On March 16, 2021, a gunman in Atlanta shot and killed 6 Asian-American women. The shooter’s motive is still under investigation, but Asian-American hate in the wake of COVID-19 was nevertheless thrust to the forefront of the public consciousness.
Historical Review
As many Asian-American and Pacific Islanders (“AAPIs”) already know, bias was a fact of life long before COVID-19. Over the years, surveys have confirmed that, amongst ethnic groups, AAPIs rank at or near the highest rate of perceived race discrimination at work.
According to a 2005 Gallup survey, for instance, 30% of AAPIs said they perceived discrimination on-the-job. In response to a 2008 EEOC survey of federal employees, 31% of AAPIs reported incidents of discrimination at work; by way of comparison, only 26% of African-Americans reported such incidents.
According to a 2015 survey by Jason Chen, 62% of Asian men believe there are race-related obstacles blocking their career advancement. In response to a 2017 Harvard University survey, a quarter or more of AAPIs report being personally discriminated against when it comes to applying for jobs (27%), or being paid equally or considered for promotion (25%).
Legal avenues exist for AAPI employees to redress bias at work, including the filing of charges with federal, state and local agencies. Nevertheless, AAPIs have historically refrained from pursuing these avenues. The 2008 EEOC survey found only 2% of all discrimination charges in the private sector and 3.26 % in the federal sector were filed by AAPIs. The 2005 Gallup Survey found only 3% of race discrimination charges were filed by AAPIs; by way of comparison, 82% of race discrimination charges were filed by African-Americans.
Scholars attribute this reluctance to pursue legal avenues to Asian culture. See Andrew Tae-Hyun Kim, Culture Matters: Cultural Differences in Reporting of Employment Discrimination Claims, 20 Wm. & Mary Bill Rts. J 405 (2011). Mr. Kim posited the reluctance is “[d]ue to Asian Americans’ collectivist orientation—cultivated for thousands of years under the Confucian norm—that emphasizes conciliation rather than litigation and interdependence rather than individuation.”
Impact of COVID-19
In the wake of the COVID-19 pandemic, AAPIs have become unfortunate targets of misinformation as to the virus. The Center for Disease Control website maintains that “[n]o single person or group of people are more likely than others to spread COVID 19.” Still, many unfairly blame AAPIs for the spread of the virus. This blame has only been fueled by references to COVID-19 as the “China Virus” and the “Kung Flu.”
The cost to AAPIs of this misdirected and irrational blame has been considerable. According to a Report by the Center for the Study of Hate and Extremism at California State University, San Bernardino, the number of reported hate crimes against Asian Americans jumped by nearly 150% in 2020 over the previous year.
According to a March 18, 2021 survey by the Pew Research Center, a staggering 82% of AAPIs now say that they face some discrimination. 42% of AAPIs now say that they face a lot of discrimination.
Some statistics, moreover, show AAPIs may be shedding their historic reluctance to legal action. A report by the Stop AAPI Hate Reporting Center indicates that, as of February 28, 2021, it has received 3,795 complaints of hate incidents. Of that total, 68.1% of the incidents were classified as verbal harassment, while 20.5% were cases of “shunning” of AAPIs, and 11.1% were cases of alleged physical assault. Businesses are the primary site of discrimination (35.4%).
While bias against AAPIs has been ongoing for years, it has thus never been more (1) egregious, (2) prominent, and (3) public than at any time since World War II. Even more alarming, with the Atlanta shooting, it appears the incidents of hate against AAPIs may be on the upswing.
What Employers Should Be Doing Now
Most employers have policies, procedures and training designed to combat violence, harassment and discrimination in the workplace. For the reasons set forth above, however, the threats and bias now experienced by AAPIs are unique. Especially as employees return from remote work environments, employers cannot simply assume their existing policies, procedures and training are sufficient to protect AAPI employees.
Amongst the actions which employers with AAPI employees should be considering now are the following:
- Issuing a statement by the President or CEO condemning AAPI hate.
- Identifying and assessing implied threats of violence against AAPI employees.
- Undertaking threat assessments for AAPI employees who regularly work in the field.
- Undertaking threat assessments for AAPI employees who interact with customers, vendors and other third parties.
- Educating employees that treating AAPI co-workers with respect is a condition of continued employment.
- Prohibiting any reference to COVID-19 as the “China Virus”, the “Kung Flu”, or any other derogatory term.
- Warning employees that social media posts which target AAPIs will be grounds for immediate termination.
- Educating employees that AAPIs are not at a greater risk of spreading COVID-19 than other Americans.
- Informing AAPI employees they are expected to report any hateful behavior or threats of such behavior immediately to the employer.
By acting immediately as to these issues, an employer may not only protect the well-being of an individual, but also avoid the risk of legal action alleging indifference or inaction.
Robert G. Chadwick, Jr. frequently speaks to employers and non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com.
DEFENDING MANAGEMENT 