“Political leaders in the San Francisco Bay Area are forming task forces and speaking out against anti-Asian violence,” the Wall Street Journal reported last week, amid “a spate of recent incidents that include two assaults against elderly men that were captured on video.” Alameda County District Attorney Nancy O’Malley, who recently created a special response unit in response to such enduring violence, told the Journal that “since the onset of COVID-19, we have seen an uptick in crime against Asian Americans.”
The most recent outbreak of violent attacks in Northern California comes months after the New York City Commission on Human Rights (“NYCCHR”) was forced to launch a COVID-19 Response Team dedicated to handling an influx of reports of harassment and discrimination related to the pandemic, and specifically directed at Asian American individuals. As of last spring, the NYCCHR stated that 40 percent of all harassment and discrimination cases related to COVID-19 involved anti-Asian harassment or discrimination, marking a striking rise compared to the same time period one year prior.
The NYCCHR revealed that its task force would focus on efforts, such as working with community organizations to track and monitor reports of discrimination, hosting forums in “heavily Asian-American communities” in order to educate these communities of their rights and protections under the law, and launching an online resource page outlining New Yorkers’ rights and protections from COVID-19 related discrimination, among other things. Around the same time, the New York Police Department said that it was planning an initiative of its own due to a rise in COVID-related hate crimes.
Such efforts have not prevented further instances of abuse. NBC New York reported this week that there were “more than 2,500 reports of anti-Asian hate incidents related to COVID-19 between March and September 2020,” and according to the WSJ, based on preliminary data, “New York City had a record year of hate crimes against Asians in 2020, while in Los Angeles and San Jose, such crimes more than doubled [compared to] 2019.”
Not limited to violence on the street, these instances of ill treatment have spilled over into the workplace, according to U.S. Equal Employment Opportunity Commission Chair Janet Dhillon. “There have been reports of mistreatment and harassment” on the job, Dhillon revealed last year, emphasizing that “in the workplace, these actions can result in unlawful discrimination on the basis or national origin or race,” and not only for the individual engaging in such discrimination but his/her employer, as well. And she is right: both federal and state laws protect employees from discrimination based on race or national origin, and employers can be held liable in connection with the actions of their employees, since employers have an affirmative duty to prevent harassment, discrimination or retaliation from occurring in the workplace.
(And just because the pandemic has shifted many jobs from in-house to work-from-home scenarios does not mean that potential risks of hostile environment claims are extinguished. While experts “believe a remote setting increases the risk of a hostile work environment, citing an EEOC task force report observing that decentralized work may make employees feel less accountable,” according to Faegre Drinker attorneys Taylor Haran, Ken McIntosh, and Michael Giudicessi, “others suspect that claims arising in the home workplace could occur less often.” Either way, they note that the increase in remote working “almost certainly will alter how employers investigate and defend them and, more importantly, how in the first instance companies modify policies and train to prevent wrongful conduct irrespective of location.”)
Against that background, Fisher Phillips attorney Seth Kaufman has encouraged employers to “be cognizant of any complaints of harassment, discrimination, or retaliation that involve Asian employees or COVID-19 issues.” Employers “must ensure that these types of complaints are thoroughly investigated” and that “remedial action [is taken] if warranted” in order to avoid potential legal ramifications, Kaufman asserts, noting that in light of the formation – and continued actions – of the NYCCHR’s COVID-19 task force, “it is clear that the NYCCHR will closely scrutinize all steps that employers take to deal with these types of complaints.”
UPDATED (March 22, 2021): The U.S. Equal Employment Opportunity Commission has “unanimously approved a resolution condemning the recent violence, harassment, and acts of bias against Asian Americans and Pacific Islanders in the United States,” the agency announced. The resolution – which states that “advancing equal employment opportunity for people of all races, national origins, and ethnicities is critical to guaranteeing safety and security in the workplace” – reaffirms the “Commission’s commitment to combat all forms of harassment and discrimination against members of AAPI communities, and to ensure equal opportunity, inclusion, and dignity for all in the workplace.”
“The Commission condemns the recent violence and discrimination against AAPI persons in the strongest possible terms,” said EEOC Chair Charlotte A. Burrows in connection with the resolution. “Hatred, xenophobia, and racism violate our nation’s core principles. The Commission stands in solidarity with the victims, their families, and AAPI communities across the nation, and we pledge to work together to address harassment, bias, and discrimination in the workplace.”