In what is likely to be a precedent-setting case, California regulators filed a suit in the federal court on June 30 against Cisco Systems Inc, alleging that the company failed to prevent discrimination, harassment and retaliation against a Dalit engineer, anonymised as “John Doe” in the filing.
The Cisco case bears the burden of making anti-Dalit prejudice legible to American civil rights law as an extreme form of social disability attached to those formerly classified as “Untouchable.” Herein lies its key legal significance. The suit implicitly compares two systems of descent-based discrimination – caste and race – and translates between them to find points of convergence or family resemblance.
The charge of caste discrimination also challenges the myth of the South Asian diaspora as a monolithic community and a model minority, the “other one percent”. The case makes caste internationally visible as the practice of social exclusion that is materially consequential. A little historical background will assist in the comparative work of discerning the consequences of untouchability in a context geared to findings about the very different category of race.
Two unequal systems
Reservations are a unique form of civil rights law that defines caste as a system of historical discrimination resulting in enduring group disadvantage, or social and economic “backwardness”. Until recently, reservations were organised around a commitment to “equality of outcome” and not merely “equality of opportunity”, as is the case in the United States.
Reservations in Southern and Western India date to the late colonial period, and predate the better-known system that followed passage of the Civil Rights Act of 1964 in the United States by nearly a century. Article 17 of the Indian Constitution separately abolishes untouchability and prescribes a system of compensatory discrimination for its victims and their descendants, including an unusual and robust set of criminal law provisions – such as the Prevention of Atrocities Act – that were instituted to protect these communities from violence by dominant upper-castes.
Constitutional commitments to social and economic advancement of Scheduled Castes and Scheduled Tribes are the governing template for extending reservations to other castes. What is more, Indian law courts have understood the commitment to remediation as absolute. So much so that interpretive leeway has turned on the question of eligibility, on defining the rightful beneficiaries of preferential treatment. In contrast, courts in the United States work through judicial scrutiny to balance equal protection – read “non-discrimination” – against commitments to affirmative action.
Ironically, affirmative action policies that are remedial in their conception are now criticised, whether in India or the United States, for introducing exception and inequality in the domain of liberal equality. It is true that there is a very wide gap between progressive legislation and equitable outcome in case law. However, this is not the reason why the state is actively rolling back civil rights legislation, both in India and in the United States. In the process and as a consequence, those who suffer the disability of caste or race are now viewed as the undeserving beneficiaries of affirmative action policy, while the true beneficiaries of inherited privilege redefine their privilege as “merit”.
Let us take a brief look at the details of the suit with the foregoing in mind.
The federal suit filed by the California Department of Fair Employment and Housing follows on two inconclusive internal reviews conducted by Cisco. The complaint describes a hostile work environment that resulted in “John Doe” receiving less pay, fewer opportunities for advancement, and otherwise suffering inferior terms and conditions of employment.
The suit names Cisco and two employees, Sundar Iyer and Ramana Kompella, who served in a supervisory capacity over John Doe at varying times. Of eight charges in all, Cisco is charged with multiple counts of “Retaliation,” “Failure to Take All Reasonable Steps to Prevent Discrimination, Harrassment, and Retaliation,” and “Discrimination on the Basis of Religion, Ancestry, National Origin/Ethnicity, and Race/Color.” All three defendants are charged with “Harassment on the Basis of Religion, Ancestry, National Origin/Ethnicity, and Race/Color.”
The social circumstances leading up to the suit are equally revealing. John Doe is an IIT graduate, like the defendants. He worked on a team of entirely Indian, largely upper-caste employees. He was subject to a series of discriminatory incidents that escalated in severity starting with public exposure of his caste identity in late 2016 by Sundar Iyer. During Cisco’s first review, Iyer is alleged to have told John Doe’s colleagues that he was not from the “main list”, thus publicising Doe’s identity as someone who has derived the benefit of reservations. No action was taken, however, and the Office of Employee Relations is alleged to have noted that “caste discrimination was not unlawful.”
During the second review, witnesses testified that Iyer sidelined Doe from a project and questioned his competence. Doe was isolated from the group, rejected a raise, and denied the chance to apply for a position that would have entailed a raise and a promotion. However, Cisco’s second review also found no grounds to support claims of caste-based and related discrimination, or evidence of retaliation against Doe.
The case will now be decided in the court of law. However, it is worth noting that debates about caste privilege, anger against the “underserving” beneficiaries of reservation, and anxiety about the introduction of the caste question into the diaspora are rife within the upper caste discussions I am privy to. Why so?
The Cisco case addresses caste as inherited privilege, one that upper-castes carry with them and make use of to derive material benefit in the United States even as they deny that caste matters. Instead, John Doe is presented as suffering the burden of caste. The fact of his being a Dalit and thus, the beneficiary of affirmative action policy in India might confirm the view that his work is not up to par.
Though non-Indian coworkers might remain unaware, the caste name – and caste identity, more generally – continue to operate as secret knowledge that can be “outed” at will to stigmatise Dalit-Bahujans. Their social reverberations extend to membership in regional, and oftentimes caste-specific, cultural organisations, commitments to exclusivity in food and marriage, and most important of all, the denial of caste as an operative factor in contexts where merit is supposed to prevail.
By charging Cisco with responsibility for creating a hostile environment where a historically-discriminated minority is again excluded on the basis of religious identity – caste is here seen as an integral element of Hindu religion – national origin/ethnicity and race, the federal suit implicates a globally-renowned, private corporation, Cisco, with duty to equal protection and diversity.
In the United States, policies of affirmative action are related to but distinct from a commitment to multicultural diversity. Equal protection of diversity/difference, such as religious differences, must be distinguished from inequality that arises through historic relations of domination, subordination, and hierarchy. This case poses the question of how respect for Hindu religion might coexist with recognising socio-economic inequality justified in the name of religion.
Though far-reaching in conception and intent, reservations in India have been stymied by their focus on fast-vanishing public sector employment. They have steered clear of legislating equality in the private sector. The petition against Cisco provides a model, one that will need to translated back to suit Indian conditions.
A senior Indian engineer in the United States whom I know, on reading the suit, remarked that it should be essential reading for every Human Relations department in this country, to alert them that there could be minorities within minorities, and that Indians are far from being a uniform or homogeneous group. Indians today constitute the highest earning and best-educated ethnic group, including Whites. Not surprisingly, they are overwhelmingly from well-educated and upper caste backgrounds. Despite their inherited privilege, they have fashioned an American success story for themselves, of struggling against the odds to achieve their status. This case suggests that a healthy dose of skepticism is required.
Anupama Rao teaches at Barnard College, Columbia University.