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Job Discrimination in Pandemic Can Extend Past Asian Workers

April 15, 2020, 10:01 AM

The coronavirus has led to reports of discrimination against people of Asian descent in the U.S., and attorneys say bias linked to the pandemic will ripple through the workplace and affect employees of other races and those with disabilities.

The Equal Employment Opportunity Commission signaled that it will track charges related to Covid-19, a sign that there could be an uptick in discrimination against certain groups in the workplace. President Donald Trump called Covid-19 the “Chinese virus” for weeks leading up to its rapid spread in the U.S., referring to the origin of the disease in the Wuhan area in China, and reports of harassment and bullying against Asians around the country have surfaced.

As the virus spreads, Chinese Americans have shared stories of coworkers abusing them or employers signaling them out and asking them not to return to work, echoing similar discrimination against targeted racial groups following the Sept. 11 and Pearl Harbor attacks.

Apart from anti-Asian discrimination, the pandemic could also produce claims under the Americans with Disabilities Act and broader race discrimination claims due to the disproportionate risk of exposure and illness for black and Latino employees. Certain employment policies, such as failing to provide appropriate protective equipment, distancing, or other reasonable accommodations, could have a disparate racial impact on employees, said Vicki Schultz, professor at Yale Law School.

“We are seeing scenarios out there that lie at the intersection of disability and race,” Schultz said. “Many of these problems we have will expose underlying structures of disadvantage.”

Early Reports Flood In

The most recent reports from the Asian Pacific Policy and Planning Council highlight allegations of workplace discrimination. Anonymous workers said they were accused by a coworker of “eating a bat” or were isolated at work as bullying significantly increased. Another worker was asked not to return to a yoga studio where she worked “as a precautionary measure.”

Reports of hostility—which range from assaults to subtle shunning—toward these groups provide just a snapshot of what is happening and will continue around the country, said Cynthia Choi, co-executive director of Chinese for Affirmative Action, a San Francisco-based advocacy group. They put out a call for incident reports along with the Asian Pacific Policy and Planning Council.

The nonprofits created an online reporting system that found in recent weeks that Asian Americans were spat on while out walking, assaulted, and told to leave establishments. This type of anecdotal evidence provides early signs of the types of discrimination to expect before, during, and after the pandemic, employment attorneys and academics say.

“We assume when people can return to work, we will see workplace discrimination rampant. It’s hard to reel back in the racist ideology about the root cause of the virus,” Choi said. “In the workplace, it’s inappropriate jokes, others being terminated or those asked to isolate themselves in the workplace because they are Asian.”

Racial Disparities

Besides hostile work environment harassment, Asian workers could face discrimination in hiring, firing, and promotion, due to ignorance and fear, attorneys said. Disability discrimination claims also could increase, as employers negotiate how to protect individual employees, their workforce, and customer base from the threat of the virus.

Schultz of Yale Law School said disability discrimination lawsuits will likely come from the pandemic, given the considerable complexity of hiring and firing decisions that are being made related to the virus while employers balance complying with federal anti-discrimination laws and keeping the workplace safe.

If certain groups are at the highest risk of being exposed on the front lines, that could lead to racial discrimination lawsuits, as well.

“If an employer fails to take steps to protect their workers, and harm fell harder on black or Latino employees, they could be liable,” she said. “At this moment, we see ways in which it’s not an arcane problem and the pandemic affects a broad group.”

Employers shouldn’t take the opportunity to make reductions in force and single out certain groups, said Carolyn Wheeler, a former EEOC lawyer currently with Katz, Marshall & Banks in Washington. She said some workers in an unstable job market may fear speaking up or joining together to speak out against workplace conditions.

“Employers need to remember anti-discrimination and whistleblower laws are still going to be enforced,” Wheeler said. “The situation can allow implicit bias to flourish.”

Blowback Discrimination

The EEOC has experience with targeted workplace discrimination and harassment in the wake of a global event. After the Sept. 11 attacks, the agency tracked race, national origin, and religious discrimination charges filed by Arab, Muslim, Middle Eastern, South Asian, and Sikh workers, or those perceived to be.

In the initial months after Sept. 11, the EEOC saw a 250% increase in the number of religion-based discrimination charges involving Muslims. The EEOC filed several lawsuits in the following years. The agency recently implemented a code in its charge management system that will identify any bias claims filed by workers that are specifically related to Covid-19.

The EEOC was proactive following the Sept. 11 terrorist attacks because of the historical recognition of abuse to Japanese people after World War II, said David Lopez, the EEOC’s general counsel during the Obama administration, and now co-dean at Rutgers Law School. He said there are some parallels with that time and the current moment, but pointed out that after the attacks President George W. Bush urged people not to discriminate, while Trump potentially fueled the bias with terms such as “Chinese virus.”

“We hear about anecdotal blowback already,” Lopez said. “This administration is fermenting backlash against one group for political reasons.”

Trump announced he’d stop calling Covid-19 a “Chinese virus.” In response to criticism over the phrase, he previously said the term wasn’t racist and was a description of the virus’s geographic origin.

Political rhetoric plays a role in workplace discrimination, and it’s possible for people to blame a race for a negative public event, said Amy Bess, shareholder and labor and employment chair at Vedder Price in Washington. She said harassment is already playing out in essential businesses, such as grocery stores and other customer service businesses that remain open.

“Employers need to protect workers from harassment,” said Bess, who represents companies. “You are seeing anecdotally, people spitting at Asian people on the streets and yelling obscenities, that could translate to the workplace. Bottom line to me: education and information is so critical. Discrimination claims come from a level of ignorance.”

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergtax.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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