The California Department of Fair Employment and Housing (DFEH) filed an action against Cisco Systems Inc (Cisco) on behalf of Complainant John Doe (name anonymised). John Doe alleges that his supervisors imported discriminatory practices against him due to his status of being a Dalit. Doe’s role as “lead” on two technologies was taken away. After that, Doe’s peers were given a promotion and granted the ability to supervise Doe, despite the fact that he was both competent and deserving of a promotion and salary raise.
The Department of Human Resources at the company refused to acknowledge a problem. The grounds of action emanate from Title VII of the US Civil Rights Act of 1964. The grounds include both factors discrimination and harassment on the basis of religion, ancestry and ethnicity, and also a failure to take reasonable steps to avoid such treatment.
This is groundbreaking in two ways. First, it will provoke the creation of caste as new grounds for discrimination in the United States. This will help create a legal discourse on the synonymity of the manifestations between race and caste. Second, this will be the first time when a “Black-White” law shall be forced to make space for a Yellow-Brown problem. In other words, American law which is scripted only to accommodate battles shaped as person of colour versus White persons, shall now have to lend its language to other categories oppressed categories such as being Dalit or belonging to a lower caste — a South Asian phenomenon. This piece is geared towards borrowing vocabulary from the Critical Race Theory framework to analyse this case of caste discrimination.
Doe studied at a reputed Indian university by availing affirmative action. Instead of the intended effect of reservations of bringing Doe to a level playing field with those who have not been oppressed due to their caste identities, Doe has effectively been retrenched. It brings back the idea of allowing such special treatment in University Admissions only for the sake of “diversity” from the American case of Bakke versus Regents. In this case, affirmative action was granted on the grounds that students of colour would offer diversity to White Students. And so, rather than deeming it essential for a student with a historically oppressed background to receive equal treatment — the White-centricity caused the court to reason in strictly White terms.
This is similar to the argument Kimberlé Crenshaw makes by saying that the emphasis on measures such as reservations to create colourblindness, in turn ends up reinforcing hierarchies of colour. Haney López calls this a “myopia” where Whites fail to look at themselves in racial terms. According to Flagg, the default skin colour according to White people is “white” and so, White people themselves do not think of themselves as “racially distinctive”. Such Whiteness is so deeply normalised that there is a certain “unconsciousness” or obliviousness towards their own Whiteness. This is what Flagg calls “White consciousness”. This automatically puts persons of colour into a “different” category — where they are regarded as “racially distinctive”.
This unintentional conspicuousness accorded to Doe’s caste status makes it difficult for him to justify his allegations against his colleagues to the HR department.
This is because, similar to a racial distrust which pervades relationships between White persons and persons of colour, there is a “Dalit distrust” which comes into play in this dynamic. The varying subjective threshold of what may constitute “harassment” interferes with John Doe’s caste identity and legitimises a disbelief of Doe’s allegations. The predominant understanding that the normative employee is either “White” or upper caste makes this the “baseline” or the “normal”.
This causes John Doe to become the outsider — because of his caste identity. Therefore, the denial of salary raises, bonuses and awards that Doe deserved but did not receive — are only actions that reject a clarification of the “baseline” assumptions. The case of “Dalit distrust” is further strengthened when an offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is registered only if the offence is committed due to the victim’s caste identity. This causes a number of rapists of Dalit women to be let off the hook as merely rapists and not, “Dalit women rapists”. This selective prioritising of a victim’s gender identity over their caste identity reveals a deep legal and societal bias towards believing the victimhood of one identity over another. In other words, we find it easier to accept a woman’s allegation that she was raped rather than a Dalit woman’s allegation of rape.
While some parts of the world celebrate Kamala Harris’ “Indian” descent on the one hand, a while ago a man named Plessy — while being tested on whether he was White enough to avail of the same rights as any other White Person in the United States or not — was denounced from being a US citizen due to his “mixed” origin. The “petitioner was seven-eighths Caucasian and one eighth African blood”. The court went onto judicialise a vocabulary where a person of colour was constructed as the stark opposite of a White person. It called people of colour as those with “a badge of inferiority and servitude”. Similarly in India, and the case of Indira Sawhney — the court coined the term “backward class” to refer to Scheduled Caste/Scheduled Tribe persons. One is forced to think if the legal construction was more to refer to these people as “backward” or to normalise the existence of those who are not SCs/STs or OBCs as “forward”.
Robert Chang, in his book Disoriented: Asian Americans, Law, and the Nation-State, talks about how because of his Korean descent, becoming “American” is an “aspiration” for someone who does not biologically fit into the “born in the United States” category. He goes on to recall incidents where he would hush his mother talking in Korean on the streets of America only so that they would not appear as outsiders. This ties in neatly with Amartya Sen’s argument on the ‘notion of merit’. There is a re-coding of the idea of “merit” in normatively upper caste/White terms by deliberately excluding the oppressed.
The idea of basing oppression due to one’s racial identity on a temporal continuity stems from Du Bois. Such acts of ostracism attempt to forcefully re-create a historical continuity of oppression based on caste identity despite the fact that such oppression stands outlawed. Herbert Wechsler’s point on how the real problem is of associational rights where laws that overrule apartheid and untouchability force integration between people who may not want to interact with one another gain currency here. However, in practice this would amount to a legitimised proliferation or a complacence of such identity based oppression. While one would traditionally think that caste/colour based discrimination is a non-occurrence in “educated, elite” institutions or companies such as Cisco Systems, this case forces us to think about quite the contrary.