In 2020 the U.S. Supreme Court tied itself in knots to avoid adopting the longstanding EEOC position that discrimination against LGBTQI+ individuals is sex discrimination under federal law, specifically Title VII of the Civil Rights Act. Instead, the Court held that sexual orientation and gender identity are not characteristics protected by Title VII, but that discrimination on those bases is nonetheless prohibited under the law because it is impossible to commit LGBTQI+ discrimination without impermissibly “considering” a person’s sex.

To many, this seemed like a simple re-wording of the EEOC’s position with the same legal effect, and that is true to a degree. But BCGi wondered at the time whether or not the conservative justices on the Supreme Court really understood that their holding could very well likely lead to far more protections for other disadvantaged groups that don’t fall neatly into Title VII’s boxes. That sure did not seem to be their intent.

Fast-forward to 2023 and the city of Seattle has become the first U.S. jurisdiction to add caste to its list of protected characteristics with regard to nondiscrimination laws, though it probably didn’t need to from a legal standpoint.

Caste is a system of birth-based social stratification in which people are believed to have been born into a higher or lower caste position according to their “purity.” While caste systems can be found all around the world, the classic example is found in India, which just happens to have become a major source for technology workers in the United States.

And although caste has come up in various discrimination lawsuits over the years, it was almost always in conjunction with other forms of discrimination and the courts never reached a decision on whether or not caste is a protected characteristic under federal law. But then Bostock happened.

The Court was considering three cases in which an employer allegedly fired a long-time employee simply for being homosexual or transgender. Consolidated under the banner of Bostock v. Clayton County, Georgia, the Court was called upon to answer the question once and for all whether and to what extent the LGBTQI+ community is protected from discrimination in employment.

The Court could have simply adopted the EEOC’s position that discrimination on the basis of sexual orientation or gender identity are just specific forms of already-prohibited sex discrimination. Or the Court could have “read-in” sexual orientation and gender identity into Title VII, effectively adding them as explicitly protected characteristics. What the Court did instead was open an almost entirely new line of thinking about Title VII and nondiscrimination protections that was unexpected from the new conservative-majority Court.

Rather than limit protections as most expected, the Court likely expanded them by introducing the Bostock analysis. Under Title VII, employers are potentially liable if a protected characteristic was considered at all. It does not have to be the primary motivating factor and, in many instances, does not have to be a motivating factor at all. Consideration is prohibited, hard stop.

If “discrimination” is occurring based on a person’s characteristic that is not explicitly protected by law, it is generally going to be legal. But if that discrimination is only made possible in light of a characteristic that is protected, it will be prohibited. The scope the Supreme Court unleashed is impossible to quantify and we are seeing one of the myriad ways Bostock might change the nondiscrimination landscape.

The same year Bostock was decided, Cisco Systems Inc. was sued for discrimination by an Indian engineer in their Silicon Valley headquarters. The engineer alleged that his fellow South Asian team members brought their caste prejudice to work with them and took it out on him in the forms of lower pay, being given fewer opportunities, and inferior working conditions. They weren’t discriminating against him for the color of his skin or the fact that he was born in India. They were discriminating against him because he was born into a lower caste.

The case is making its labored way through the courts now. Proceedings were delayed over an arbitration provision that the court recently shot down, so we may start to see some movement over the next few months. But as Bostock sinks in, Cisco might be reconsidering their settlement position.

Because while it is relatively clear that the engineer was not being discriminated against based on any explicitly protected characteristic, Bostock now requires us to ask, “Yes, but is the discrimination possible without considering one or more characteristics that are protected?” And the answer here would appear to be fairly clear.

These engineers are all from India and are allegedly reacting to specifically Indian social customs. It therefore seems impossible to discriminate against someone for their Indian caste without “considering” their national origin, which is absolutely listed as a protected characteristic in Title VII.

Game. Set. Match.

Yes, there are potential religious issues at play as demonstrated by the fierce debate over Seattle’s new law (the caste system at issue is specific to the Hindu faith), but it is unlikely that any court will find an overriding religious interest here. Employees are still free to think what they like about members of “lower” caste, but they will not be allowed to adversely impact other employee’s work lives in the name of their employer under the umbrella of “religious freedom.”

But don’t just take our word for it; maybe ask what the Harvard Law Review has to say on the subject. As it turns out, their analysis is in line with ours. Bostock potentially opens doors to places we’ve never seen, so it is difficult to determine the true scope. But caste discrimination appears to check the Bostock boxes in every meaningful way. Before Bostock, victims of caste discrimination appeared to have no direct avenue to the courts. After Bostock they do and are likely to prevail.

Seattle is making a statement more so than enhancing their existing, robust nondiscrimination laws. The city already listed national origin, ancestry, and creed among their protected characteristics, some combination of which likely covers caste discrimination thoroughly. And whether it is the Cisco case or some other case that ends up confirming it, caste discrimination is almost certainly prohibited by Title VII under a Bostock analysis. But by explicitly adding caste, the city is effectively saying to South Asian tech workers, “Hey, if San Jose or the State of California won’t protect you, WE will! Come on up to Seattle and get your coding on and contribute to OUR tax base.”

What does this all mean for employers?

This does not necessarily mean that federal contractor employers are going to have to start running a whole slew of new impact ratio analyses based on caste. BCGi is unaware of any employer collecting information on caste in the first place, and unless an organization has a significant South Asian population, the issue is unlikely to reveal itself in those types of systemic analyses anyway. And caste is not the only “new” form of discrimination covered by Bostock.

What it does mean is corporate lawyers should not be so quick to dismiss discrimination concerns that don’t fall neatly into the five protected characteristics under federal law. Cases must now be evaluated with more nuance, and evaluation conclusions are going to be less certain.

But that means potentially elevating issues to your legal department that you might not have thought to elevate previously so that the pinstripe suits can evaluate things under this new Bostock rubric. What might appear at first glance as a slam-dunk for the organization might not be so sure. So when in doubt, get it in front of your legal team.

And watch the Cisco case closely for developments. If this author had to wager, that wager would be on settlement. But if the case goes the distance, we will likely start to see the contours of the scope of Bostock emerge, which is a good thing no matter the outcome. But the resolution of the Cisco case will also likely influence the EEOC and the extent to which they start picking up and prosecuting caste discrimination cases. In the meantime, about all we can do is wait to see how far the flood gates do or don’t open.

If you have questions, comments, or concerns about this or any other BCGi blog post, feel free to reach out to us at BCGi@Biddle.com.