The United States faces various emergency declarations, cancellations, shutdowns, and social distancing in response to the coronavirus pandemic. Daily life for many Americans seems to be in suspended animation, with kids home from school, parents telecommuting, and much less traffic than usual.
As the country copes with the virus’s spread, federal and state laws are still in force, including those guaranteeing Americans’ privacy. Federal non-discrimination guarantees may also be invoked to protect people from the recent rise in hate and bias incidents.
Xenophobia, Discrimination, and the Coronavirus
Media reports include instances of xenophobic and discriminatory responses to the Coronavirus outbreak, with many intolerant acts directed at Asian Americans.
According to NBC News:
“More than 200 civil rights groups have demanded that the House [of Representatives] and Senate leadership take “tangible steps to counter the hysteria” around the coronavirus, offering the passage of a joint resolution denouncing the racism and xenophobia as one solution.
The level of disruption COVID-19 has had on everyday life has caught many by surprise and left even more people understandably concerned about their health and the health of their loved ones,” Gregg Orton, national director of the National Council of Asian Pacific Americans, told NBC News.
“For millions of Asian Americans, there is added anxiety in the way the virus has been racialized. For our country’s leaders to come together and set the tone, that despite the uncertainty of these times, we need to stand united against racism —
That is a powerful statement…
The groups also acknowledged that the Congressional Asian Pacific American Caucus had previously sent a letter to their fellow members of Congress. The caucus had called on the lawmakers to “help us prevent hysteria, ignorant attacks, and racist assaults that have been fueled by misinformation pertaining to the 2019 novel coronavirus” by only sharing confirmed and verifiable information. The organizations called on the other legislators to take the caucus’ lead.”
Additionally, ABC News reported that New York State is investigating a possible hate crime associated with the pandemic:
“New York Gov. Andrew Cuomo announced …. that [New York] city’s Hate Crime Task Force was investigating a physical assault on an Asian woman in Manhattan that appeared to have been triggered “by the bigoted notion that an Asian person is more likely to carry or transmit the novel coronavirus.
To be clear, there is zero evidence that people of Asian descent bear any additional responsibility for the transmission of the coronavirus,” he later added.”
What does the law say?
Federal law criminalizes certain intentional acts of intolerance.
The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249 criminalizes if someone willfully causes bodily injury, or attempts to do so using a dangerous weapon, because of the victim’s actual or perceived race, color, religion, or national origin.
The statute extends federal hate crime prohibitions to crimes committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person. This is the first federal statute allowing federal criminal prosecution of hate crimes motivated by the victim’s actual or perceived sexual orientation or gender identity.
Violent interference with federally protected rights, 18 U.S.C. § 245 in the Civil Rights Act of 1968 makes it a crime to use or threaten to use force to willfully interfere with any person because of race, color, religion, or national origin while that person is participating in a federally protected activity, such as public education, employment, jury service, travel, or the enjoyment of public accommodations, or helping another person to do so.
The Civil Rights Act of 1964 prohibits discrimination by places of public accommodation, such as restaurants, hotels, and transportation agencies. Treating someone poorly because of her race, language, or national origin, for example, is a civil rights violation and can result in monetary liability for discrimination.
Federal agencies have recently published guidance about civil rights protections in other contexts, such as the privacy of health and educational information.
The Family Educational Rights and Privacy Act (FERPA) protects the privacy of student education records. (20 U.S.C. § 1232g; 34 C.F.R. Part 99) The law applies to all educational agencies and institutions that receive funds under any program administered by the Secretary of Education, according to the Department of Education (DOE).
Parents and students should be aware of their educational privacy rights if concerns arise about, for example, a student’s possible coronavirus exposure and concerns for the health of the student, his family, and others in the community.
“A parent or eligible student must provide written consent before an educational agency or institution discloses PII from a student’s education records, unless one of the exceptions to FERPA’s general consent rule applies. 20 U.S.C. §§ 1232g(b)(1) and (b)(2); 34 C.F.R. §§ 99.30 and 99.31.
FERPA requires that a consent form be signed and dated by a parent or eligible student and (1) specify the records that may be disclosed; (2) state the purpose of the disclosure; and (3) identify the party or class of parties to whom the disclosure may be made. 34 C.F.R. § 99.30(a) and (b).”
“Although educational agencies and institutions can often address threats to the health or safety of students or other individuals in a manner that does not identify a particular student, FERPA permits educational agencies and institutions to disclose, without prior written consent, … student education records to appropriate parties in connection with an emergency if knowledge of that information is necessary to protect the health or safety of a student or other individuals.”
For additional information, click the link below to view DOE’s March 2020 Guidance entitled, “FERPA & Coronavirus Disease 2019”
The Office for Civil Rights, U.S. Department of Health and Human Services (HHS) has published guidance concerning health care privacy under HIPAA and the coronavirus.
AS HHS notes:
“In light of the Novel Coronavirus (2019-nCoV) outbreak, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) is providing this bulletin to ensure that HIPAA covered entities and their business associates are aware of the ways that patient information may be shared under the HIPAA Privacy Rule in an outbreak of infectious disease or other emergency situation, and to serve as a reminder that the protections of the Privacy Rule are not set aside during an emergency.
… [A HIPAA] covered entity may share protected health information with a patient’s family members, relatives, friends, or other persons identified by the patient as involved in the patient’s care. A covered entity also may share information about a patient as necessary to identify, locate, and notify family members, guardians, or anyone else responsible for the patient’s care, of the patient’s location, general condition, or death. This may include, where necessary to notify family members and others, the police, the press, or the public at large. See 45 CFR 164.510(b).”
HHS’s HIPAA and the Coronavirus guidance can be viewed using the link below:
As life in the United States continues under various states of shutdown and distancing, it is important to remember the many federal anti-discrimination and privacy guarantees that may come into play as Americans weather the viral storm.
© Bruce L. Adelson 2020. All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney. Mr. Adelson is a Department of Family Medicine faculty member at Georgetown University School of Medicine where he teaches organizational culture, implicit bias, cultural and civil rights awareness.
Mr. Adelson’s blogs are a Bromberg & Associates exclusive.