Free Speech

New Jersey Attorney General: Employers May Have to Restrict Employees' Saying "Chinese Virus"

|The Volokh Conspiracy |

From a document just released by New Jersey Division on Civil Rights, endorsed by N.J. Attorney General Gurbir S. Grewal: (emphasis added):

What are the LAD's [New Jersey Law Against Discrimination's] protections related to COVID-19 in employment?

An employer cannot discriminate against you because of your actual or perceived race, national origin, religion, disability, or other LAD-protected characteristic. The LAD also prohibits bias-based harassment that creates a hostile work environment. Your employer must take reasonable steps to stop the harassment if they knew or should have known about it, regardless of whether the harasser is a coworker or supervisor.

These protections apply even if the conduct at issue stems from concerns related to COVID-19. So, for example, your employer cannot fire you because you coughed at work and they perceived you to have a disability related to COVID-19. And if you have east-Asian heritage and a coworker repeatedly harasses you by claiming that Asian people caused COVID-19 or calling this "the Chinese virus," your employer must take reasonable action to stop the harassment if they knew or should have known about it.

Now if this were limited to persistent unwanted statements said directly to a particular employee who doesn't want to hear them, that may well be constitutional; there is considerable precedent for the proposition that such speech said specifically to a particular unwilling listener is less constitutionally protected.

But hostile environment harassment law also potentially covers speech said to willing listeners, so long as some listeners are offended. See here for a summary of some examples (though unfortunately I haven't updated it recently). For more recent examples, see Sherman K. v. Brennan, EEOC DOC 0120142089, 2016 WL 3662608 (EEOC) (coworkers' wearing Confederate flag T-shirts on occasion constituted racial harassment); Shelton D. v. Brennan, EEOC DOC 0520140441, 2016 WL 3361228 (EEOC) (remanding for factfinding on whether coworker's repeatedly wearing cap with "Don't Tread On Me" flag constituted racial harassment).

"Harasses you by … calling this 'the Chinese virus'" thus potentially includes a coworker using the phrase in a multi-person online conversation (not about you, but just about the virus or about whether the Chinese government is responsibility responsible for its spread). Or in a chat in the video lunchroom. Or in a joke passed around by e-mail, or a wide range of similar speech. According to the New Jersey government, private employers have a legally binding. governmentally imposed obligation to restrict such speech. Unconstitutional, I think, though I acknowledge that court decisions are sparse and split on the First Amendment question here.

Nor is this limited to employment; the same rules apply to other places where discrimination is forbidden, such as places of public accommodation:

The place of public accommodation also must take action to stop harassment
based on these characteristics if they know or should have known about it, even if the harassment comes from another patient, customer, or student.

These protections apply even if the conduct at issue stems from concerns related to COVID-19. So, for example, if a classmate repeatedly told your child that they must have the coronavirus because they are from China, the school could be liable if you reported it and they did not investigate or take action. Similarly, if someone on a public bus sees that you are wearing a yarmulke and starts screaming that "Jews are spreading the virus," the LAD requires the bus driver and bus company to take action to stop the harassment.

Now it seems to me that bus companies would normally try to do something (to the extent the bus driver can do it) to stop people from "screaming" anything on the bus. But hostile environment harassment law isn't limited to people "screaming." The same logic would apply to people talking to the people they're traveling with about Jews spreading the virus (for the record, we wouldn't do that, since that would interfere with our running the banks and Hollywood), or wearing shirts that have anti-Semitic messages on them—which are fully constitutionally protected speech, whether on buses, in hospitals, in bars and restaurants (when we have them again), or in other places of public accommodation.

Here too, these restrictions imposed by the government on privately owned places of public accommodation violate the First Amendment. The private property owner isn't bound by the First Amendment, and may institute various speech restrictions itself, and the government as employer has some extra authority over speech by its employees. But here the rules are being imposed by the government as sovereign, threatening massive civil liability if the private property owner refuses to restrict speech. For example, the government pressuring private Internet platforms (through the threat of civil liability) to restrict racist or anti-Semitic speech—or speech labeling the coronavirus "Chinese"—would violate the First Amendment, even though the platforms could impose such restrictions on their own. Likewise, the government pressuring other private companies to restrict such speech violates the First Amendment as well.

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  1. What about a judicial fact finding that China/Chinese are or are not responsible? Is truth a defense in harassment claims?

    1. In the course of 3 days(!), “Chinese virus” went from ubiquitous to legally actionable. We’re truly in 1984 territory.

  2. Who needs an actual plague when we have a whole complex of regulators and lawyers desperately seeking out opportunities to punish anyone they can for wrongthink?

    1. Noah, get the boat. We need it.

  3. “Chinese” refers to an ethnicity, a country, and a political leadership of a country. One can well place blame on the political leadership of a country without placing blame in the ethnicity. And there is nothing in the non-discrimination statutes that forbid that, even apart from the First Amendment.

    1. Except it’s not being used in that context. It’s being to cast blame on a group of people. Its call racism.

      1. The group would be the Chinese. How do the Japanese feel about that?

      2. “It’s being to cast blame on a group of people. ”

        No, its being used to blame the country where this virus started. In response to the Chinese government openly blaming the US Army for it.

        The number of Americans carrying water for the ChiCom government is amazing. Not unexpected of course but amazing.

        1. Not unexpected of course but amazing.

          Get your insults straight.

          Few people are amazed by that which they expect.

        2. Ah yes, tit for tat is the real truth.

          And if you don’t like it, you’re a commie.

          Bob, you never disappoint.

        3. Bob from Ohio : “In response to the Chinese government openly blaming the US Army for it”

          The funny thing is, I don’t believe the Chinese government started peddling that crude stupid lie until after Senator Cotton, Steve Bannon and Presidential Medal of Freedom-winner Rush Limbaugh ( and others) started peddling the crude stupid lie this all came from commie biological weapons research. Of course I’ll bet our Bob carries water for that scummy bunch.

          Also, from its earliest beginings this calamity had a name, the Coronavirus. Then Trump decided to rebrand it, just to squeeze out a little jingoistic entertainment for his more lizard-brain supporters. Just think about it : The entire world is in the middle of an unprecedented catastrophe and that’s what our realty-TV-show president is worried about : pandering to the lowest common denominator of his base.

          People like – well – Bob……

          1. There is a good chance that it DID come from the Wuhan Institute of Virology — and it’s not just the US that accuses that place of doing bioweapons work.

      3. “Except it’s not being used in that context. It’s being to cast blame on a group of people. Its call racism.”

        It’s being used to distract Trump’s critics. Trump looks like he is engaged in petty finger-pointing when he calls it the “Chinese Virus”. But instead of letting him look petty, we have to have a debate about the rather questionable claim that it’s “racist”.

        1. Yeah, no point in blaming Trump for doing needless harmful crap just blame the people who get mad when Trump does needless harmful crap

      4. Except its not. It being used to refer to where the virus started. So its factual. At worse, its being used to blame the Chinese GOVERNMENT, not the people. And the government is absolutely to blame for their handling of the virus.

  4. Like this is the first time a disease has been named after an ethnic group. Funny how this was not a concern until the PRC started sniveling about it.

    1. This virus originated (or jumped to humans) in China, and it’s spread was enabled by the Chinese government’s attempts to cover it up, but you should not call it the “Chinese virus” – because that is so _nonspecific_. Except for Ebola, every scary new virus in the last 30 years originated in China, and most were enabled by Chinese government cover-ups, so which “Chinese virus” are you talking about?

      1. The Wuhan Chinese Virus

  5. When are we going to be required to apologize to chickens and pigs for naming previous diseases “bird flu” and “swine flu”?

  6. It’s good to know that the state of New Jersey has people with time to write memos like this. They must really have this pandemic thing under control!

    1. I promise, the lawyers responsible for this would be no help whatsoever fighting a disease

    2. When you’re stuck at home telecommuting, and you can’t do your regular work due to computer connectivity issues, you have plenty of time to write memos like this.

  7. What if you simply point out that any virus that spreads like this one must be really good at math?

    1. It didn’t take long for the bigots to come out.

      1. Lighten up, Francis.

        1. I mean, he answered your question, in a way.

  8. Handy tips on freedom of expression from a blog that engages in viewpoint-controlled censorship . . .

  9. Okay, so two Chinese lesbian comedians walk into a courtroom . . .

  10. It’s not the Chinese Virus? Ignore that fact and it will go away? China denied the flu even existed for two months and prosecuted ANY Chinese who told the truth and refused all outside assistance or monitoring for 3 months. Then China claimed that the Chinese Flu came from the US. China also claims it had only 3000 Chinese Flu deaths. Yet Italy, with the same population demographics, already has more. No one, with any common sense, can believe any claims made by the Chinese Communist Party. They have not been verified and still cannot be confirmed. They are just doing what communists and dictators always do. It would almost be laughable except that China has now produced FIVE of the worlds most deadly viral outbreaks, SARS FLU, ASIAN FLU, SWINE FLU, BIRD FLU AND NOW THE CHINESE FLU. The communist party is an existential threat to world health. Liberals and fools don’t want us to know that.

    1. Hope it’s satire, fear it’s proving the narritivist side correct.

  11. Our historic and current medical lexicon includes Spanish Flu/Influenza, MERS (Middle East Respiratory Syndrome), SARS (South Asia Respiratory Syndrome), Legionnaire Disease, and West Nile Virus. All are geographic descriptions and nomenclature of a disease/illness that are an accepted part of the scientific and medical community. Except for the fact that the current President is using the geographic-specific disease/illness, why the complaints of racism and hysteria? Many of the media and social warriors are on video/digital recording s using the same term (Chinees or Wuhan Virus) in January 2020 that they assert is racist in February and March. Rank hypocrisy and intellectual dishonesty. In light of who is criticizing, I have a low bar for minimal decency. Even with a low bar, the hypocrisy is shocking.

    1. SARS is Sudden Acute Respiratory Syndrome. It did come from a wet market in China, but not from South Asia.

    2. “Spanish flu” is a misnomer – because Spain had the free-est press of all the countries suffering from the main wave of this flu in 1918, and so was the first place where the epidemic was reported. War-time censorship suppressed the news in the USA, Great Britain, France, and Germany (and continued for months after the Armistice), lest the public realize that their governments were spreading a deadly disease by continuing to hold millions of soldiers in overcrowded camps, moving masses of them around, and finally spread the disease to their civilians by shipping the troops home.

  12. The same logic would apply to people talking to the people they’re traveling with about Jews spreading the virus (for the record, we wouldn’t do that, since that would interfere with our running the banks and Hollywood)

    Sad thing is that would get you kicked out of a lot of colleges today.

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