LEGAL LIABILITY FOR ENGAGING IN ASIAN-BASED DISCRIMINATION – THERE IS A LEGAL CONSEQUENCE TO DOING SO.

Both regrettably and predictably, racism and discrimination appear to be surging with the spread of the COVID-19 virus.

Credible sources now report that xenophobia, racially-motivated acts of discrimination and harassment towards ethnic groups is increasing.

Through public messaging by some, including the President of the United States, COVID-19 has been referred to as the “Chinese” and the “Wuhan” virus, on the basis that it is believed to have originated in Wuhan, China.

Doing so only serves to reinforce negative connotations, perception and stigma, inescapably encouraging more pronounced and insidious racist ideologies and prejudices directed at a specific ethnic group.

As a result, members of our Asian ethnicities have been targeted. Some report experiencing more racist acts during the pandemic, presumably attributable to existing racist views, assumptions and unconscious biases of racialized people and groups, as well as stigma, fear, or being misinformed.

There is some legal protection against these unjustified acts, promulgated by Canada’s Criminal Code (hate crimes, etc.).

In addition, employees in Ontario are protected by Ontario’s Human Rights Code (the “Code”) in terms of the COVID-19 pandemic. Currently, those protections include:

– it is discriminatory to treat employees who have, or are perceived to have, contracted COVID-19, in a negative manner, for reasons unrelated to public health and safety;

– employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety;

– employers should not treat employees in a differential manner over COVID-concerns, unless these concerns are reasonable and consistent with the most recent advice of medical and public health officials;

– unless an employee can provide a legitimate reason why he or she cannot work, employers have a right to expect they will continue to perform their work. If an employee is required to self-isolate for legitimate reasons, the employer can explore alternative options to allow the employee to continue to work;

– employers may not discipline or terminate individual employees who are unable to come to work because medical or health officials have quarantined, or advised them to self-isolate and stay home because of COVID-19 concerns;

– employers should accommodate employees who have care-giving responsibilities to the point of undue hardship, which may include working from home, reduced hours or leave without pay;

– employers should take requests for accommodation in good faith and avoid requiring medical notes to justify employee absences where such notes are unnecessary; and

– it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers should also remind employees that it is unacceptable to treat other employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry.

Differential treatment related to this virus is not permissible and prohibited by Ontario’s law.

COVID-19 does not discriminate against specific ethnic groups, why would we?

We should all raise our voices against stigma and discrimination. 

Nervous fear is natural and expected in this crisis, but it cannot translate into short-signed, divisive hate-mongering. This is not a “Chinese” virus, as a certain leader may espouse. Rather, this is global pandemic, of which we are all, by necessity, a part.

Civility must prevail. Solidarity and altruism, not bigotry, will triumph.

We are all in this together.