Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails There is the Possible Application of Bostock v. Clayton County

Brown, Kevin D, Khandare, Lalit, Waughray, Annapurna, Dau-Schmidt, Kenneth Glenn and Shaw, Theodore (2022) Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails There is the Possible Application of Bostock v. Clayton County. N.Y.U. Review of Law and Social Change, 46 (2). pp. 117-174. ISSN 0048-7481

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Abstract

This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept of race discrimination or national origin discrimination under Title VII or race discrimination under Section 1981. However, if courts reject these conclusions, the approach adopted by the Supreme Court in its June 2020 decision in Bostock v Clayton County would provide another potent legal argument for recognizing such discrimination. The Bostock approach avoids the question of whether caste discrimination based on untouchability is a form of national origin or racial discrimination. This approach draws on the Supreme Court’s recognition that the “but-for” causation standard applies under both Title VII and Section 1981. The but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. And, multiple but-for causes can exist. Applying this approach to intentional employment discrimination against gays, lesbians or transgender individuals, the Supreme Court pointed out that such a person’s sex is inextricably intertwined with their other status. The Court concluded that discrimination against a person because they are gay, lesbian or transgender means that you are discriminating against such a person based on that status, which is not protected, and their sex, which is. Thus, under the Bostock approach, because all of those who are victims of caste discrimination based on untouchability are from Asia, their caste is inextricably intertwined with their race. As a result, when Dalits are victims of intentional discrimination based on untouchabilty, the discriminator is motivated to discriminate against them because of their caste, which is not a protected trait, and their race, which is. Thus, intentional caste discrimination inevitably also involves race discrimination under both Title VII and Section 1981.