“I’m just trying to do my job!”
A shopper in the supermarket parking lot turned when she heard the man raising his voice at another shopper who was getting into her car several feet away. The shopper turned in time to see the man in his store clerk’s uniform with a bandana over his nose and mouth catch a shopping cart the other woman pushed at him. Everyone in the store had seemed on edge. Many of the employees wore makeshift face coverings like the man in the parking lot but it was impossible to maintain the required social distance inside the store’s aisles.
When the shopper who watched this incident returned to the store two weeks later, she saw that all the store employees were wearing masks and gloves. She was surprised to see the positive mood among the employees many of whom nodded to her with smiling eyes as she shopped with her own nose and mouth covered by a scarf. She didn’t have to be an employment lawyer to conclude that, based on just the small changes she could see, their employer’s steps to improve working conditions had a positive effect on the workers in the store.
As businesses plan a return to the workplace, employers must prepare to approach the concerns and requests that their employees will raise. Workplace safety is obviously a fundamental issue. Requests for accommodation are another set of issues employers need to address. An employer that responds in a timely and empathetic way will lessen the risk of liability and the added expense of potentially protracted litigation.
African Americans, Hispanics and some other non-white populations are disproportionately affected by the pandemic. Regardless of the race of the employee, an employer needs to respond effectively if a worker with diabetes, for example, requests an accommodation because of his or her increased risk of severe impact from exposure to COVID-19. Equal treatment is the rule, but an employee could feel supported by an extra awareness or sympathy toward the fact that he or she may be a member of a group that has been disproportionately impacted by COVID-19. That employee is more likely to know someone in his or her network of friends and family who was sickened or killed by the virus.
An employer would never respond to a request for leave or accommodation by saying: Yes, I understand you must be worried because of the disproportionate impact of this virus on your community. Nothing needs to be said but the empathy that comes from awareness is likely to yield a benefit.
Planning, preparation, and empathetic execution will serve employers well as we all move toward reopening our workplaces
A prudent employer should also be aware of the potential for a new strain of vicious workplace harassment that might arise because of prejudice and misunderstanding of the virus. COVID-19 has increased scrutiny of individuals of Asian descent. Even the EEOC has included a question and answer about pandemic-related harassment against employees who are perceived to be Asian. Anti-Asian bias, ethnic slurs and even racist attacks have arisen in communities. Shouts of “go back where you came from” or “you brought this virus here” have increased Asian American anxiety. Asian Americans report avoiding eye contact with non-Asian people in public spaces. Recently, a 19-year-old stabbed three members of an Asian family in Midland, Texas because the perpetrator thought the family was “Chinese and infecting people with the coronavirus.” The recent lawsuits in the States of Missouri and Mississippi filed against China continue to fuel the rising sentiment against Asian Americans.
Asian Americans will return to work against this backdrop. Even with the use of social distancing in the workplace, imagine an employee who refuses to work near another employee of Asian descent because of fears of contracting COVID-19. Imagine an employee of Asian descent reporting to human resources that she found “Go back to China!” scrawled across her workstation. How does an employer prevent this from happening or manage it if it does?
A prudent employer is encouraged to remind and retrain its employees about its robust anti-harassment and anti-bullying policies and reporting requirements if an employee experiences or witnesses harassment. When an employer investigates a harassment complaint or report, the employer should always reinforce its anti-retaliation policy in writing to all involved, including the complainant and any witnesses. After the employer provides any retraining, the employer should obtain written employee acknowledgments to affirm that the employee understands the employer’s anti-harassment and anti-bullying policy and to allow the employee to report any instances of discrimination or harassment or affirm that the employee has nothing to report.
Moreover, so-called “model minority” and “quiet Asian” stereotypes may lead employees to assume that Asian American co-employees do not find terms like the “Chinese virus” or “Kung Flu virus” offensive. Prudent employers are encouraged to remind employees to avoid using such rhetoric as they invoke implicit bias and racism and may form the basis of a future claim.
Planning, preparation, and empathetic execution will serve employers well as we all move toward reopening our workplaces. Such an approach will yield benefits for employee morale and more effective business operations. It will also inevitably mitigate risk for employers and employees alike.