Work in the Time of COVID-19: FAQs for Employers

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On March 22, 2021, the U.S. Equal Employment Opportunity Commission issued a Resolution condemning violence and discrimination against Asian Americans and Pacific Islanders.  This resolution comes approximately one year after a similar statement from the EEOC which cited reports of mistreatment and harassment of Asian Americans in the early weeks of the Covid-19 pandemic.  Indeed, even before the pandemic, the EEOC announced in its 2017-2021 Strategic Enforcement Plan that it had identified discrimination against individuals of South Asian descent as a “developing and emerging” issue.  These pronouncements strongly indicate the EEOC’s intent to aggressively enforce Title VII of the Civil Rights Act of 1964 (“Title VII”) regarding claims of discrimination against Asian American and Pacific Islanders in the workplace.

Title VII prohibits discrimination and harassment against individuals on the basis of national origin and race, among other characteristics.  The EEOC takes the position (and courts have held) that Title VII’s protections extend to Asian Americans, Pacific Islanders, and individuals of Asian descent (AAPI).  Title VII also prohibits retaliation against an employee or applicant who complains about such discrimination, files an EEOC charge of discrimination, or participates in an investigation or lawsuit regarding such discrimination.  Moreover, employers can be held strictly liable when supervisors engage in harassment or intimidation of employees because of national origin or race.

In its Resolution condemning “recent violence, harassment, and discrimination against Asian Americans and Pacific Islanders in the United States,” the EEOC states that “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.”  The Resolution links this general policy statement with the Commission’s authority to enforce the protections set forth in Title VII and to “remedy barriers to equal employment opportunity based on race, color, and national origin, including those that impact Asian American and Pacific Islander communities.”

Given the EEOC’s public statements on this subject, it is reasonable to conclude that the EEOC will give heightened attention to charges alleging discrimination or harassment against Asian Americans and Pacific Islanders.  Employers should review their equal employment opportunity and anti-harassment policies to ensure that they reflect zero-tolerance for discrimination based on national origin and race.  Supervisors should also be trained to recognize possible forms of AAPI discrimination and harassment.  All employees should be trained on internal procedures for reporting incidents of discrimination, and employers should take steps to prohibit retaliation against anyone who makes such reports.

As always, employers should consult with their legal counsel whenever they receive internal complaints of discrimination.  Prompt and thorough investigations of such complaints, along with appropriate corrective action to respond to any violation of the employer’s policies, can provide important defenses to a subsequent EEOC charge or lawsuit arising out of those complaints.

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