All Fall Flat: Why California’s Caste Discrimination Bill is Itself Discriminatory

In the past several months the drumbeat behind the effort to make “caste” a separate, stand-alone category of discrimination has been growing louder and faster. The latest thump is California state Sen. Aisha Wahab’s bill, which breezed through the state’s upper house recently. Wahab, the first Afghan American and Muslim elected to the California Legislature, was cheered on by the same chorus that has supported similar measures on college campuses and in the city of Seattle. 

What no one is interested in hearing, it seems, are the concerns raised by thousands of South Asians about the bill’s jarring denial of equal protection and due process, and the ugly, xenophobic tropes it institutionalizes. Wahab’s bill falsely accuses South Asian Californians of engaging in horrible conduct that just begins with bias and discrimination, extending to torture, rape, murder, and even human trafficking, based on caste. In doing so, the proposed law is alone in applying to only one population within the state. 

Supporters of the bill claim that new policies are needed because caste discrimination is not covered under existing law; that examples of caste discrimination are already common; that those opposing these measures are all “oppressors” or “caste privileged”; and if a South Asian does not discriminate by caste, outlawing the practice will have no impact on them.

All fall flat. Let’s break it down.

Supporters allege that “Existing prohibitions against discrimination on the grounds of religion, race, ethnicity, ancestry or national origin are inadequate since many caste-oppressed victims share all these characteristics with their victimizers.” 

Incorrect. 

The U.S. Equal Employment Opportunity Commission has provided guidance under Title VII of the Civil Rights Act of 1964 that discrimination “can occur between persons of the same race or ethnicity.” 

The same goes for ethnic groups. According to a 2021 Pew survey, 25% of Latino adults reported facing discrimination or unfair treatment from other Latinos, particularly those with darker skin or those born outside the U.S. They also reported that they were as likely to experience discrimination at the hands of non-Latinos as Latinos. Mistreatment based on country of origin, color, or accent is covered by existing law banning discrimination, including intracommunity interactions. This is well-established law and would apply to South Asians as much as to Latinos.

How do we know? In its much-touted case against Cisco Systems, California’s nondiscrimination law enforcement agency used national origin and ancestry to litigate a case of alleged caste discrimination. 

The most painful part of these divisive fights is that they are unnecessary. The virtue of existing nondiscrimination laws is that they apply to everyone. Let’s let them do their job.

Supporters also allege, “The evidence of hate crimes against caste-oppressed groups in the U.S. shows that such protections and mechanisms for redress are not only warranted but necessary.”

Wrong. 

In fact, caste discrimination is exceedingly rare, both anecdotally and according to the only academically conducted survey to date. While more research could be done, a 2020 survey by researchers at the University of Pennsylvania, Johns Hopkins and the Carnegie Endowment for International Peace found that while half of all Indian Americans surveyed reported facing alleged discrimination based on color, gender or religion, less than 2.5% reported caste discrimination. 

No wonder supporters of California’s bill prefer to cite a report by Equality Labs, which the judge in the Cisco case refused to accept as evidence. 

The authors of the 2020 Carnegie Endowment survey also questioned its validity, writing: This study relied on a nonrepresentative snowball sampling method to recruit respondents. Furthermore, respondents who did not disclose a caste identity were dropped from the data set. Therefore, it is likely that the sample does not fully represent the South Asian American population and could skew it in favor of those who have strong views about caste. While the existence of caste discrimination in India is incontrovertible, its precise extent and intensity in the United States can be contested.

What about the claim that “The only people who will be adversely affected by legislation banning caste-based discrimination are those who discriminate against or dehumanize others on the basis of caste”? 

This one is disingenuous at best.

The process of trumping up the need for a law against caste discrimination demonizes people on the basis of their ancestral or community backgrounds. It paints South Asian Americans as at once racist, elitist and backward, giving license to ethnically profile anyone who looks South Asian, and inviting hostile work or educational environments for employees and students. It likely hasn’t occurred to the bill’s supporters that they are creating the conditions for discrimination.

Wahab’s bill, SB 403, does more than discriminate against South Asian Americans, however. It divides them into oppressors and oppressed. Aside from being reductive and dangerous, this division violates the Constitution. There is no presumed status of “oppressed” and, conversely, “oppressor” under U.S. law or constitutional notions of equal protection and due process. 

These distortions of ideas about anti-discrimination are not surprising, or new: Many caste policy activists have a long track record of demonizing so-called caste-privileged Hindus, especially Brahmins — those people associated with certain religious vocations or study, traditions or ancestral heritage. 

That policymakers have passed these policies blindly makes them no less questionable constitutionally. Nor does it make the South Asian activists who are endorsing them any less xenophobic. 

The most painful part of these divisive fights is that they are unnecessary. The virtue of existing nondiscrimination laws is that they apply to everyone. Let’s let them do their job.

(This story was first published in Religion News Service and republished here with permission.)

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Suhag Shukla is the executive director of the Hindu American Foundation.