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Biden Aims to Tamp Down on Asian Bias Spike Fueled by Pandemic

Jan. 27, 2021, 5:13 PM

The Biden administration’s attempt to curb xenophobia directed at Asian Americans and Pacific Islanders follows a spike in hate crimes and incidents of assault, bullying, and shunning during the Covid-19 pandemic.

President Joe Biden signed a memorandum on Tuesday acknowledging those harms and said his administration will condemn and denounce such discrimination. The action has immediate implications for employers and their workers, who have reported coronavirus-related harassment and discrimination directed at Asians and Pacific Islanders, according to attorneys and academics.

His move stands in contrast to former President Donald Trump and Republican leaders referring to Covid-19 as the “Chinese virus” throughout the pandemic, referring to its origin in Wuhan, China. Racial slurs such as the “Kung Flu” erupted on Twitter.

Biden’s memorandum directs the Department of Health and Human Services to consider issuing guidance describing best practices to enhance cultural awareness, and for the Justice Department to work with Asian American and Pacific Islander communities to prevent hate crimes and harassment.

And while the memo doesn’t explicitly include additional job protections, it still touches on workplace issues, according to Littler Mendelson shareholder David Goldstein. He assists employers with workplace legal compliance.

“In explicitly condemning inflammatory and xenophobic rhetoric while emphasizing the contributions of Asian Americans and Pacific Islanders during the current crisis and in the past, the president makes it easier for employers to advance workplace policies that are focused on respect and inclusion and also, hopefully, shifts the focus for some employees from perceived grievances to shared values,” he said in an email.

The U.S. Equal Employment Opportunity Commission signaled last year that workplace bias against Asian people could be heightened, similar to what happened to Muslim Americans in the aftermath of the Sept. 11, 2001, terrorist attack. The bipartisan civil rights agency, which enforces anti-discrimination laws among private employers, spoke out against offensive rhetoric targeting Asians.

In his first week in office, Biden has rolled back several measures and policies from the Trump administration, including an order that banned diversity initiatives at companies that allegedly promoted anti-White animus. Focusing on these policy changes could telegraph where the federal government could ramp up anti-discrimination enforcement.

“There is a role for federal and state governments to play. We want to make sure they do it in an appropriate manner, so that people feel safe,” said Manjusha Kulkarni, executive director of the Asian Pacific Policy and Planning Council."Promising is a first step. It’s important to signal to Americans that racist rhetoric won’t be tolerated. The next step is to act on that.”

Bias Heightens

The EEOC didn’t immediately provide updated statistics on the number of charges the agency has received during the pandemic alleging discrimination or harassment against Asian American and Pacific Islander workers.

However, following 9/11, the agency saw a 250% increase in the number of religious discrimination charges involving Muslims. Worker must file discrimination charges with the agency before suing an employer.

The DOJ’s Civil Rights Division also combats discrimination on the basis of race and national origin in a number of sectors, including state and local government employment.

Responding to a request for comment on the rise of hate crimes against Asian Americans and Pacific Islanders during the pandemic, the department pointed to its website, which contains data through 2019. More than 57% of single-bias incidents cataloged that year were motivated by race, ethnicity or ancestry bias.

Recent reports and academic studies have attempted to capture the breadth of the discrimination that Asian communities have faced during the pandemic.

The Asian Pacific Policy and Planning Council’s Stop AAPI Hate tracked 2,800 reports of bias since March using an online reporting system that found these groups were spat on while out walking, told to leave establishments, and assaulted.

The council also tracked reports of discrimination in the workplace, housing, and public accommodations, finding examples of name-calling, targeted firings, and other harassment. Asian Americans have also been hit harder by job losses during the pandemic, as compared to other groups of workers, with almost half of jobless Asians out of work for at least 27 weeks.

Asian Americans felt the effects of the pandemic beyond medical and financial concerns, according to a July report from the Pew Research Center. Among all U.S. adults, 39% said it is more common for people to express racist or racially insensitive views about people who are Asian than it was before the coronavirus outbreak.

More Conversations to Come

Goldstein said it was challenging during the past administration to have workplace conversations about issues like race, sex, and national origin, and language stemming from the country’s highest office has an impact on that.

“Having a president say that racism and intolerance is wrong empowers people to stand up for what’s right,” he said. Comments about the virus’s apparent origin from China fueled racist workplace comments, according to Goldstein.

“That just exacerbated the general tone that the conversation has been taking,” he said.

Biden’s call to action for the Justice Department “helps to frame the problem in a way that puts employment front and center, said Kalpana Kotagal, a partner with Cohen Milstein Sellers & Toll, who represents workers in discrimination litigation.

“Language matters, and language signals intention,” she said. “This very loaded and candidly racist language from the Trump administration has consequences.”

Solutions to Bias

Kulkarni of the Asian Pacific Policy and Planning Council said education and tracking data about hate crimes and incidents would be a positive way for the administration to address discrimination. She said only tracking incidents that rise to the level of a crime fails to capture the gravity of the animus against Asian Americans.

More education could serve to cut down on violent crimes and microaggressions toward Asians, said Sara Waters, a Washington State University professor who authored a study on Asian American harassment during the pandemic.

Waters surveyed 400 people and found similar findings to other groups about harassment, assaults, and bullying. But she said Asian Americans who lived in diverse communities said they didn’t experience bias. This could indicate that education and awareness of different cultures could help tamp down on xenophobia, she said.

“It will be important for this administration to be proactive and figure out people’s health and well-being and recovery in a lot of ways,” she said.

To contact the reporters on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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