A Community-Based Approach to Anti-Discrimination
By Isra Syed (she/her) • June 3, 2021 • Vol. 01 No. 06
Illustration by Shebani Rao (she/her)
Editor’s Note: Restorative justice, which encourages interpersonal dialogue between victims and perpetrators, has gained traction as an alternative to punishment for criminal offenses. In this essay, human rights attorney Isra Syed argues that restorative justice should play a role in civil cases as well—especially anti-discrimination cases. By establishing strong community-based support systems to facilitate repair in instances of discrimination, the United States can finally address the underlying conditions that perpetuate oppression.
On June 30, 2020, the California Department of Fair Employment and Housing filed a lawsuit against Cisco on behalf of John Doe, a Dalit Indian worker who alleges that his supervisors of Brahmin (upper-caste) Indian backgrounds discriminated against him due to his caste. Doe alleges that, upon learning that he is Dalit—a member of the lowest tier of India’s caste system—his supervisors took away his workplace responsibilities, isolated him from his colleagues, made discriminatory statements against him, and failed to give him previously promised raises and bonuses. Doe further alleges that Cisco failed to take appropriate and timely action when he complained about this treatment, and that the company lacked sufficient training and monitoring of workplace discrimination to prevent such behavior.
Department of Fair Employment & Housing v. Cisco (“Cisco”) is the first caste discrimination case to be heard by a U.S. court. But even more remarkable is the chain reaction it set off. Since the case was filed, more than 250 Dalit workers in Silicon Valley have reported similar discriminatory incidents on the basis of caste in their companies, shedding light on a significant problem previously invisible to U.S. law.
One of the world’s oldest systems of social hierarchy, the caste system divides people into groups, granting various privileges to the upper castes while dictating the repression of oppressed castes. While caste discrimination has long been outlawed in India, it remains a looming part of the social landscape both in South Asia and its diaspora, often still informing a person’s access to resources, the community in which they live, and who they can marry. Many caste-oppressed Indians emigrated to the United States in part to escape the strictures of caste, only to see the caste system follow them to the United States. Some Dalit Americans choose to hide their identities to avoid prejudice and abuse from caste-dominant people, often living in fear of being outed.
Cisco is a source of great excitement for Dalit rights activists and human rights advocates globally. Thus far, the litigation has been a powerful symbolic step in raising awareness about the harrowing and pervasive problem of caste discrimination. It is also a moment of riveting potential for anti-discrimination law, which is being asked whether its doctrines, created to address specific types of American anti-Black racism, may also be of use to intervene in forms of racialized discrimination originating beyond U.S. borders. However, U.S. anti-discrimination law habitually fails to address the root causes of racialized discrimination no matter its origin. This raises questions about what more our political system can do to address this problem.
At its most aspirational, anti-discrimination law aims to protect marginalized communities in the United States—people of color, women, and queer people, among others—from ill-treatment. But Cisco has arisen at a moment in which anti-discrimination law is thoroughly in crisis, with more and more people doubting its power to meaningfully intervene in instances of oppression.
For years, courts have limited anti-discrimination law’s power with stringent intent requirements and conceptually narrow analyses of what constitutes discrimination. Often, courts resolve these cases by asking hypothetical questions about the effects of “race” or “sex” with no reference to the social and historical realities that precipitated the case. What’s more, most people cannot afford the high costs of legal services involved in bringing an anti-discrimination claim to court, especially if doing so might jeopardize their employment or immigration status. Perhaps most crucially, while an anti-discrimination case can financially compensate plaintiffs and validate their experience, anti-discrimination law has no mechanism to address the root causes of discriminatory behavior or facilitate healing for either party. Without understanding why someone engaged in discriminatory patterns—accounting for how these actions were borne out of culture, socioeconomic structure, and community practice, and making an effort to facilitate the parties’ transformation through dialogue and accountability—anti-discrimination law lacks the capacity to bring a meaningful and far-reaching resolution to the harm that occurred.
Cisco highlights these limitations. Whether or not Doe wins his case, a civil rights lawsuit has no power to push his supervisors to reckon with their alleged casteism and make meaningful amends. A lawsuit might ask whether the defendants did indeed treat Doe differently on account of his racial and religious background—and by winning, Doe could receive financial compensation, Cisco could be forced to enact new regulations about caste at the company, and the broader community might gain an opportunity to have important conversations about caste. But an anti-discrimination suit by itself is not equipped to help defendants interrogate the beliefs and conditioning surrounding caste that led them to engage in discriminatory behavior, nor does it ask the harmed parties what sort of repair they need to move forward with their lives.
Why did the defendants call out people as Dalit and maintain upper-caste professional networks? What motivated them to enforce a caste hierarchy, and did they see the harm this caused to their community? What would it take for Cisco to feel like a safe place for Dalit employees? Without such reckoning, litigation does little to intervene in a culture rife with casteism. At the end of the day, no one has been asked to do any internal work to understand that they committed harm, and so they cannot be counted on to avoid repeating the behavior, even if in subtler ways. In short, despite the symbolic power of legal action, we cannot litigate our way out of oppressive patterns of behavior, which live and reproduce in our histories, our psyches, our families, and our communities.
The United States needs a bold policy intervention: the creation of a public infrastructure for restorative justice.
The limitations of anti-discrimination law highlight a need for healing-oriented, community-driven approaches to addressing discrimination. To respond meaningfully to harms that occur between people, we must create spaces for parties to look honestly at what transpired, both at an interpersonal and a structural level, and to devise modes of accountability that lead to transformation for all—especially for those committing discriminatory harm. This approach is known as restorative justice. Its principles teach us that, to make our communities safer and more just, we must ground those who commit harm in community, giving them the tools to face those they have harmed and be held accountable on their victims’ own terms. The United States needs a bold policy intervention: the creation of a public infrastructure for restorative justice. Such an infrastructure would harness the resources of the state to equip people with tools to interrogate the social and psychological roots of subordinating behavior, to devise creative paths to rehabilitation and remedy, and to facilitate healing for all parties.
Why Anti-Discrimination Law Needs Restorative Justice
In recent years, restorative justice has emerged as an exciting mode of addressing harm, particularly as an alternative to the criminal legal system. Restorative justice has had tremendous success as an alternative to criminal legal punishment. For instance, in juvenile justice cases, studies show that restorative justice approaches have higher victim satisfaction rates and lower recidivism rates than more punitive alternatives. But restorative justice has not yet been explored as thoroughly for use in civil cases.
Loosely defined, restorative justice practices seek to address harms through accountability, dialogue, and making amends. Originating in indigenous conflict resolution practices, restorative justice frameworks see “crime” as a violation of people and relationships. Such violations create an obligation to make things right; however, the system restorative justice creates for righting these wrongs is deliberately non-adversarial. Instead, it operates with an eye toward understanding the full context in which the harm arose and its impacts, with an equal commitment to both parties’ rehabilitation. Unlike traditional criminal law contexts, which focus on parsing whether a legally defined injury occurred and what the appropriate penalty should be, restorative practices give the participants the opportunity to discuss the wrong’s impact, allowing them to collectively determine a way for the wrongdoer to make amends. Restorative justice processes usually consist of a series of meetings between the parties, facilitated by trained professionals, resulting in an accountability plan with follow-through and oversight.
We are all capable of violence, and we are all entitled to being held accountable with dignity and support. But doing so requires grappling with the full complexity of the circumstances, and a full taking of responsibility by the wrongdoer of their actions.
Restorative practices teach that violence arises from unmet needs paired with social conditioning. Our individual position in the world—as mediated by gender, race, caste, class, and family background—shapes our relationship to power, informing our complex responses to discomfort, authority, stress, group dynamics, and daily life, which have the potential to take the form of violence. We are all capable of violence, and we are all entitled to being held accountable with dignity and support. But doing so requires grappling with the full complexity of the circumstances, and a full taking of responsibility by the wrongdoer of their actions in relationship and community. At its heart, restorative justice is about remedy—about uncovering what the person who has undergone harm actually wants and needs.
This approach could revitalize civil law just as it has revitalized criminal law. Anti-discrimination cases are ripe for restorative interventions because they involve violations deriving from weighty cultural phenomena, such as racism, sexism, and casteism. Understanding our own participation in these systems and changing behavior around them requires deep reflection and accountability to others, which restorative processes are tailored to facilitate. Restorative processes also emphasize the larger community’s responsibility in allowing individual instances of identity-based violence to proliferate, providing avenues for broader accountability than the law is currently able to envision.
If restorative justice is going to be a viable resource to people confronting civil harm, it needs to have a robust home out in the community with a meaningful yet autonomous relationship to legal institutions and corporations.
This idea isn’t totally new. Indeed, there has been a recent push by advocates to have workplaces address discrimination through restorative dispute processes. As Cisco shows, however, internal dispute mechanisms are often woefully unprepared and ill-incentivized to recognize and respond to harm internally because they are not accountable to the outside world. If restorative justice is going to be a viable resource to people confronting civil harm, it needs to have a robust home out in the community with a meaningful yet autonomous relationship to legal institutions and corporations. Doing this is no small task—it will require infrastructure.
How Restorative Justice Can Reshape Anti-Discrimination Law
For restorative justice to work in anti-discrimination contexts, we need public infrastructure that will allow it to thrive, with ordinary people setting its agenda. The idea of increased state involvement sparks a strong reaction in many restorative justice circles. And for good reason: the state is largely responsible for the current system—centered on criminalization—that advocates want to leave behind. But the idea of infrastructure is important: instead of simply bringing a community practice under state authority, increased public support could help spread restorative justice tools to everyone.
Imagine that every city or town housed a restorative justice collective, founded and run by residents of the community. State budgets would fund these collectives, which would be staffed by experienced teachers and connectors with skills to train members of the community in restorative practices. Every institution in your town—the grocery store, the library, the synagogue, the major tech employer—would contain multiple people willing to volunteer in restorative justice processes. You might be able to receive a flat tax credit for your own training and participation.
When a harm occurs in the world and someone lodges a complaint, courts could give parties the option to have the case diverted to their local restorative justice collective, which would put together a panel well-equipped to facilitate the process. Parties could always opt to litigate if they like—but they would have a robust third option of accountability positioned to reckon with the structural problem in fresh, helpful ways. Such an infrastructure could radically reshape how we address violence in our society, even if it doesn’t completely replace a traditional legal system.
While this may seem like a far-fetched dream, there are a number of simple policy interventions that we can start to build out now to get there, including creating funding streams for restorative justice programs, building avenues to connect people to restorative processes, and incentivizing everyone’s participation in a restorative culture.
Expanding Restorative Justice Programs for Civil Needs
The first requirement is resources—financial, educational, and organizational. Expanding our collective access to restorative justice means ensuring that it is widely accessible, well-executed, and embedded into communities who can use it. In the criminal context, successful restorative justice programs typically involve the collaboration of three different entities: community-based organizations that house and run restorative programming, technical restorative justice training organizations, and state partners.
For instance, in the San Francisco Bay Area, organizations such as Community Works West and the RYSE Youth Center house restorative justice programs for criminal cases diverted from partner District Attorney offices. They receive technical assistance from restorative justice organizations such as Impact Justice to support their work. Other organizations in the state, including the Ahimsa Collective and the California Conference for Equality and Justice, primarily work to train restorative justice facilitators and volunteers, while also running their own restorative justice programs. Moreover, some states, such as Colorado and Vermont, have passed laws creating agencies that oversee restorative efforts. All of these organizations rely on funding from private philanthropy and state grants to function.
To build a more robust restorative justice infrastructure that can also address civil anti-discrimination needs, state and local governments must expand the financial support they offer to community organizations to run restorative programming and provide restorative justice trainings. Cisco reveals the importance of making such funding and resources available to a diverse set of organizations. The Cisco parties would have benefitted from a South Asian community organization with expertise in caste-conscious restorative justice facilitation. If state and local governments diverted portions of their criminal or court budgets to create funding streams for programming and training organizations, it would be possible to expand the scope of this work greatly.
Using restorative justice processes could give more people access to justice and create a less expensive justice system overall, allowing more resources to be used for other purposes.
It’s easy to suggest reallocating budgets to new programs, but very hard to do at a time when states (and people) are experiencing unprecedented financial hardship and uncertainty. Critically, however, taking such action could actually cut overall expenditure in the long run. In the juvenile justice context, the average cost of restorative justice diversion is estimated to be around $10,000, a pittance compared with the $493,000 required each year to incarcerate a young person. A party’s median cost of litigating a civil case ranges between $43,000 and $122,000 on average, suggesting that using restorative justice processes could give more people access to justice and create a less expensive justice system overall, allowing more resources to be used for other purposes.
Connecting Parties with Restorative Resources
Many people, particularly impacted parties from marginalized communities, may not know that they can access restorative justice in cases of civil harm. For restorative processes to be accessible to everybody, courts will need systems in place to connect people with those resources. States could make this happen by passing civil diversion legislation, which would give courts the discretion to send anti-discrimination cases to a restorative justice organization as a first step before moving forward with litigation. In the criminal context, eight states have already adopted diversion legislation, sometimes subject to certain case restrictions, which could be a helpful model to expand upon.
Notably, as useful as restorative justice processes are, they may not be appropriate in every anti-discrimination case. For instance, where a case involves a corporate institutional policy inflicting systemic harm against a group (e.g., a company emitting waste in multiple predominantly Black neighborhoods), engaging in a restorative justice process may not be practical or useful. Civil diversion legislation should explicitly limit its applicability to claims between individuals—otherwise, corporations may evade legal accountability. Such an approach has the added benefit of allowing courts to focus their attention on cases of institutional discrimination, which could enhance the coherence of legal doctrines and reduce administrative burdens.
States could also consider passing legislation offering restorative justice as a potential sanction in anti-discrimination cases, either in place of or along with other penalties, at a court’s discretion. For instance, if plaintiffs were to win the Cisco case, the court could assess whether a restorative justice process would be a useful remedy and ensure that it happens. Four states have enacted similar legislation in the criminal context, and this approach has the added benefit of giving parties the opportunity to experience restorative justice processes even if they also desire a more traditional judicial process.
Investing in a Culture of Restorative Justice
The project of building restorative justice infrastructure is ultimately an invitation to a collective commitment to healing and self-awareness regarding our own involvement in systems of violence that affect other people.
The project of building restorative justice infrastructure is ultimately an invitation to a collective commitment to healing and self-awareness regarding our own involvement in systems of violence that affect other people. To work optimally, this project requires a critical mass of people to actively engage in such work as a daily practice. Restorative justice infrastructure is not a policy intervention that can be enacted at the ballot box and then forgotten. It requires each of us to do our own self-interrogation regarding where we, too, may see a harm-doer in ourselves. And it requires that we all cultivate a capacity for bringing restorative principles into the spaces we move through. In this vein, policy interventions that incentivize people to take time to receive restorative justice training, as well as to engage in their own therapeutic work, would be profoundly beneficial.
Concretely, states could create a flat tax credit for individuals who receive training or volunteer on a restorative justice panel in a given year, as well as a deduction for workplaces and other institutions that send a certain number of employees to be trained. Such policies would increase the likelihood that a case like Cisco would receive a restorative justice process that was culturally relevant and helpful.
Furthermore, because the success of restorative justice hinges on individuals being in touch with their own conditioning and reactions to others, any policy interventions that could make mental health services more readily accessible to the general public—particularly for those who hold power over others—would enhance the efficacy of this project. For instance, if our Cisco defendants had a practice of critically reflecting on their relationship to systemic power (something most of us do not have), it is possible that the events of this case may have gone differently. At the very least, access to psychotherapy and counselling could help people respond most constructively when they commit harm and when they experience harm.
Building a restorative culture is an endeavor we can begin ourselves even before any new laws make it through Congress. We can all engage in restorative training and bring these practices into our friend groups, our families, and the institutions we participate in. One place to begin is through pod-mapping, or reflecting on who you feel comfortable approaching both when you experience harm and when you enact harm. Having conversations with people in your pods and networks about how to strengthen your mutual capacity to support each other through harm is an excellent first step to the dimension of this work that hinges on small cultural changes.
Ultimately, a restorative justice infrastructure would commit serious state resources to an individual’s reckoning with her capacity to do harm no matter who she is, while keeping alive the hope that we—yes, we—can make sense of and move beyond patterned ways of enacting violence on one another in the shadows of history, inheritance, and structure. Cisco is still on its way to trial in California state court. In the meantime, it has sparked numerous important conversations about caste in the United States. Another similar case pertaining to caste exploitation and labor trafficking was just filed this May.
I follow these developments with great excitement. I tell my parents—Indian Muslim immigrants with their own unique mix of longstanding struggle and complicity with Brahminism—about it, and glow in their excitement that someone might finally be punished for a great legacy of pain. I hope the plaintiffs win their case. But what I want even more is the kind of reckoning that no court order can deliver: a reckoning that starts within, one by one, with each of us, every time any one of us is harmed, about what we have done and what we have witnessed. This is an invitation to build that out together.
Isra Syed (she/her) is a human rights attorney and writer. She graduated from Yale Law School in 2019 and clerked for the Honorable William K. Sessions III in the U.S. District Court for the District of Vermont.
Edited by Catherine Crooke (she/her)
