Asian American Essential Workers Face COVID-19 Racial Discrimination

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In New York and across America, Asian American workers are facing racial discrimination because of fear related to the novel Coronavirus COVID-19. As the response to the pandemic goes on, employers will need to step up their responses to xenophobia to protect their employees from harassment and discrimination at work.

Asian Americans Face Epidemic of Racial Discrimination Due to COVID-19 Responses

Dr. Edward Chew is the head of a large Manhattan hospital’s emergency department. Understandably, he has been busy fighting the coronavirus. However, as he works hard daily to help people survive the outbreak, he has been noticing their reactions to him have changed. They try to cover their nose and mouth with their shirts as he gets close. One time, when he went to Home Depot to buy masks, face shields, and Tyvek suits for his hospital staff, he was harassed by three men in their 20s who followed him into the parking lot. He is not alone.

Across the country, Asian American workers, citizens, and permanent residents have faced harassment and even physical assaults because of their national origin. A writer for the New Yorker was cursed out while taking out her trash. A 16-year-old student was bullied and attacked by schoolmates. Another New Yorker was kicked and punched at a subway station.

Dr. Russell Jeung, Ph.D., of San Francisco State University reports that between February 9 and March 7, 2020, 471 cases of racial discrimination made their way into the America’s News database. He called these figures “just the tip of the iceberg” because only the most serious cases would be reported by the media. Dr. Jeung helped set up a website in six Asian languages to gather first-hand accounts. It had 150 reports of harassment in just a week. Benny Lou, founder of NextShark, an Asian-American news website told the New York Times:

“We’ve never received this many news tips about racism against Asians. . . . It’s crazy. My staff is pulling double duty just to keep up.”

Calling the Coronavirus the “Chinese Virus” Creates Xenophobia and Puts Asian Americans at Risk

This intense racial discrimination is likely the result of early descriptions of COVID-19 as the “Chinese Virus”. Most notably, President Donald Trump repeatedly referred to the disease as “the China virus” or “the Chinese virus” until approximately March 24, 2020. He justified doing so to combat conspiracy theories saying the US military had brought the virus to China. While President Trump has since announced he was pulling back from associating the coronavirus with China, he also denied that his words were racist:

“It’s not racist at all, no, not at all. It comes from China, that’s why. I want to be accurate.”

However, the World Health Organization (WHO) has recommended against naming conventions that convey blame for years. In 2015, the WHO issued best practices for naming new human infectious diseases that warned against “unintended negative impacts by stigmatizing certain communities or economic sectors.” Dr. Keiji Fukuda, Assistant Director-General for Health Security said:

“This may seem like a trivial issue to some, but disease names really do matter to the people who are directly affected. We’ve seen certain disease names provoke a backlash against members of particular religious or ethnic communities, create unjustified barriers to travel, commerce and trade, and trigger needless slaughtering of food animals. This can have serious consequences for peoples’ lives and livelihoods.”

Dr. Chew and the over 2 million Asian Americans working in healthcare, transportation, service industries, and other essential workers are feeling that backlash now.

Employers Must Cut Short Racial Discrimination Due to COVID-19

The Asian Pacific American Labor Alliance, AFL-CIO, is turning to employers to cut these xenophobic reactions short. Teresa Ellis, a national executive board member for the organization, compared the racial discrimination Asian Americans are facing today to the accounts of discrimination and xenophobia targetting Muslim, Arab, and Middle Eastern Americans in the wake of the September 11, 2001 terrorist attacks. Lori Ecker, a member of the American Bar Association Section of Labor and Employment Law Council told the ABA Journal:

“I think what is going on now closely parallels that. . . . In our figuring out how we are going to emerge from this crisis, employers need to be sensitive to the issues that their Asian American employees are facing or could face and take some proactive steps to prevent that from happening like it did 19 years ago.”

To help cut short the COVID-19 racial discrimination against Asian Americans, the APALA has issued guidance, recommending that employers:

  • Let employees and customers know that people of Asian descent are not more likely to get or spread COVID-19
  • Be prepared to respond to clients and patients refusing service by Asian American employees in a way that does not cut their hours or discriminate against them in their work
  • Perform employee trainings that reaffirm the dignity of Asian American workers
  • Provide bystander intervention trainings that teach employees what to do when they witness racial discrimination
  • Take firm stances against outbreak-related jokes or harassment based on race or national origin
  • Post signs supporting Asian American workers in the workplace or business

Help for the Victims of COVID-19 Racial Discrimination

For those whose employers don’t take APALA’s advice, the Equal Employment Opportunity Commission and private employment lawyers can help. The EEOC has promised it is “rising to the challenges before us” to advance equal employment in the workplace and enforce anti-discrimination laws. At Eisenberg & Baum, LLP, our workplace discrimination attorneys are ready to hold them to that promise. If you have been the victim of COVID-19 based racial discrimination at work, we can help you negotiate with your employer to make changes in your workplace, or prepare and file an EEOC complaint on your behalf. Contact us to schedule a consultation over the phone and get our New York based employment attorneys working for you.

Firm’s Statement Regarding Inequality

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Our firm is committed to standing up for racial justice. We see racism all around us and recent events show us that we, as a nation have so much work to do to reach a place where everyone is treated equally regardless of the color of their skin. Racism and racial discrimination are very real issues that our firm deals with every day on behalf of our clients. We will continue to represent, fight, and advocate for individuals who are discriminated against or harassed based upon their race or ethnicity or any other protected class. We will also continue to listen to our clients, friends and neighbors of color to understand their experience so that we can support the black community even more effectively moving forward. To commemorate our commitment and to stand in solidarity with the fight against racism, our firm will observe Juneteenth as a firm holiday and close on June 19. Our firm is planning ways to further support the fight against racism in our community.

Sex Abuse Victims’ Testimonies Lead to Harvey Weinstein’s Guilty Verdict

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On February 24, 2020, former Hollywood producer Harvey Weinstein was found guilty of two felony sex crimes by a New York State Supreme Court jury. This guilty verdict is a milestone in the #MeToo movement, and comes thanks to the hard work and testimony by his sex abuse victims. (Trigger Warning: This blog post contains descriptions of sexual assault.)

Sex Assault Case Puts #MeToo Movement on Trial

In 2017, several actresses came together to talk to reporters. They told stories about how, as aspiring actors, they had been taken advantage of by one man, Harvey Weinstein. They said the big-name Hollywood producer had used his power and privilege to convince, coerce, and sometimes force these young hopefuls into sexual encounters they didn’t want.

After more than 2 years, and dozens more women coming forward to add their stories, the #MeToo movement finally resulted in the New York state prosecutors filing criminal charges against Weinstein. But they weren’t as inclusive as many had hoped. Despite police interviewing more than 70 witnesses and investigating at least 14 sexual assault allegations, the case ultimately came down to two sex abuse victims’ sexual abuse claims, and one charge of predatory sexual assault representing Weinstein’s pattern of sexually offensive behavior. In the words of activist Tarana Burke:

“Most of us will never see the inside of the courtroom, but these women got to take the stand, look him in the eye and say, ‘You did this to me.’”

The small scope of the trial is the result of the decades of time and thousands of miles separating the #MeToo survivors and their claims. Most of the actresses who came forward spoke of incidents that happened outside of New York’s jurisdiction. Many others’ allegations were simply too old to meet the New York criminal statute of limitations. To some, that meant the #MeToo movement hung on the ability of a handful of sex assault survivors to tell their story.

Sex Abuse Victims Testify to Decades of Rape and Sexual Misconduct

The first sex abuse victim to take the stand was Annabella Sciorra, of “The Sopranos”. She was one of those survivors whose stories predated the statute of limitations, but prosecutors asked her to testify to show Weinstein’s pattern of sexual assault and abuse. She described how her relationship with Harvey Weinstein evolved since the early 1990s when she was an up-and-coming actress and he was a young producer. She said he would sometimes make “inappropriate” gestures, like giving her a box of chocolate penises. Then, in late 1993 or early 1994, Weinstein forced himself into her Manhattan apartment and raped her. When she confronted him weeks later, she testified he threatened her, saying, “This remains between you and I.” She never contacted the police, believing what had happened didn’t qualify as rape. But the attack left emotional scars, causing her to drink heavily and cut herself. She reported that Weinstein continued to stalk her for several years after that. In 1997, she testified that he showed up at her hotel room in his underwear, carrying baby oil and a videotape.

The jury also heard from sex abuse victim Mimi Haleyi, a production assistant on “Project Runway” who testified that Weinstein had forced oral sex on her in his TriBeCa apartment in 2006, and from another confidential victim, who was an aspiring actress in 2013 when Weinstein raped her in a Manhattan hotel room. Three other women also told their stories of sexual misconduct to help establish that Weinstein engaged in a pattern of sexual predation. Lucia Evans was originally included as a victim and intended to testify, but her accusations of sexual assault against Weinstein were later dropped from the case. When asked about the trial, she said:

“I am so impressed by the women who participated in the criminal case up through the verdict. Witnessing firsthand many of the obstacles that stood in their way only deepens my appreciation of their courage. I truly wish I was given the opportunity to stand next to them, to see my case through to the end.”

Sexual Assault Survivors Face Victim-Blaming Cross-Examination

As a powerful public figure, Harvey Weinstein had hired an equally powerful set of criminal defense attorneys. Their job was to poke holes in the victims’ stories and create doubt in the juror’s minds. For Ms. Sciorra, that cross-examination quickly turned to claims that she was lying and victim blaming. The defense attorneys pointed out:

  • She could not remember the exact date of the assault
  • Her memory of certain details was unclear
  • She opened her apartment door without first finding out who is on the other side
  • She didn’t run
  • She didn’t see a doctor or call the police after the incident

Weinstein’s attorney Damon Cheronis also claimed that the two victims in the case were actually in consensual relationships with the man to further their careers, saying “The truth is, there was nothing nonconsensual about it.”

These tactics are common in sexual abuse cases and take advantage behaviors common to many trauma survivors. Fatima Goss Graves, President of the National Women’s Law Center explained:

“What defense attorneys do is create a narrative that only one type of person could experience sexual violence, and that there is only one type of response. They discount behaviors that are actually really typical in an effort to blame victims.”

For example, traumatic memories are often stored in disjointed, non-linear ways in the victims’ brains. This means that they are often unable to remember important details, or say specifically when and where the incident occurred. They also exploit the power imbalance between victim and abuser, calling out victims for not coming forward sooner, or for not immediately cutting their abusers out of their lives when, in fact, they often feel powerless to do either.

What is Next for Harvey Weinstein

After all the witnesses had testified, the jury was asked to deliberate on three charges: two counts of criminal sexual misconduct, and one count of being a sexual predator. They found Weinstein guilty of the two individual felony sex crimes, but not guilty of the charge based on his pattern of behavior against multiple victimes. Weinstein was taken to jail (after a brief visit to a hospital because of chest pains). He will remain there until he can be sentenced. He could face up to 29 years in prison. Weinstein’s attorneys have already promised to appeal the decision.

Weinstein also still faces similar charges in Los Angeles, California. That indictment was announced on the first day of the New York trial and will likely take time to come to trial. The Weinstein legal team may also be more inclined to settle now that he has already been convicted once.

Sex assault victims need strong advocacy, not just by prosecutors, but by private sex abuse attorneys who understand the cost of seeing a sexual assault claim to its conclusion. At Eisenberg & Baum, LLP, our experienced sexual abuse attorneys know how to do just that. We can meet with you at our headquarters in the heart of New York City, or conference with you remotely, to help navigate the criminal, civil, and regulatory processes needed to help you find justice. Contact Eisenberg & Baum, LLP, today to talk to a sexual abuse attorney.