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Can I be Treated Differently at Work Because of My National Origin or Race?

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Workplace harassment handbook

No. Both federal and state law make it unlawful to treat employees differently because of their national origin and race. Unfortunately, however, it seems that the Coronavirus pandemic has resulted in increased anti-Chinese and anti-Asian sentiment and xenophobia.

Gregg Orton, the National Director of the National Council of Asian Pacific Americans, a coalition of over 35 national Asian American advocacy organizations, said there was “no question” the number of discriminatory incidents and attacks against Asian Americans had increased since the beginning of the Coronavirus outbreak. Janet Dhillon, chair of the Equal Employment Opportunity Commission (EEOC), issued a message cautioning employers to watch out for unlawful discrimination on the basis national origin or race due to the increased reports of mistreatment and harassment of Asian Americans and other people of Asian descent resulting from the COVID-19 pandemic.

The mistreatment that Chinese-Americans and Asian-Americans are experiencing is, alone, unacceptable and appalling. It is made even worse by the fact that the Center for Disease Control (CDC) guidance instructs the opposite:

DO NOT show prejudice to people of Asian descent, because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have 2019-nCoV.

All persons in the U.S.— including those of Asian descent—who have not traveled to China or been in contact with someone with a confirmed or suspected nCoV case in the last 14 days are at low risk of becoming sick.

Know Your Employment Rights

The law forbids discrimination based on national origin and race when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and all other terms or conditions of employment.

Harassment on the basis of national origin and race are also prohibited. Harassment on the basis of national origin may include offensive or derogatory remarks about a person's national origin, accent, or ethnicity. Harassment on the basis of race may include racial slurs, offensive or derogatory remarks about a person's race or color, or the display of racially-offensive symbols. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). In the context of the Coronavirus, unlawful harassment may include certain employees avoiding other employees because their national origin, race or color is perceived as making them more likely to carry or transmit the Coronavirus.

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. Harassment can also occur among people of the same national origin, race or color.

Furthermore, it is unlawful for an employer to use an employment policy or practice that applies to everyone, regardless of national origin, race or color, if it has a negative impact on people of a certain national origin, race or color and is not job-related or necessary to the operation of the business. For example, an employer can only require an employee to speak fluent English if it is necessary to effectively perform the job. A rule requiring employees to speak only English on the job is allowed only if it is necessary to ensure safe or efficient operation and is implemented for nondiscriminatory reasons. Moreover, an employer may not base an employment decision on an employee's foreign accent unless it seriously interferes with performance. Lastly, a "no-beard" employment policy that applies to all workers without regard to race may still be unlawful if it is not job-related and has a negative impact on the employment of African-American men (who have a predisposition to a skin condition that causes severe shaving bumps).

If you believe that you have been discriminated against or treated differently in the workplace due to your national origin, race or skin color, you should consult with an experienced employment attorney.

Please call us at (603) 288-1403 to see if we can help or fill out our online contact form for a free consultation.