Flatten the Curve on Virus-related Workplace Harassment

By Dan Gephart, April 15, 2020

As the grim realities of the COVID-19 pandemic began to spread across the country in mid-March, so did discrimination, harassment, and the unfair treatment of some Americans. Spurred on by references to coronavirus as the “Chinese Flu” and, even more disgustingly, “Kung Flu,” the unfair treatment took many forms with one commonality – those on the receiving end were thought to be Chinese.

The California-based Asian Pacific Policy & Planning Council received nearly 1,200 reports of harassment during a two-week period in mid-March. Most were reports of verbal harassment. In one case, a young woman was screamed at and spat upon on as she walked down a San Francisco street. It’s not limited to California. Across the country, numerous Asian Americans and Pacific Islanders have experienced everything from microaggressions and racial profiling to violence.

The biased treatment has taken on economic forms as well. While Americans bemoaned the lack of toilet paper, rolls upon rolls of the desired bathroom tissue sat on shelves in Korean and Chinese groceries across the country. Chinese restaurants saw a significant drop in customers even before restrictions on restaurants were put in place.

Recent reports optimistically suggest that social distancing efforts may be flattening the curve of the virus. But they do not suggest a flattening of this ignorance that leads to discriminatory actions. Bias may appear to be dormant now as the majority of employees work from home. However, you need to be aware that it could erupt anew when employees return to the physical workplace.

Employees are protected from harassment and disparate treatment based on national origin. National origin is a protected category and it’s broadly defined. The law protects employees against discrimination based on an individual’s place of origin, as well the origin of an individual’s ancestors. It protects individuals who have the physical, cultural, or linguistic characteristics of a national origin group. The law protects those who are married to a person of a national origin group, have a name closely associated with a national origin group, or belong to an association that promotes the interest of a national origin group. In its 2016 guidance, the EEOC noted that a lot of national origin discrimination tends to be intersectional, which means the individual is discriminated against based on national origin and another protected basis, such as race or religion.

Another important point: Employees are also protected from discrimination based on perceived national origin, which seems to be the case with much of the virus-related harassment.

If employees create a hostile work environment for a coworker because of his/her/their national origin based on some uneducated reasoning attached to COVID-19, it’s your responsibility to promptly investigate and correct those actions. You shouldn’t take action just to meet your legal obligations. Taking action inspires the trust of your employees and generates their confidence that you will take all allegations seriously.

To show that you’re serious, take corrective action that:

• • Is designed to stop the harassment.
  • Includes disciplinary measures that are proportional to the seriousness of the offense.
  • Doesn’t adversely affect the victim of harassment.
  • Addresses harm, such as reinstatement, expungement of disciplinary records, restoration of leave and other appropriate remedies, including an apology from the harasser.

You’ll learn more when you attend Preventing and Correcting Discrimination: A Focus on Race, Color, and National Origin on Thursday, April 23.  The presentation by FELTG Instructor Ricky Rowe, the former National EEO Manager for the Department of Veterans Affairs, is one of nine live instructor-led events taking place during the FELTG Virtual Training Institute’s three-day Emerging Issues in Federal Employment Law event, April 21-23.

While the country has always rallied to meet its great challenges, our sad historical tendency has also been to find a target to blame. This has led to numerous horrors, such as Japanese internment camps or the lingering discrimination against American Muslims. Don’t let it happen in your workplace. Gephart@FELTG.com