Coronavirus related anxiety is palpable. The worldwide growth of those infected and those that have died from the virus has been exponential. With travel bans and World Health Organization alarms ringing, it is natural that fears related to the virus and its symptoms abound.  But when those fears become outright cases of xenophobia, it is a real problem. If your workplace no longer feels safe because of prejudice and unfounded fears directed toward people of Asian descent, it is an issue that may require the assistance of a local employment attorney. 

Common Maybe, but Not Normal

The University of California Berkeley Health Services made a serious mistake when they sent out an Instagram post to students telling them that bias and bigotry are normal and common when facing the coronavirus. The university surely realized as much, leading to their quick deletion of the post. The fact is, while it may be true that many Americans experience bias and bigotry, it is not normal, and is certainly not acceptable. The unfortunate truth is, Western culture sometimes reverts to unreasonable xenophobia when faced with such issues, and it is not a pretty sight. 

A Comparison of Health Issues

The flu season this year in the United States has resulted in 19 million ill individuals, 180,000 people being hospitalized, and 10,000 fatalities. Yes, the coronavirus has deadly potential and it is important to have some perspective when considering the potential issues related to coronavirus.

Workplace Issues

What is an employer to do?  There certainly is a real issue confronting us; an epidemic apparently originating in Wuhan, China, is wreaking havoc worldwide. Actions have been taken to shut down non essential businesses, limit travel and shelter in place. Confirmed coronavirus cases continue to mount here in America. Employers of essential businesses have a responsibility to keep the workplace safe even in the face of a frightening epidemic. Common sense practices like regular hand-washing are appropriate. Here is what is not:

• Just because an employee is of Asian descent, it does not mean they are carriers of the coronavirus. If your employee has not been to China in recent weeks, there is no need to treat them any differently than any other employee. Ostracizing such employees by word or deed is both improper and illegal. That is true for all employees, regardless of nationality.
• Allowing employee gossip to flourish can be extremely damaging to employee morale and performance. If an employer is aware of unfounded rumors related to Asian-American employees and coronavirus, those rumors must be dealt with promptly. Failure to do so could result in legal action.

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California’s Fair Employment and Housing Act (FEHA) lays out the duty of employers toward their employees, as well as prohibited actions in the workplace. These policies address discrimination against individuals with disabilities, as well as other protected groups, including:

• Age;
• Military status;
• Race;
• Religion;
• National origin or ancestry;
• Marital status;
• Physical or mental disability;
• Gender, sexual expression, or sexual orientation.

Anti-discrimination rules have been on the books for years. Revisions to these policies in recent times are worth noting:

Sex Discrimination and the California Fair Employment and Housing Act

The law protects individuals from any form of discrimination on the basis of sex. This applies to both males and females and expressly covers gender identity and expression and transgender identification.

Fair Employment and Housing Act on Volunteers, Interns, and Other Unpaid Individuals

California’s Fair Employment and Housing Act protects unpaid persons from discrimination, just as paid workers are. In fact, for the purposes of a harassment claim, they are considered employees.

Discrimination on the Basis of Religion

Religion may not be a factor in hiring and firing decisions. Reasonable accommodations must be made to address a worker’s religious tenets. An employer may not isolate a worker from fellow employees or from customers due to religious beliefs or attire, unless it is something that is requested by the employee.

Pregnancy

Employees are entitled to as much as four months of unpaid leave in association with a pregnancy. It is not necessary to for the time to be taken in one continuous break. Furthermore, discrimination on the basis of pregnancy, breastfeeding, or other conditions associated with childbirth is not permitted.

Discrimination on the Basis of National Origin

The California Fair Employment and Housing Act does not permit employers to require employees to demonstrate that they have a driver’s license except under particular circumstances:

• State or federal law requires it for the position;
• It is a mandatory item for the type of work required;
• There is a legitimate business reason for the requirement, and all employees are held to the same standard.

Training for Anti-Bullying

Employers who employ 50 or more workers are required to provide training that encompasses key topics:

• Definitions of “abusive conduct;”
• Impacts of such conduct on both victims and employers;
• Steps the company will take to rectify harassing behaviors, such as the policy for investigating complaints and responsive actions;
• Obligations of supervisors to document claims of discrimination, harassment, and/or retaliation.

Employers must document attendance at these trainings with sign-in sheets and must keep training materials on hand.

Support Animals in the Workplace

Support dogs or other animals that are required to assist with vision issues, cognitive problems, or emotional support must be accommodated in the workplace. [Read more…]