The latest EEOC’s technical assistance prompts employers about concerns of harassment and discrimination during the pandemic, particularly as against Asian employees (which may be on the rise as some refer to COVID-19 as the Chinese Virus or other racially-charged names). The EEOC reminds employers it must take affirmative steps to prevent and address these comments.

These comments can create an unlawful hostile working environment, even when everyone is working remotely. An unlawful hostile working environment can be created even if these types of comments are made only among co-workers (not supervisors) if the employer does not take reasonable steps to prevent the situation and, if a complaint is made, does not take reasonable steps to promptly address and correct the behavior.

Specific to the pandemic and the EEOC’s advice, supervisors must be alert to and aware of derogatory or hostile remarks directed at Asian employees. They should be trained on how to recognize harassment or hostile comments (including when it occurs via electronic communications). They should be trained as to their obligations once they become aware of any harassment or hostile environment.

The EEOC suggests that employers consider sending a reminder to the entire workforce explaining Title VII’s prohibitions and their policy, reminding that employees are required to report any behavior which violates the policy and that disciplinary measures may follow for employees who violate the policy. This may be especially warranted for those workplaces where employees are working remotely as employees and supervisors may have gotten lax in their understanding of the need for compliance in these unusual times.

By Rebecca D. Bullard, rbullard@dsda.com and Kristen L. Brightmire, kbrightmire@dsda.com