Is it legal for employers in the California to discriminate against South Asian employees on the basis of caste?
That is the issue being litigated in the landmark case currently before the Superior Court of California in Santa Clara County, brought last summer by the state Department of Fair Employment and Housing against Cisco and two of its employees. It remains unresolved.
As of this week, the case has been postponed pending resolution of Cisco’s appeal of a ruling that last month denied the company’s attempt to compel arbitration – a troubling legal tack in which the company essentially asserts that arbitration agreements signed by its employees preclude the state from intervening on behalf of those employee’s civil rights to enforce California’s workplace anti-discrimination statutes.
If the original ruling against sending the case to arbitration is upheld, the court will take up an even more troubling argument being made by Cisco, asking for the case to be dismissed since, the company argues, it is perfectly legal in California for an employee to be discriminated against because of their caste. Cisco says it voluntarily recognizes “caste as an unacceptable form of discrimination for purposes of our internal reviews,” per a statement on its blog.
Caste is not explicitly recognized as a protected category by California’s Fair Employment and Housing Act. But good luck explaining the concept of caste without relying on the categories that are, namely, race, color, ancestry, national origin and religion. Caste discrimination has been constitutionally illegal in India since 1950, but it’s not technically discrimination in California, and that’s apparently enough for Cisco.
In the current case, an unnamed Cisco engineer claims his direct superiors disparaged and outed him for his Dalit ancestry, and then retaliated against him after he complained. Cisco’s Human Resources department investigated, twice, and found no violation had occurred. The Department of Fair Employment and Housing disagrees.
In a statement about the case on Cisco’s website, Chief Council Mark Chandler treads a fine line between Cisco’s “long history of zero tolerance for discrimination” and the company’s strenuous objections to its discrimination processes being challenged in open court, evincing the worn corporate defense formula of “nothing happened, and even if it did, we can’t be held responsible.”
“We thoroughly examined [the Dalit employee’s] concerns and continue to believe that he was treated fairly. We also don’t believe we should be subject to claims either in court or in arbitration for a form of alleged discrimination that is not legally recognized. We would however fully support the Legislature adding caste to the list of categories having protection against discrimination.” [emphasis added]
The Department of Fair Employment and Housing asserts not only that the actions of the unnamed employee’s superiors did amount to workplace discrimination based on his caste, but also that Cisco failed to “take all reasonable steps” to prevent that discrimination and the subsequent retaliation against the person who made the claim. In addition to the attempts to force the matter into arbitration and to get the case dismissed, Cisco has also filed a motion to de-anonymize the unnamed employee on whose behalf the state government brought suit. This when being outed for his caste at work was the trigger that set this chain of events in motion, and while concealment of caste identity is a common form of self-protection among Dalits in the U.S. against caste-based harassment and discrimination.
As Vice’s David Gilbert originally reported last summer, in the weeks after the Cisco case was filed, hundreds of Dalit workers in Silicon Valley reported being subject to discrimination from higher-caste coworkers. These included “33 complaints from Dalit workers at Facebook, 20 complaints at Google, 18 at Microsoft, 24 more at Cisco, and 14 at Amazon.” The list went on. Twitter, Netflix, Apple, Uber, Lyft and Dell. And on and on.
For its part, Cisco says it “fully supports” legislative efforts to protect people from caste oppression at work sometime in the future, but for the time being it has resolutely plugged the dike to keep civil rights from flowing to some of its employees. A hearing was scheduled for Tuesday on the merits of the company’s argument that caste discrimination isn’t illegal, but has now been postponed until at least September, giving time for a court to hear Cisco’s appeal of the ruling on the arbitration issue.