Employment Blog

Behind the Headlines: Discrimination Based on Inherited Caste Illegal Under Massachusetts Law

02/22/2023 | by Brian J. MacDonough and Nancy S. Shilepsky


Employment Blog

Behind the Headlines: Discrimination Based on Inherited Caste Illegal Under Massachusetts Law

By Brian J. MacDonough and Nancy S. Shilepsky on February 22, 2023

A recent headline in the Boston Globe read: “Caste should not be part of the American Dream.” The article, authored by Professor Gaurav J. Pathania, went on to discuss the impact in the United States of a caste system with origins in India and other South Asian countries, describing it as “a complex, rigid, and hierarchical structure of privilege based on birth.” As the article explains, the caste system negatively impacts United States workplaces and workers in ways that some governments, universities, and companies are trying to eradicate.

Under Massachusetts anti-discrimination law, unlike Federal law, inherited caste status is likely already a protected characteristic as it is based on one’s “ancestry.”  The following is unlawful in Massachusetts:

“For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, gender identity, sexual orientation…, genetic information, pregnancy or a condition related to said pregnancy…, ancestry or status as a veteran of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.”

MGL. c. 151B, sec. 4 (1) (emphasis added); see, e.g., MCAD v. The Martin Group, Inc., MCAD Docket No. 15 BEM-02613 (Guastaferri, Hearing Officer) (Dec. 22, 2017) (retraction of job offer based on Arab ancestry and reliance on “unfounded assumptions and stereotypical thinking” that is “often the essence of discrimination”); compare Title VII of the Civil Rights Act of 1964, as amended, 42 USC sec. 2000e-2(a)(1) (making it unlawful to discriminate based on “race, color, religion, sex or national origin”).

As with other forms of unlawful discrimination, it is no defense that the discriminator and the target share one or more protected characteristics.  See, e.g., Castaneda v. Partida, 430 US 482, 499 (1977) (“Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.”); U.S. Equal Opportunity Commission Compliance Manual, Section 2-II.A (“The EEO statutes prohibit a member of a protected class from discriminating against another member of the same protected class.”).  Thus, if ancestry is the basis of discriminatory treatment, it is unlawful even if inflicted by a person of the same race, color, sex, religion, national origin, or, in Massachusetts, ancestry as the target.

If employees believe that they have suffered discrimination based on inherited caste, they should consult counsel immediately.

Brian J. MacDonough – Partner, Employment Department Chair

Brian J. MacDonough, chair of the Employment Department, counsels and represents executives and professionals in sophisticated employment and compensation matters and employment litigation.

Nancy S. Shilepsky – Partner

Nancy S. Shilepsky is a leading influence in the world of executive advocacy, employment law and employment litigation and a partner in Sherin and Lodgen’s Employment Department.