Combatting COVID-19 Anti-Asian Violence in the Workplace

July 27, 2021 | Insights

On May 20, 2021, the United States government enacted the COVID-19 Hate Crimes Act, which created a “designated coordinator at the Department of Justice (DOJ) to expedite the review of reported hate crimes and hate incidents for the duration of the COVID-19 crisis” arising from anti-Asian xenophobia. The COVID-19 Task Force “develop[s] and disseminat[es] new resources and training . . . on how to identify pandemic-related hate or bias-motivated incidents.” Prior to its enactment, Congress found that there were “nearly 3,800 reported cases of anti-Asian discrimination and incidents related to COVID-19 between March 19, 2020, and February 28, 2021, in all 50 states and the District of Columbia.”^[1]

The COVID-19 pandemic has resulted in “widespread fear, misinformation and conspiracy theories . . . leading to numerous instances of anti-Asian hate incidents around the nation.” The federal government has prioritized combatting anti-Asian discrimination, harassment, and bias as a result of the COVID-19 pandemic. The Center for the Study of Hate and Extremism at Cal State University San Bernardino reported that anti-Asian hate crimes increased 164% in the last year alone. Given the rise of violence and harassment against the Asian American and Pacific Islander (AAPI)^[2] community across the nation, employers should take additional measures to ensure compliance with federal laws prohibiting workplace violence, discrimination and harassment targeting AAPI employees, as well as creating an inclusive workplace and preventing legal liability.

Federal Guidelines

The federal government condemned racism, xenophobia, and intolerance against the AAPI community in early 2021. Recognizing that “an estimated 2 million Asian Americans and Pacific Islanders have served on the front lines of this crisis as healthcare providers, as first responders, and in other essential roles,” the government outlined steps it will take to encourage employers to create an inclusive environment. Specifically, the government urged executive, state, and local agencies to take appropriate steps to combat these issues in the workplace. Attorney General Merrick B. Garland stated that the “Department of Justice is proud to play a central role in implementing this legislation . . . [by] investigating and prosecuting hate crimes [as] a top priority.” Additionally, the White House launched its Initiative on Asian Americans and Pacific Islanders (WHIAAPI) to carry out the administration’s commitment to serving the AAPI community. WHIAAPI aims to “promot[e] workplaces that are free from harassment against [AAPI] workers.” As such, there will likely be a trickledown effect based on these laws and regulations to ensure a safe work environment for AAPI employees.

Legal Risks

Employers must be cognizant of the potential liability that may arise from discrimination against AAPI employees in the workplace. Stop AAPI Hate reported that of the reported anti-Asian incidents, 35.4% occurred at a place of business. Title VII of the Civil Rights Act provides that an employer may not discriminate against an employee “because of his race, color, religion, sex, or national origin.” In March 2021, the Equal Employment Opportunity Commission (EEOC) identified an increase of workplace civil rights implications due to the COVID-19 pandemic, and committed to further “combat racism, xenophobia, harassment and all other forms of discrimination against AAPI persons and communities.” Because of this new focus, the EEOC will likely prioritize cases against employers alleging discrimination against AAPI employees.

The Occupational Safety and Health Act (“the Act”) provides that an employer “has a duty to provide a safe working environment.” The Act further delineates this duty into two clauses: (1) a general duty to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees; and (2) a duty for an employer to comply with occupational safety and health standards. In an effort to provide resources to AAPI employers, WHIAAPI, along with the Department of Labor and Occupational Safety and Health Administration (OSHA), launched the Future of Business—a virtual event series outlining the federal government’s enforcement of regulations in the workplace. One focus of OSHA during the pandemic has been providing outreach activities to employers across the country to ensure compliance with federal laws in light of the increased vulnerability of AAPI employees. It is anticipated that OSHA will prioritize this area of concern when assessing targeted inspections and worker complaints.

Aiming to Prevent AAPI Violence in the Workforce

Because of the legal implications surrounding AAPI-targeted violence, discrimination, or harassment, employers should implement policies and procedures that decrease the likelihood of such occurrences in the workplace.

Acknowledge: AAPI employees continue to face unique challenges as a result of the COVID-19 pandemic. In Texas, it is reported that the AAPI community experienced shunning, verbal harassment, vandalism, and in the worst cases, physical violence. Employers should provide an open forum to discuss these issues within the workplace, both within employee resource groups and company or business wide forums. For example, a group of business leaders launched a $250 million campaign through The Asian American Foundation (TAAF) to provide anti-hate programs, education, and data and research.

Condemn: Employers should consider providing bystander training for employees to better address discrimination if it arises in the workplace. Bystander training equips employees with the tools to better intervene in situations where an AAPI employee may be subject to discrimination and harassment. In addressing such behavior, employers have the opportunity to foster an inclusive environment in their workplace.

Support: Employers should offer resources aimed to support AAPI employees, such as employee resource groups. Additionally, employers may consider supporting local organizations that target AAPI-related causes.

Jackson Walker provides D&I Counseling to support our clients with services and training tailored specifically with your organization’s goals, culture, and needs in mind. For questions, please contact Jamila Brinson at jbrinson@jw.com.

^[1] Pub. L. No. 117-13; see Stop AAPI Hate, 2020-2021 National Report.
^[2] The U.S. Census Bureau describes the AAPI community as any persons having origins in any of the original peoples of Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, Vietnam, Hawaii, Guam, Samoa, or other Pacific Islands.

* Caroline Capili, a 2021 Summer Associate from Notre Dame Law School, contributed to this article.

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Founded in 1887, Jackson Walker has played a vital role in the growth and development of Texas business. With more than 400 attorneys across seven Texas-based offices, the Firm represents Fortune 500 companies, multinational corporations, major financial institutions, insurance companies, and a wide range of public companies and private businesses around the globe. In 2021, Jackson Walker’s Labor & Employment attorneys established a Diversity & Inclusion Counseling subpractice focused on helping businesses achieve their D&I goals and objectives while adhering to workplace laws and regulations. Our goal at Jackson Walker is to see our clients succeed. With a robust D&I strategy and plan, companies can demonstrate to their employees and the general public their commitment to D&I, and better attract and retain talent with a diverse set of skills and expertise to the benefit of its business.

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Jamila M. Brinson
Partner, Houston

Caroline Capili
Associate, Houston