Why California's SB-403 Should be Passed

There is Nothing to Fear From Clarifying Existing Anti-Discrimination Laws

SB-403, a bill to prohibit caste discrimination in California co-authored by State Senator Aisha Wahab (D-Hayward) and State Assemblywoman Dr. Jasmeet Bains (D-Bakersfield), recently passed out of the Senate Judiciary Committee.¹

There has been opposition to this legislation from some Indian Americans and allied political groups.² This opposition comes from a place of natural and understandable fear but also a genuine misunderstanding of current civil rights laws in California. Opponents have nothing to fear and should support the enactment of SB-403.³

Many may be wondering. What is caste discrimination?

Caste discrimination, common in India but present in other societies as well, “encompasses a complex ordering of social groups on the basis of ritual purity. A person is considered a member of the caste into which he or she is born and remains within that caste until death, although the particular ranking of that caste may vary among regions and over time.”⁴

Although India abolished its caste system shortly after its independence, caste discrimination remains present.⁵ And increasingly, there are reports of caste discrimination occurring in the United States, including California, which has a large and vibrant Indian-American community.⁶

California is arguably the most diverse society on earth, comprised of people hailing from every part of the globe. Californians are free to be who they are without regard to immutable characteristics that have no bearing on how they contribute to society and are little more than an accident of birth.⁷ The very first words of the California Constitution inform us that “All people are by nature free and independent and have inalienable rights.”⁸ Moreover, “A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”⁹

To ensure this vision remains a reality in California, we have enacted the Unruh Civil Rights Act (prohibiting discrimination in public accommodations),¹⁰ the California Fair Employment and Housing Act,¹¹ laws prohibiting discrimination in education,¹² and laws directly prohibiting the government from discriminating in any governmental action or from even funding any private actor that engages in prohibited discrimination.¹³

Currently, California’s civil rights statutes expressly prohibit discrimination on the basis of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, gender identity, gender expression, citizenship, primary language, or immigration status.¹⁴

SB-403 will amend California’s current civil rights statutes to include caste as a specific category of prohibited discrimination.¹⁵ It will define “caste” as “an individual’s perceived position in a system of social stratification on the basis of inherited status.”¹⁶ It further defines “A system of social stratification on the basis of inherited status” as something that is “characterized by factors that may include, but are not limited to, inability or restricted ability to alter inherited status; socially enforced restrictions on marriage, private and public segregation, and discrimination; and social exclusion on the basis of perceived status.”¹⁷

Some appear to oppose SB-403 because of a misunderstanding of how existing civil rights laws work in the United States. The misunderstanding appears to drive fears that changing California law will in reality open the door to caste discrimination in the name of getting rid of it. India’s Constitution specifically requires quotas in government jobs and university positions for certain caste members.¹⁸ This has created resentments and tensions, particularly among those from lower castes who do not receive reservations but feel they should given past discrimination.¹⁹

Whatever the merits of those arguments in India may be, they have no application here in the United States. Many Indian Americans who left India for a new life of opportunity in the United States do not want what they left behind following them to California. While these fears are not irrational, they are misplaced.

First, caste discrimination in India would not justify remedial caste discrimination in the United States under the Fourteenth Amendment.²⁰ Moreover, a general amorphous claim of past caste discrimination does not justify use of caste to discriminate prospectively.²¹ Caste discrimination in India cannot be extrapolated to California for the purposes of making public policy.²² While some argue changing California law to include caste discrimination targets the Indian community, legally, it applies to any person who discriminates, regardless of their race or their caste.²³

It is a common misperception that non-discrimination laws are only for protected categories of individuals and prohibit discrimination only against those who are considered to be oppressed minorities. Some erroneously believe that discrimination against non-transgender, straight, white men is legally permissible (if not desirable). However, this is not how civil rights and non-discrimination laws work.²⁴ And civil rights and non-discrimination laws definitely do not work this way in California.²⁵

Two California Supreme Court cases, Hughes v. Superior Court,²⁶ and Koire v. Metro Car Wash,²⁷ illustrate this point.

In Hughes, a supermarket in Richmond sought an injunction against picketing by aa group that organized a boycott and picket of the supermarket after the supermarket refused to give into the group's demand that it hire African Americans employees over white employees in specific ratio.²⁸ The group seeking the boycott believed the supermarket should have a racially balanced workforce that reflected the community’s demographics and wanted to increase local African American employment.²⁹

After the group began picketing the store, demanding it comply with its hiring demands, it was held in contempt of court.³⁰ The supermarket denied that it discriminated against African Americans and argued its "policy throughout has been to hire employees on their individual merit and capacity".³¹ When the group sought relief to end the injunction against them, the California Supreme Court evaluated whether the supermarket engaging in the hiring scheme demanded would be illegal.³²

The California Supreme Court agreed with the supermarket that the demands for specific racial hiring would be illegal.³³ As the Court reasoned, if the supermarket agreed to the demands, “its resultant hiring policy would have constituted, as to a proportion of its employees, the equivalent of both a closed shop and a closed union in favor of [African Americans].”³⁴ Thus, the supermarket “would have had no choice but to employ only members of [African Americans] in a fixed number of clerical positions, thus effectuating a closed [African American] shop as to those positions.”³⁵

As the Court explained, race and color are inherent qualities that one could never attempt to meet as job qualifications when seeking a job.³⁶ The Court had already previously rejected arbitrary race discrimination against African Americans attempting to join a union as illegal, holding this discrimination was no different.³⁷ Nor did the demand that the race discrimination only be practiced on all employees make the discrimination acceptable.³⁸

The Court concluded that allowing the supermarket to agree to the boycott demands would confer a right to racially discriminate to all, an untenable proposition.³⁹ Accordingly, the Court upheld the injunction.⁴⁰ Later, on appeal, the United States Supreme Court affirmed the California Supreme Court, holding that the injunction did not violate the First Amendment.⁴¹ Notably, at the time Hughes was decided, California had not yet enacted a civil rights statute prohibiting racial discrimination in employment.⁴²

In Koire, the California Supreme Court addressed the issue of whether Ladies’ Night and Ladies’ Day promotions at businesses violated the Unruh Civil Rights Act.⁴³ The Unruh Civil Rights Act does more than simply prohibit outright exclusion from a business, it prohibits any kind of discrimination within the business including any kind of favoritism based upon a specified characteristic.⁴⁴ A business that allows a person to patronize the business but fails to give the customer equal service, on account of a protected category, violates the Unruh Civil Rights Act.⁴⁵

In Koire, the businesses argued that Ladies' Days and Ladies' Nights were permissible because they were good for business, a claim the Court quickly rejected.⁴⁶ Moreover, the Court held that businesses could not defend against the claim on the basis that both sexes were ultimately treated equally or that men were not harmed by the policy because civil rights laws focused on the protection of the individual, not comparative groups.⁴⁷ While the businesses also argued that Ladies' Nights were legal because they benefited women over men, the Court rejected the concept, holding sexist discrimination was universally harmful to both men and women alike.⁴⁸

As the Court held, group stereotypes cannot be used to justify evading a non-discrimination law.⁴⁹ Moreover, “public policy in California mandates the equal treatment of men and women.”⁵⁰ The Court unanimously held the Ladies' Day and Ladies' Night discounts violated the law.⁵¹ And although a case on statutory law, the principles of Koire have been applied to the interpretation of constitutional law.⁵²

The lesson of both Hughes and Koire is clear: This isn’t Animal Farm, it’s California.

There may be some confusion because of two early 1980’s cases, Price v. Civil Service Commission,⁵³ and DeRonde v. UC Regents,⁵⁴ where the California Supreme Court upheld governmental discrimination as constitutional.⁵⁵ Both Price and DeRonde followed then existing United States Supreme Court case law to reach their conclusions.⁵⁶ However, the United States Supreme Court has dramatically changed its own case law since, requiring certain reversal of Price and DeRonde if decided today.⁵⁷

More importantly, California law does not follow the United States and provides greater constitutional protection for individual liberty.⁵⁸ The voters abrogated both Price and DeRonde through a state constitutional amendment in 1996.⁵⁹ The California Supreme Court effectively repudiated both decisions in 2000.⁶⁰

Whatever permissible discrimination may be allowed for under federal law is not allowed under California law.⁶¹ Any remaining vestiges of Price and DeRonde were held unconstitutional by 2002.⁶² And any governmental policies or state legislation must operate within the current constitutional restrictions.⁶³

Many would argue that caste discrimination is already prohibited by the current civil rights statutes. Caste discrimination is a type of arbitrary and unreasonable discrimination, and it is discrimination on the basis of ancestry and race.⁶⁴ SB-403 agrees, providing that the changes are declaratory of existing law.

So, why enact SB-403 then?

First, it will ensure that any future litigation against caste discrimination will not be an open issue for courts to decide. Right now, it’s entirely possible that a court could interpret the statute differently and decide that caste discrimination was not discrimination based upon ancestry. This is what necessitated the CROWN Act, which protects braid hairstyles commonly adopted by black women from use in employment decisions.⁶⁵ This law became needed after federal courts decided that discrimination on hair style did not constitute a form of race discrimination.⁶⁶

Second, it adds clarity for regular citizens. The point of having civil rights laws is not to have lawsuits but so that people will clearly follow the law and not discriminate. When we think of all the potential situations in which we don’t want discrimination, we want the law to be easy to follow. Specifying caste discrimination is also helpful for Americans who may be completely unaware of caste discrimination and become unwitting accomplices in caste discrimination of others.

Third, it will not create negative consequences. For example, height and weight discrimination are arguably prohibited as arbitrary discrimination in public accommodations.⁶⁷ But lacking the express prohibitions on height and weight discrimination protects reasonable and legitimate differential treatment based upon height and weight.⁶⁸

For example, the Rochester Men’s Big and Tall store and Jimmy Au’s Men Under 5’8 store are high-end specialty clothing stores that offer fashionable clothing that properly fits men’s bodies, provide clothing in sizes for men that are difficult to find in regular department stores and at high end men’s clothing stores, and provide a store environment that make shoppers feel comfortable, unashamed of their size, and valued as customers. These stores do not arbitrarily or unreasonably discriminate on the basis of height and weight.

A surgeon who specializes in breast augmentation or cosmetic limb lengthening surgery who informs a patient that they are too overweight to safely operate on them and requests the patient reduce their weight to operate is not arbitrarily discriminating against their patient on the basis of their patient's weight. Similarly, a doctor who refuses to prescribe weight loss medication to an anorexic patient who is already severely underweight doesn’t arbitrarily discriminate on the basis of their patient’s weight. Neither situation would violate the Unruh Civil Rights Act.⁶⁹

Now, most people can probably see these differences quite clearly. But in today’s day and age of hardcore unthinking ideological activism and given our generally litigious American society, specifying these categories could become problematic.

Under our current law that specifies sex as a prohibited category of discrimination, California fine dining establishments cannot force men to wear ties to dine.⁷⁰ Strip clubs featuring male strippers may not restrict their audiences to female-only.⁷¹ With a specified category, courts do not evaluate whether a type of discrimination is legitimate or if it harms, courts prohibit it altogether.⁷²

Caste discrimination does not present the same potential pitfalls. There aren’t any legitimate reasons for a financial institution to take one’s caste into account when determining whether to make a loan. There is no legitimate reason that an employer should take caste into account when deciding whether to hire or promote an individual.

Caste should be irrelevant as a factor when one patronizes a business establishment. Caste should not be a factor affecting one’s education. Treating one differently based upon one’s ancestry rather than one’s individual merit is antithetical to the American and Californian way of life.

There is a good reason that professional boxing has multiple different size categories for professional boxers. A professional 6’5 250 lb (all muscle) male boxer and a professional 5’7 125 lb (all muscle) male boxer do not face each other in the ring. It’s not that one is superior or inferior as to the other or that professional boxing associations engage in some kind of “bigotry” - the differential treatment exists for the purposes of fair play and safety for the competing athletes. However, there are no legitimate reason to separate professional boxers by what caste they belonged to.

There may be fear over what non-discrimination laws might force individuals to do when it comes to their own personal lives. But this should not dissuade anyone from supporting SB-403.

Non-discrimination laws do not prevent people from having dating and sex preferences; those are their own protected individual constitutional rights.⁷³ Non-discrimination laws do not require one to include people within their personal social circles.⁷⁴

Because our state and federal constitutions both strictly prohibit so-called “hate speech” laws, there is no risk of criminal prosecution for Lilly Singh’s Indian Auntie for repeating a negative stereotype about Indians from a certain caste.⁷⁵ Nor is there a risk of civil liability for her either.⁷⁶ Nor do non-discrimination laws intervene with a religious institution's desire to segregate by caste as a religious decision.⁷⁷

Americans retain the freedom to associate with who we want and make personal decisions without government intervention. Members of a caste who identify strongly with their caste will retain the freedom to personally support their fellow caste members. If one only wishes to shop at stores owned by their fellow caste members or invest in businesses owned by fellow caste members, they remain free to do so. If one wishes to hire a real estate broker, financial advisor, accountant, general doctor, dentist, general contractor, architect, only from their own caste, one is free to do so.

To give an example of how strong broad and comprehensive civil rights statutes prohibiting discrimination intersect with individual rights, consider the example of a gay bar or gay club. In California, no bar, club, or restaurant could ever legally declare itself for “gay and lesbian people only” and keep straight people out.⁷⁸ But anyone who only wanted to personally invest in bars, clubs, and restaurants owned by gays and lesbians has every right to accordingly limit their investments.

SB-403 will not operate any differently. Instead, SB-403 will ensure that caste cannot be used where we have decided as Californians (and Americans) to prohibit discrimination on the bases of sex, race, caste, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, gender identity, gender expression, citizenship, primary language, or immigration status.

I applaud Senator Wahab and Assemblywoman Bains for introducing SB-403. It will protect Californians against discrimination that has no place in the state and ensure California’s society remains an open one where all may dare to live their lives and pursue their dreams free from discrimination on the basis of irrelevant immutable characteristics that are no more than an accident of birth.

The California State Legislature should pass SB-403.

1. https://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml?bill_id=202320240SB403

2. https://castefiles.com/sb-403-unresolved-issues-and-shifting-perspectives-on-adding-caste-as-a-protected-category

3. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author's scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

4. https://www.hrw.org/reports/2001/globalcaste/caste0801-03.htm

5. https://apnews.com/article/india-government-seattle-religion-9acca1a7e005231ecfff35756f211c9c

6. https://www.npr.org/sections/codeswitch/2018/04/25/605030018/when-caste-discrimination-comes-to-the-united-states