The Supreme Court’s recent decision in Bostock v. Clayton County held that although Title VII does not recognize LGBTQ+ status as a protected characteristic, LGBTQ+ discrimination is not possible without impermissibly taking into account a person’s sex. Sex is a protected characteristic under Title VII, meaning employers are generally prohibited from using sex as a factor at all when making employment decisions. The Court’s reasoning seemed odd to many observers and court watchers at the time, with at least one commentator pondering the potential implications of such a ruling. We may be about to see how impactful the Bostock decision might be outside the realm of LGBTQ+ protections.
A California tech employer has been sued by an employee claiming, among other things, national origin discrimination. The employee in question is of Indian origin and alleges that their fellow Indian co-workers discriminated against them based on his caste—hereditary class in Hindu society.
However, Title VII does not list “caste” as a protected characteristic. According to the lawsuit, the employee first complained internally, but the employer’s HR department determined that caste discrimination is not illegal under federal law. Given the typical pace of litigation, it is likely that determination was made well before the Supreme Court’s ruling in Bostock just one month ago, and that analysis might have a very different outcome today.
The reasoning in Bostock suggests that the plaintiff in this case has a valid claim under Title VII. Bostock requires one to ask whether or not the discrimination in question is possible without impermissibly taking into account one of the protected characteristics under Title VII—in this case national origin or possibly religion. If the answer is no, then the employer would necessarily violate Title VII by allowing discrimination based on caste, much like the employer in Bostock necessarily violated Title VII by discriminating against a gay employee.
The question for employment lawyers should be just how potentially far-ranging the Bostock case really is. For example, could an employer in Kansas legally discriminate against workers from Missouri? What about discriminating against people from “the wrong side of the tracks” in the same town? Is there a back-door entrance into protection under Title VII for socio-economic status? Should there be?
From a policy standpoint, the answer might be yes. Stepping back from Title VII a bit reveals a commonality among the enumerated protected characteristics. Race, color, religion, sex, and national origin are all things people are born into and that typically do not determine whether or to what extent a person is qualified to perform the functions of a particular job. Using such characteristics as factors in making employment decisions is so harmful the United States Congress made it illegal. How, then, are things like caste or growing up in public housing any different?
The “problem,” to the extent that there is one, would be in the myriad ways a particular “unprotected” characteristic might be sufficiently tied to a “protected” one to implicate existing nondiscrimination laws. Some might argue that such a broad reading of Bostock is simply untenable from a practical perspective, but “it’s too complex” is generally not an excuse for violating the law.
Rather than wait and worry over the extent to which the implications of Bostock might be clarified in the future, wise employers will simply focus on ensuring that employment decisions are made based on factors that are job-related and a business necessity. By focusing on the larger lessons of laws like Title VII, rather than getting lost in the weeds, employers will naturally avoid the vast majority of potential problems to begin with.