Elisabeth Baker-Pham
On Thursday, March 18, 2021, following the horrific rampage in Atlanta, the House Committee on the Judiciary held a hearing on discrimination and violence against Asian Americans. Despite greater attention to the recent incidents, discrimination and violence against Asian Americans is not new. And, while the increase in physical violence is finally getting the attention it deserves, Asian Americans have also been facing a significant increase in non-physical harassment and discrimination, including in the workplace.
The pandemic seems to be behind the rise of discrimination against Asian Americans in the last year. According to a poll taken in July 2020, 40% of surveyed adults in the US said it had become “more common for people to express racist views toward Asians since the pandemic began.” A recent report notes that verbal harassment made up 68.1% of discrimination reported to the organization between March 2020 and February 2021. And, as early as March 2020—at the very start of the crisis caused by the COVID-19 pandemic—the EEOC fielded questions about whether it was permissible to engage in or tolerate discrimination against Asian Americans in the workplace if it stemmed from fear of COVID-19. (Spoiler alert: the answer is, unequivocally, no.)
On March 19, 2021, the EEOC approved a resolution condemning recent violence, harassment, and acts of bias against Asian Americans and Pacific Islanders (“AAPI”). Employees cannot be forced to tolerate discrimination in the workplace, and it is incumbent on everyone, including bystanders, to speak up. Here’s what you can do.
Recognize Discrimination
Race and/or national origin discrimination can come in many forms and includes:
- Comments or jokes (including memes) about language and/or accents, actual or assumed customs, and appearance;
- Exclusion from activities, assignments, and projects; and
- Applying different rules or standards related to virus testing or vaccination requirements, return to work policies, and other workplace precautions.
Notably, employees are protected against conduct from managers, colleagues, subordinates, and even third parties over whom the employer has some control, such as vendors and customers. In order for discrimination to rise to the level of illegal discrimination, it must either be an adverse action—such as a suspension, termination, or other significant single event—or it must be so “severe” or “pervasive” to alter the terms of employment.
Even if conduct is not illegal, however, a single incident of taunting or an inappropriate joke should not be tolerated and may be in violation of an employer conduct policy. In other words, even if an employer is not legally obligated to stop the conduct, an employer should still take reasonably effective action to have the perpetrator cease their conduct.
In short, no one should be treated differently because of their race or national origin. Period.
Speak Up Immediately
- If possible, oppose the discrimination openly as it is happening.
- Immediately report the conduct (preferably in writing) to a supervisor, manager, Human Resources, or any other person designated by your employer to receive complaints—even if you were not the subject of discrimination. In fact, bystander reporting is incredibly important because the subject of the discrimination may not feel comfortable reporting the incident for fear of backlash.
- If you report discrimination as a bystander, let the co-worker know that you witnessed the event and reported it (or plan to report it) and encourage the co-worker to report the conduct as well.
Consider All of Your Options
- If you believe you have been subjected to illegal harassment, and you want to file a complaint, consult with legal counsel. An attorney can help you decide if, when, and where you should file a complaint.
- If you are a member of a bargaining unit, you should consider contacting your union representative for assistance, though in some circumstances a union grievance may preclude you from filing a discrimination complaint.
- Be mindful of any deadlines for filing a complaint. Deadlines vary and, for federal employees, the deadline is a mere 45 days. Contacting an attorney or your union does not extend any filing deadline.
Report Retaliation
Complaining about (or otherwise opposing) discrimination and participating in the complaint process (either as the complaining employee or a witness) are legally protected. Taking an action because you engaged in protected activity is unlawful if it would reasonably deter a person from engaging in protected activity in the future. Retaliation should be reported in the same ways as described above and may be the basis of a legal complaint.
In sum, discrimination in the workplace should never be tolerated. Speak up if you are the victim of or observe any kind of discrimination. If you believe you have been subjected to unlawful discrimination or retaliation, please contact the employment lawyers of Kalijarvi, Chuzi, Newman & Fitch.
For additional information, read Elisabeth Baker-Pham’s Washington Business Journal article, “Viewpoint: It’s time to stand up to Asian hate in the workplace” published on April 16, 2021 (subscription required).