By Fei Pang, Esq

Although anti-Asian racism is far from a new development in the United States, it has spiked over the past year due to misinformation about the COVID-19 virus. A recent report from Stop AAPI Hate ( https://stopaapihate.org/stop-aapi-hate-national-report-2/) tracked the number of racist incidents that occurred against the AAPI community between March 19, 2020 and February 28, 2021. The study revealed that there were at least 3,795 hate incidents over that time but acknowledged that the number is "only a fraction" of the total that likely occurred. According to the Stop AAPI Hate report, businesses are the primary site of discrimination (35.4%), followed by public streets (25.3%), and public parks (9.8%). Chinese are the largest ethnic group (42.2%) that report experiencing hate, followed by Koreans (14.8%), Vietnamese (8.5%), and Filipinos (7.9%). 

Another recent study, this one from the IBM Institute for Business Value (IBV), found that the U.S. work environment for Asian American professionals is uncomfortably challenging. In fact, responses from the 1,455 Asian American professionals from 22 industries who were surveyed by IBV (in partnership with Oxford Economics) between August 2020 and January 2021 differed strikingly from those of their white counterparts. Findings include: (1) 80% of Asian American respondents have personally experienced discrimination based on ethnicity or race; (2) more than 60% feel they must work harder than non-Asian counterparts to succeed because of their identity; (3) 74% of White respondents report feeling empowered and supported professionally, compared to just 40% of Asian Americans.

Even though a lot of articles and news reports have focused on violent crimes against Asian American, this short article will focus on a more subtle and non-violent forms of Asian Hate that are happening in the workplace. To that end, it will introduce and examine some key legal actions that companies, Asian Americans and/or Asian Hate victims, can take to thwart racism in the workplace. 

Know Your Rights

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits workplace discrimination based on several protected class characteristics, including race, color, and national origin, among others (42 U.S.C. § 2000e-2). Race discrimination is also prohibited by Section 1981 of the Civil Rights Act of 1866 (Section 1981), which prohibits discrimination in the making and enforcement of employment contracts. Title VII, as one of the principal federal statutes prohibiting employment discrimination, prohibits discrimination based on: (1) Race. (2) Color. (3) National origin. (3) Religion. (4) Sex (including gender, pregnancy, sexual orientation, and gender identity).

In the Title VII context, race refers to an individual’s immutable personal characteristics associated with a certain race, such as: (1) Skin color. (2) Hair texture. (3) Certain facial features. (4) A characteristic that predominantly impacts one race. Color may overlap with race, but it specifically refers to an individual’s: (1) Skin color. (2) Pigmentation. (3) Skin shade. (4) Skin tone. (5) Complexion. National origin also may overlap with race and color, but specifically “refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came” (Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973)).

Title VII generally prohibits race, color, and national origin discrimination in the same way as it prohibits discrimination based on other protected class characteristics. Specifically, Title VII prohibits a broad range of discriminatory employer conduct based on an individual’s race, color, or national origin, including: (1) Refusing to hire an applicant; (2) Terminating an employee, including constructive discharge; (3) Refusing to promote an employee; (4) Demoting an employee; (5) Discriminating regarding an employee’s compensation, terms, conditions, or privileges of employment, such as transfer, access to training, or access to equipment; (6) Classifying or segregating employees in a way that: (a) deprives the employees of employment opportunities; or (b) adversely affects their status as employees; (7) Making statements in job advertisements that indicate a preference or limitation based on race, color, or national origin; (8) Refusing or failing to prevent or eliminate harassment.

Available Legal Remedies Under Title VII

Courts have substantial discretion in creating remedies under Title VII. Depending on the facts of the case and the nature of the allegations (such as disparate impact versus disparate treatment), these remedies may be available: (1) Injunctive relief, such as: (a) specific relief related to the claims in the case, such as selection for a promotion; (b) prohibiting an employer from future acts of discrimination; and (c) requiring a manager to undergo equal employment opportunity training; (2) Back pay; (3) Reinstatement or front pay; and (4) Compensatory and punitive damages, which are available in intentional discrimination cases, but not disparate impact cases. Punitive damages are also only available in cases where the plaintiff proves intentional discrimination with malice or reckless indifference and not available from government, government agency, or political subdivision employers (42 U.S.C. § 1981a(b)(1)).  (5) Attorneys’ fees and costs for the prevailing party (42 U.S.C. § 2000e-5(k); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) and Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975)).

Enforcement Actions Under Title VII

Like other claims under Title VII, Asian Hate victims may enforce their rights by filing a charge with the EEOC or a State Fair Employment Practices Agency (FEPA) and, after exhausting their administrative remedies, filing a lawsuit in court. The EEOC also may file a lawsuit against private sector employers to enforce Title VII on behalf of an individual or individuals, and the US Attorney General may file a lawsuit against a state or local government employer.

Work is a central part of most of our lives, but for members of our diverse Asian American community, sometimes the workplace is not guaranteed to be a fair and safe place. As an Asian Hate victim, if you try to enforce your rights under Title VII, what happens if the employer retaliates against the victim?  Please note, this is also considered in Title VII as it also prohibits retaliation against an applicant or employee because the person: (1) Opposed race, color, or national origin discrimination that is prohibited by Title VII. (2) Filed a charge of race, color, or national origin discrimination under Title VII. (3) Testified, assisted, or otherwise participated in an investigation or proceeding relating to a claim of race, color, or national origin discrimination under Title VII.

Systemic problems such as discrimination against Asian American in the workplace require systemic changes and public awareness. We hereby encourage all Asian Hate victims to bravely speak out and take actions against any discrimination in the workplace around you. Your voices and actions will help change the culture that enables it, and it will eventually create a better workplace for the next generation of Asian Americans.