Updated: Jul 15, 2020
By Shelby Matsumura
Racial scapegoating in the face of a crisis. An ugly yet customary occurrence in American history. From the internment of Japanese Americans during World War II to the discrimination and mistreatment of Muslim, Arab, and Middle Eastern people after the 9/11 attacks, entire populations belonging to different races and religions are often thought of as the direct cause of these events. This act of singling out a person or a group for unmerited blame and consequent adverse treatment is known as scapegoating. Scapegoating often goes hand in hand with xenophobia, which is the fear, dislike, or prejudice against people from other countries. Xenophobia does not always come from a place of bigotry, but it can result from misinformation or, simply, people being scared of what is considered “foreign” or unknown.
Lately, nothing has been scarier than the Coronavirus, and once again, we’ve found a new scapegoat. With our own president referring to COVID-19 as the “Chinese Virus,” and “Kung Flu,” Chinese people and other Asian Americans are being unfairly singled out and discriminated against as the perceived cause of this pandemic. With over 20.4 million people living in the U.S. who are of Asian descent, according to the Pew Research Center, reports of Coronavirus-based discrimination are rolling in fast and heavy.
In early April 2020, the Asian Pacific Policy & Planning Council (A3PCON), in partnership with Chinese for Affirmative Action (CAA), released a report sharing anecdotal evidence of discrimination and abuse that Asian Americans have experienced as a result of COVID-19. The report can be read here, but the stories are organized by upsetting categories such as “Barred from Establishment,” “Coughed/Spat Upon,” and “Physical Assault.” Cynthia Choi, the co-executive director of CAA (a San Francisco-based advocacy group), told Bloomberg Law that these “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.” Employment attorneys and academics have echoed this sentiment, warning to expect such discrimination before, during, and after the pandemic.
The U.S. Equal Employment Opportunity Commission (EEOC) has prior experience dealing with racial discrimination resulting from national crises. After the 9/11 attacks, the agency also tracked race, national origin, and religious discrimination charges filed by Arab, Muslim, Middle Eastern, South Asian, and Sikh workers, or those perceived to be. David Lopez, the EEOC’s general counsel during the Obama administration and current co-dean at Rutgers Law School, draws a parallel between what happened after 9/11 and what’s happening now, except that after the attacks, President George W. Bush urged people not to discriminate or subject others to harassment. In contrast, Trump actively fuels this racial bias with his “Wuhan flu” semantics via social media and national conferences.
As the U.S. primes itself for re-opening businesses and having employees return to work, employers need to be aware of the current state of Coronavirus related discrimination and how it may carry into the workplace. Instances of such discrimination can bring serious legal claims against employers under Title VII of the Civil Rights Act of 1964. This Act prohibits discrimination on the basis of “race, color, religion, sex, and national origin.” The law also makes it illegal for an employer to retaliate against anyone who reports discrimination, files a charge of discrimination, or participates in an employment discrimination investigation or lawsuit. In the context of discriminating against Asian Americans, discrimination will likely be based on race or national origin under Title VII. Although race and national origin may seem similar, discrimination based on national origin in, for example, a job listing would be “anyone born in China need not apply.” Race-based discrimination, on the other hand, would be “Chinese people need not apply.” Further, it’s important to note that while we often talk about the role of employers in such scenarios, Title VII applies to the behaviors of employers, co-workers, customers, and clients as well.
In bringing workers back or hiring new ones, it’s reasonable for small business owners to want to reduce their chances of introducing COVID-19 into the workplace. But, refusing to hire an Asian candidate because you believe they are more likely to have the Coronavirus is not only a fallacy, but a violation of Title VII. If employers want to hire individuals while keeping concerns over the Coronavirus in mind, here are a few ways they can do so without racial implications. For more information, check out this article by Forbes.
· Screen job applicants for symptoms of the Coronavirus
· Ask a new hire to delay their start date because they have the Coronavirus or are suspected of having it (e.g. they are demonstrating flu-like symptoms)
· Decide not to hire a job applicant because they are unable to come work on the starting date due to the applicant having (or being suspected of having) the Coronavirus
Thus, it is appropriate for employers to screen for Coronavirus symptoms in evaluating potential hires, but they cannot use race or national origin as a “proxy” to avoid hiring someone with COVID-19. Assuming someone has the Coronavirus or is simply more likely to have it because they are Asian is prohibited under Title VII. If adopting any policies aimed at preventing the spread of the Coronavirus in the workplace, employers must take care to avoid stereotyping or acts of racial prejudice.
However, these concerns get more complicated if employees or job candidates share that they have recently traveled from a country that has experienced a Coronavirus outbreak, like China. In these cases, employers may be able to reject a job applicant for visiting a highly affected area because a person’s recent travel history is not a protected class under Title VII, nor under the Americans with Disabilities Act (ADA). Nevertheless, refusing to hire someone because of their recent visits to China can also lead to another form of illegal discrimination called disparate impact.
According to the Society for Human Resource Management (SHRM), “disparate impact occurs when policies, practices, rules or other systems that appear to be neutral result in a disproportionate impact on a protected group.” For example, if a business enacts a seemingly neutral policy such as not hiring anyone who has recently traveled to China, this could create a potential disparate impact claim if it disproportionately affects Chinese employees or job applicants. Thus, if an employer implements this policy, and only the Chinese or Asian employees are affected, this would be a cause for disparate impact.
Now, who would be liable if an employee filed a discrimination claim under Title VII? Of course, if the business owner committed the discriminatory act, then they would be held responsible. But, an employer is also automatically liable for any harassment by a supervisor that results in a negative employment action, such as failure to hire or promote, loss of wages, or termination, according to the EEOC. If a supervisor is creating a hostile work environment, an employer can only avoid liability if they can prove that:
· They reasonably tried to prevent and promptly correct the harassing behavior; and
· The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer
This standard is different, though, if the harassment is committed by non-supervisory employees or those who aren’t employees like customers. In these cases, employers will be liable only if they knew or should have known about the harassment and failed to take prompt and appropriate corrective action. Generally, HR can help small business owners avoid any legal liability by taking all complaints of discrimination seriously and promptly conducting a good-faith investigation. For more information on employer liability under Title VII, check out HR Dive.
Small business owners are consumed by the logistics of re-opening and ensuring a safe workplace for their staff and for their customers. While it’s essential for employers to protect the health of their employees against the Coronavirus, employee safety will also depend on the social climate of the environment employees will be returning to. As so aptly put by Teresa Ellis, a national executive board member of the Asian Pacific American Labor Alliance (APALA) in Washington, D.C., “Viruses don’t discriminate… Blaming Asians or people of any race or ethnicity, not only doesn’t help us combat this crisis, but it actively works against us at a time when it’s in everyone’s interests to stand together.” The presence of race or national origin-based discrimination creates significant liability for you, as the employer, and the business you are trying to keep afloat. Even if an employee, who is experiencing discrimination, does not report the incident, it will cause a divide in your team and be counterproductive to any efforts you make in reopening your company.
According to the ABA Journal, Lori Ecker (the owner of the Law Office of Lori D. Ecker in Chicago) recommends that as soon as employees return to the workplace, make a formal announcement to the entire staff that blame or harassment of any ethnic or national origin group violates their workplace policies. She further suggests implementing bystander intervention training, so employees understand that if they see one of their co-workers being harassed, they also need to report it to a supervisor or human resources. Here are a few more ways small business owners can reduce stigma and fight against discrimination, as provided by the CDC:
· Maintain the privacy and confidentiality of those seeking healthcare and those who may be part of any contact investigation.
· Correct harmful or discriminatory language that can cause stigma by sharing accurate information about how the virus spreads (Hint: it’s not spread by ethnicity)
· Speak out against negative behaviors and statements, including those on social media
· Make sure that images and language used in communications celebrate the diversity of your team and do not reinforce stereotypes
· Share virtual resources for mental health or other social support services for people who have experienced stigma or discrimination.
Unfortunately, this type of racial scapegoating in response to a crisis is nothing new for the United States. However, we are more aware of this tendency now and have greater means of sharing information widely and faster than ever. Xenophobia can often come from a place of misinformation, so it’s important to educate each other on COVID-19 related discrimination against Asians to reduce these incidents. As we look to reopen the country, it will be on the shoulders of employers to protect their Asian employees from bias and stereotypes regarding the Coronavirus and to implement anti-discriminatory policies. The only way to avoid liability is to take every claim seriously and respond swiftly.
For further information and strategies for combatting Asian scapegoating and xenophobia in the workplace, the Asian Pacific American Labor Alliance (APALA) released guidance on how to protect AAPI (Asian American and Pacific Islander) workers in light of COVID-19.
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