there is no universally accepted definition nor is there a uniformly held understanding of it. Yet caste is misconflated with India and Hinduism, and remains the single most entrenched, inaccurate and anti-Hindu stereotype about both. In fact, this stereotype continues through the American public education system, where it is taught to schoolchildren across the country, and has resulted in the bullying of Hindu and Indian American children.

Though often presented as a growing problem in the United States, the only authoritative survey on the issue of caste identities and caste discrimination is by the Carnegie Endowment for International Peace and it has found that while discrimination on the basis of gender, religion, color and national origin is reported as quite common, discrimination on the basis of caste is exceedingly rare (Of the 50% of respondents who reported facing some form of discrimination, only 5% stated they faced caste-based discrimination; in other words, only  2.5% of the total number of people surveyed reported facing caste based discrimination). 

Even if rare, however, existing laws prohibiting ancestry-based discrimination can and should be used as the remedy. It is also important to note that both statistically and anecdotally, caste becomes less and less salient to the identities of subsequent generations of Indian and Hindu Americans.

Please also note that the survey by a for-profit, activist organization called Equality Labs, which Councilmember Sawant relies on, contains serious flaws, including manipulated and falsified data, selection and confirmation bias, amongst other fatal errors that render its finding unreliable. The errors in this survey were pointed out by the Carnegie Endowment Report referenced above.

Perhaps, even more dangerously, Equality Labs and supporters of Councilmember Sawant have frequently sought to demonize common Hindu cultural and religious practices and traditions, such as vegetarianism, celebration of holidays like Diwali and Holi, or even simply worshiping at a Hindu temple as casteist practices.

Only one legal case on the issue of caste-discrimination in the US

The Cisco case is the only court case to date involving an allegation of caste-based discrimination in the US and it is still pending – there has been no ruling yet on whether any form of caste-based discrimination or harassment had in fact occurred. 

The State of California’s Department of Fair Employment and Housing sued Cisco Systems in June  2020, accusing the company of engaging in unlawful employment practices over a claim by an Indian-origin employee that two managers, also of Indian origin, allegedly discriminated against him on the basis of his assumed caste. The case was initially filed in federal court, but has since been re-filed in state court. Cisco Systems is promising a vigorous defense, rejecting the claim of discrimination.

Please see the timeline and key links where important facts are highlighted from court filings and other publicly available information, but overlooked by most of the media coverage surrounding the case. 

We hope in addition to quashing this ill-intended resolution calling for a policy change that seeks to unfairly single out and discriminate against people of South Asian and Indian descent or origin, other members of the Seattle’s city council will publish a statement condemning the hateful rhetoric towards South Asians by Councilmember Sawant and reiterating that the city is a place that values its South Asian citizens.

Please let us know if you have some time this week or early next to discuss this issue and its legal ramifications further. 

We can be reached at the email addresses included here or legal@hinduamerican.org.

Suhag A. Shukla, Esq. Samir Kalra, Esq.
Executive Director Managing Director

Nikhil Joshi, Esq.
Cofounder | Board Certified as a specialist in Labor and Employment Law