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Excerpted From: Ruqaiijah Yearby and Seema Mohapatra, Systemic Racism, the Government's Pandemic Response, and Racial Inequities in Covid-19, 70 Emory Law Journal 1419 (2021) (316 Footnotes) (Full Document)


YearbyandMohapatraIn June 2020, agricultural workers at a pistachio farm in Wasco, California, many of whom were racial and ethnic minorities, learned about a COVID-19 outbreak from other workers and the media. By that time, 150 workers and 65 family members tested positive. After the announcement, the farm started to make masks available free of cost, whereas before they were charging workers $8 per mask. In California, a COVID-19 outbreak at the Farmer John pork processing plant began in 2020 and has continued for nearly a year, ôwith more than 300 cases reported in January (2021) alone.ö A nurse asked Latinos for additional identification, made them wait for appointments and test results, and called the police saying undocumented immigrants were seeking testing at the Elkhart County, Indiana, health care site. In North Carolina, it is alleged that hospitals were sending away some Latinos even though their COVID-19 symptoms were serious enough to be admitted to the hospital. Rana Zoe Mungin, a Black teacher, was twice denied a COVID-19 test and her symptoms were dismissed by an EMT as a panic attack. She later passed away from COVID-19 at Brooklyn, New York's Brookdale Hospital. Deborah Gatewood, a Black, sixty-three-year-old Detroit health care worker, was turned away four times with COVID-19 symptoms from Beaumont Hospital, where she had worked for thirty-one years. These racial inequalities in employment and health care are associated with racial inequities in COVID-19 infections and deaths.

Historically, the federal and state government's legal and policy response to pandemics has ignored these racial inequalities in employment and health care, which are linked to racial inequities in infection and death. During the COVID-19 pandemic, the federal and state governments have not only continued to disregard these inequalities in employment and health care, but they have also enacted laws and implemented policies that further exacerbate these inequalities, harming racial and ethnic minorities. For example, prior to May 2020, Iowa's policy was to publicly confirm COVID-19 cases at businesses. However, when major COVID-19 outbreaks at meat and poultry processing plants occurred in May 2020--which were predominantly staffed by racial and ethnic minorities and undocumented immigrants--officials would only confirm outbreaks at businesses if 10% of a company's employees tested positive and reporters asked about the outbreaks. This hampered reporting of cases and local officials' efforts to control infections, as the state even limited information given to local officials, including Perry city officials, where it was later learned that 58% of employees tested positive at a Tyson plant in Perry. The failure to report cases left workers vulnerable to the workplace exposure of COVID-19. Although these laws and policies seem race ôneutral,ö they disproportionately harm racial and ethnic minorities, and are a result of systemic racism.

Systemic racism is a social system wherein the racial group in power creates a racial hierarchy that deems other racial groups to be inferior and grants those ôinferior racesö fewer resources and opportunities. In the United States, this racial hierarchy has become embedded in the government's pandemic response, often limiting racial and ethnic minorities' equal access to key resources such as employment benefits and protections, as well as COVID-19 testing, health care treatment, and vaccines. As a result, racial and ethnic minorities face increased risk of workplace exposure to COVID-19 because they work in low-wage, essential jobs that do not provide the option to work from home, and they cannot afford to miss work even when they are sick. In fact, research shows that only 16.2% of Latinos and 19.7% of Blacks have jobs that they perform from home. This means that only 1 in 6 Latinos and 1 in 5 Black workers can telework. Furthermore, the jobs often do not provide health insurance, and thus, racial and ethnic minorities lack access to appropriate testing and treatment during the COVID-19 pandemic. ôBlacks remained 1.5 times more likely to be uninsured than whites from 2010 to 2018,ö and Latinos have an uninsured rate over 2.5 times higher than the rate for whites. Due to increased workplace exposure and lack of access to treatment, racial and ethnic minorities have disproportionately been infected and died from COVID-19.

To put an end to racial inequities in COVID-19 infections and deaths, the government should adopt the health justice framework, which provides a community-informed agenda for transforming the government's emergency preparedness responses to eradicate systemic racism and achieve health equity. Based in part on principles from the reproductive justice, environmental justice, food justice, and civil rights movements, the health justice framework offers three principles to improve the government's emergency preparedness response: (1) structural remediation, (2) financial supports and accommodations, and (3) community engagement and empowerment. First, emergency preparedness laws and policies must address systemic racism by structurally changing the systems that cause racial inequalities in access to key resources. Second, these emergency preparedness laws and policies must be accompanied by financial supports and protections, so that racial and ethnic minorities can stay home when they are sick. Third, racial and ethnic minorities must be engaged and empowered as leaders in the development and implementation of emergency preparedness laws and policies to ensure that the laws address their needs. By adopting these three steps, the government can improve their emergency preparedness response by not only protecting racial and ethnic minorities from harm, but also by providing material and institutional support to address racial inequities in COVID-19 infections and deaths.

Many vulnerable communities, including those that are low-income, disabled, and elderly, have experienced inequities in COVID-19 infections and deaths. In this Essay, we use racial and ethnic minorities as an illustrative example of how the federal and state government's legal and policy response to pandemics has failed to address, and sometimes even exacerbated, inequities for many vulnerable communities. Building on the work of public health researchers, sociologists, legal scholars, and our prior work, we examine how the interplay of systemic racism, the government's pandemic response, and unequal access to resources has resulted in racial inequities in COVID-19 infections and deaths. We argue that these problems can be fixed by integrating the health justice framework, an emerging concept, into the federal and state governments' pandemic response.

This Essay proceeds as follows. Part I discusses two forms of systemic racism (structural and interpersonal), how they negatively influence the federal and state governments' pandemic response, and the principles of the health justice framework that should be used to eradicate systemic racism in the government's pandemic response. Using meat and poultry processing workers as an example, Part II demonstrates how systemic racism in the government's pandemic response has caused and exacerbated employment inequalities. It concludes with suggestions for integrating the health justice framework into the government's pandemic response, such as requiring employee safety boards in all essential businesses. Part III explores examples of systemic racism in health care and how they have manifested themselves in this pandemic. After providing an overview of the challenges in health care that were laid bare in this pandemic, we suggest changes in income supplementation, universal health care coverage, medical educational incentives, and community involvement in decision-making.

[. . .]

The COVID-19 pandemic has laid bare the inequalities in employment and health care, which have caused racial inequities in infections and deaths. These inequalities are a result of systemic racism, wherein the pandemic responses of federal and state governments, as well as companies, have disempowered and devalued the lives of racial and ethnic minorities. This Essay attempts to outline how systemic racism played out in COVID-19, using examples in employment and health care.

Systemic racism is not a simple problem, and thus, there is not a simple solution. However, attention needs to be paid to this issue, and broad change is needed unless we want to repeat these inequities in future health emergencies. As a first step, the government must eradicate these inequalities by actively addressing systemic racism, which has not only influenced its pandemic response, but also destroyed trust in the government.

Specifically, federal and state governments must structurally remediate the inequalities in employment and health care, provide financial supports and accommodations, and engage and empower racial and ethnic minorities most impacted by COVID-19 to develop, implement, and evaluate new emergency preparedness laws and policies that aim to eradicate racial inequities.

Ruqaiijah Yearby, Professor of Law and Member of the Center for Health Law Studies, Saint Louis University School of Law; Co-Founder and Executive Director, Institute for Healing Justice, Saint Louis University; J.D., Georgetown University Law Center; M.P.H. Health Policy and Management, Johns Hopkins School of Public Health; B.S. Honors Biology, University of Michigan.

Seema Mohapatra, Murray Visiting Professor of Law, SMU Dedman School of Law; J.D., Northwestern University School of Law; M.P.H. Chronic Disease Epidemiology, Yale University School of Public Health; B.A. Natural Sciences, with a minor in Women's Studies, Johns Hopkins University.

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