“I Can’t Breathe”: What the Coronavirus Pandemic and George Floyd Protests Have Taught Us About Race
Updated: Jan 23, 2021
Every day we learn more and more about the disparate impact the coronavirus epidemic has inflicted on communities of color. From an early stage, as the virus wreaked havoc across the country, it became apparent that illness and death disproportionately plagued Black and Brown communities. According to the Centers for Disease Control and Prevention (“CDC”), American Indian or Alaskan Natives are 1.8x more likely than Whites to contract the virus, 4.0x more likely to be hospitalized, and 2.6x more likely to die. For Black Americans that comparison is 1.4x more likely to contract the virus, 3.7x more likely to be hospitalized, and 2.8x more likely to die. For Hispanic or Latino individuals, the numbers are 1.7x more likely to contract the virus, 4.1x more likely to be hospitalized, and 2.8x more likely to die.  Black individuals have comprised over 34% of deaths due to Covid-19 even though they comprise about 13.4% of the population.
Covid-19, of course, is a respiratory illness that inflames the lungs, making it difficult to breathe, and in severe cases, destroys the lungs’ ability to process oxygen. As of the time this article goes to press, over 400,000 Americans will have died from the virus, with the numbers increasing by the thousands every day. So breathing was already on my mind on May 25, 2020 when George Floyd, a 46-year-old Black man, was murdered by the Minneapolis police in broad daylight. Caught on video, his death resulted after a White police officer, Derek Chauvin, pressed his knee into Floyd’s neck for eight minutes and 46 seconds with three other officers standing by. As Mr. Floyd pled for his life, he called out “I can’t breathe” 26 times before dying of asphyxia and other related reasons.
White America might have been shocked, but Black America less so, having been, once again, disproportionately adversely impacted by police brutality. Indeed, the original resonance of “I can’t breathe” as a cry to protest was first heard well back in 2014, after the strangulation of Eric Garner by New York City police officer Daniel Pantaleo, who had applied a chokehold to Garner and refused to release him, even after Garner called out 11 times “I can’t breathe” while lying face down on the sidewalk, pinned to the ground. Garner’s death was also ruled a homicide. His eldest daughter, Erica Garner, became an outspoken activist against police brutality. Sadly, she died at 27, leaving behind two young children. The cause of her death – cardiac failure after suffering a severe asthma attack. Asthma, like Covid-19, is a lung condition that makes it difficult to breathe.
Breathing is something most of us take for granted. It is essential to survival. And as I contemplated breathing and illness and death, my thoughts turned to the workplace. This may not be the most obvious leap to many, but for me it made perfect sense. My daily life is immersed in phone calls from workers expressing frustrations about coronavirus and discrimination. Those communities suffering most from negative outcomes of the coronavirus are those whose labor we have exploited for centuries. Our laws have entrenched poverty in such a way that our fellow Black and Brown Americans cannot take for granted the same health as their White counterparts. They quite literally cannot take breathing for granted to the same extent.
Because I practice in employment law and advocate for workers’ civil rights, I am acutely aware of how workforce protections are littered with the vestiges, both unconscious and explicit, of racist formulations of work. Such assumptions have led to an ever more uneven distribution of wealth, consequently resulting in, like a domino effect, adverse outcomes to other quality of life issues, such as housing and access to healthcare. Since slavery, the types of work Black individuals and other racial minorities were relegated to, limited their wealth while maximizing that of others. Overrepresented in manual labor, farming, or domestic work, Black and Brown workers gained little if any wealth, prestige, or power while creating the foundations of our economy, wealth, and functioning of society. During slavery, Black workers raised food, watched children, cooked, and cleaned homes, amongst other labors, at no salary. After emancipation, in order for White society to continue to benefit from these arrangements, both explicitly racist and facially neutral laws were passed. Thus, it is not by chance that the jobs we have deemed essential for purposes of the pandemic today are some of the lowest paying, most dangerous jobs in America. They originated from these histories of idealizing certain types of work while devaluing other essential services.
Today, our economy is organized around the false dichotomy of skilled and unskilled labor. Skilled labor entitles one to high wages, good healthcare insurance, generous benefits, stronger legal protections, and the power to enforce those legal protections. Unskilled labor, however, provides the opposite: low wages, little if any access to quality healthcare, few benefits, fewer legal protections, and more obstacles to justice. These distinctions have little to do with whether the work is essential to the functioning of our society, or even its value to the overall economy.
Take for example meat and poultry-processing workers. On April 28, 2020, in the midst of a wave of coronavirus outbreaks, President Donald Trump invoked the Defense Production Act to facilitate the continued operation of processing plants because “[s]uch closures threaten the continued functioning of the national meat and poultry supply chain, undermining critical infrastructure during the national emergency. [And because] [g]iven the high volume of meat and poultry processed by many facilities, any unnecessary closures can quickly have a large effect on the food supply chain.” According to the CDC, in April and May, at least 16,233 workers across 239 meat and poultry preparation facilities had become infected with the virus, resulting in at least 86 deaths. Of those, 87% occurred among racial or ethnic minorities.
Close to home, a massive outbreak had occurred at the JBS meatpacking facility in Greeley. At least 294 workers had been infected with Covid-19, and six had died. The workforce in the meatpacking industry is almost 35% Hispanic or Latino and 21.9% Black compared with 16.8% and 11.3% of the general workforce, respectively. Immigrants comprise approximately 37.5% of all meatpacking workers, in contrast to 17.1% of all workers across all economic sectors. For poultry-processing workers, 26.5% are Hispanic or Latino; 37.2% are Black, and immigrants comprise 28.1% of the workforce. In May of 2020, congressional Republicans sought to introduce legislation that would have completely shielded the meat and poultry-packing industries from lawsuits for Covid-related illness or death, in effect implying that workers’ lives were cheap and completely expendable so long as their labor benefited the quality of life for the rest of us.
This last maneuver – the attempt by Congress to exclude certain groups of “unskilled” workers from protections afforded to the rest of us “skilled” workers – is a common practice throughout history, leading to much of the economic poverty communities of color continue to grapple with, and impacting female-headed households especially. Such poverty manifests in circumstances that facilitate the spread of Covid-19, such as cramped living conditions and densely populated buildings, resulting in rampant intra-familial and community spread. Such jobs not only pay less, but are less likely to provide paid leave, subsidized health insurance, and other benefits. These ills have demonstrably manifested in disparate health outcomes in communities of color, particularly Black and Brown communities. And these conditions have all come about as a direct result of racialized and gendered conceptions of work influencing this country’s labor laws.
Take the Fair Labor Standards Act (“FLSA”) - when Congress passed the groundbreaking FLSA in 1938, its sponsors purposefully excluded agricultural workers, resulting in an industry chronically mired in poverty and other workplace abuses. According to a statement by Gardner Jackson, Volunteer Executive Secretary of the National Committee on Rural and Social Planning, during hearings on passage of the bill, the reason was clear: “You, Mr. Chairman, and all your associates on this Committee know as well as I do that agricultural laborers have been explicitly excluded from participation…for the simple and effective reason that it has been deemed politically certain that their inclusion would have spelled death of the legislation in Congress.”
Thus, although today by one estimate the agricultural workforce is as much as 83% Hispanic or Latino, and heavily immigrant, back then it was predominantly Black. Agricultural workers were denied a basic minimum wage because the work was considered Black work. The bill sponsors, then, included the exemption to secure the support of southern congressman or the FLSA would not pass. And while the FLSA was finally amended to guarantee farmworkers a basic minimum wage in 1966, such workers are still not guaranteed overtime. Similar exclusions for agricultural workers are found in nearly all legislation from the New Deal era, including the Social Security Act of 1935, which excluded agricultural and domestic workers, and the National Labor Relations Act of that same year, which to this day excludes any “individual employed as an agricultural laborer, or in the domestic service of any family or person at his home…”
Farmworkers engage in backbreaking work, often times for long hours, resulting in harmful short- and long- term health effects. Many are afflicted by an increased prevalence of acute and chronic respiratory conditions, once again restricting their ability to simply breathe. About 100 agricultural workers suffer a lost-work-time injury every day, yet few receive paid time off. The annual average income for a farmworker is between $15,000 and $17,499. For migrant farmworkers, the median annual salary is about $7,500. Here again, wages do not reflect the value of agricultural work to our society. Clearly, we need to eat to stay alive. Like the meatpacking plants, President Trump’s executive orders shed light on this tension, for in April of 2020, when most states were sheltering in place, he declared farmworkers “essential” and “critical to the food supply chain,” entitling them, including those who were undocumented, to letters saying as much from the Department of Homeland Security, and hopefully offering them some protection from arrest by local law enforcement for violating stay-at-home orders.
It is not possible to go through all of the purportedly neutral employment legislation that has been impacted by our history of racist oppression, both overtly and unconsciously. It is enough for now to state only that the economic value of certain forms of work are not accurately reflected in the conditions under which they take place, or in our laws, and that this has serious consequences, including death. So, what I thought about this summer, as protesters called out “I can’t breathe” and Covid-19 continued exacting its devastating toll, is that, yes, the protests over George Floyd’s death were about the racial injustice of policing and police brutally, but that they were also about much more. They were about injustice and inequality everywhere, including at work. And there is much that must be fixed.
 Centers for Disease Control and Prevention, COVID-19 Hospitalization and Death by Race/Ethnicity, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-race-ethnicity.html (Nov. 20, 2020).  John Hopkins University of Medicine, Racial Data Transparency, https://coronavirus.jhu.edu/data/racial-data-transparency.  Patricia Mazzei, The virus death toll in the U.S. has passed 400,000, https://www.nytimes.com/2021/01/19/us/coronavirus-deaths-usa-400000.html (Jan. 19, 2021).  27-cr-20-12951, Court-Filed Transcript, https://int.nyt.com/data/documenthelper/7070-exhibit-final07072020/4b81216735f2203a08cb/optimized/full.pdf#page=1 filed July 7, 2020).  Al Baker, J. David Goodman and Benjamin Mueller, Beyond the Chokehold: The Path to Eric Garner’s Death, https://www.nytimes.com/2015/06/14/nyregion/eric-garner-police-chokehold-staten-island.html (June 13, 2015).  Vivian Wang, Erica Garner, Activist and Daughter of Eric Garner, Dies at 27, https://www.nytimes.com/2017/12/30/nyregion/erica-garner-dead.html (Dec. 30, 2017).  Executive Order on Delegating Authority Under the DPA with Respect to Food supply Chain Resources During the National Emergency Caused by the Outbreak of COVID-19, https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-delegating-authority-dpa-respect-food-supply-chain-resources-national-emergency-caused-outbreak-covid-19/ (April 28, 2020).  Centers for Disease Control and Prevention, Update: COVID-19 Among Workers in Meat and Poultry Processing Facilities – United States, April – May 2020, https://www.cdc.gov/mmwr/volumes/69/wr/mm6927e2.htm (July 10, 2020).  Colorado Department of Public Health & Environment, Outbreak Data, https://covid19.colorado.gov/covid19-outbreak-data.  Angela Stuesse and Nathan T. Dollar, Economic Policy Institute, Who are America’s meat and poultry workers, https://www.epi.org/blog/meat-and-poultry-worker-demographics/ (Sept. 24, 2020).  Juan F. Perea, The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act, 72 Ohio St. L.J. 95, 114 (2011).  Id. at 127.  U.S. Department of Labor, Fair Labor Standards Act in Agriculture, https://www.dol.gov/agencies/whd/agriculture/flsa.  Laurence E. Norton II & Marc Linder, Down and Out in Weslaco, Texas and Washington, D.C.: Race-Based Discrimination Against Farm Workers Under Federal Unemployment Insurance, 29 U. Mich. J.L. Reform 177, 197 (1996) (discussing history of farmworker exclusions in New Deal legislation); see also Juan F. Perea, Destined for Servitude, 44 U.S.F. L. Rev. 245, 248 (2009) (discussing history behind exclusion of farmworkers and domestic workers from the Social Security Act).  29 U.S.C.A. § 152.  Steven Kirkhorn and Marc B. Schenker, Human Health Effects of Agriculture: Physical Disease and Illnesses, Immanuel St. Joseph’s-Mayo Health System, https://nasdonline.org/1827/d001772/human-health-effects-of-agriculture-physical-diseases-and.html#:~:text=Farmers%20have%20an%20increased%20prevalence,stress%20and%20adverse%20reproductive%20outcomes (2001).  Centers for Disease Control and Prevention, Agricultural Safety, https://www.cdc.gov/niosh/topics/aginjury/default.html.  SB 1121 Senate Bill, Bill Analysis, http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_1101-1150/sb_1121_cfa_20100625_150353_asm_comm.html.  Juan F. Perea, 72 Ohio St. L.J. 95, at 127.  Miriam Jordan, Farmworkers, Most Undocumented, Become ‘Essential’ During the Pandemic, https://www.nytimes.com/2020/04/02/us/coronavirus-undocumented-immigrant-farmworkers-agriculture.html (Updated April 10, 2020).
Iris Halpern is a partner at Rathod Mohamedbhai LLC specializing in employment discrimination. Before joining Rathod Mohamedbhai, Iris worked as a trial attorney for over seven years, ultimately serving as the Senior Trial Attorney and an Acting Supervisory Attorney in the Denver Field Office of the Equal Employment Opportunity Commission. In her career, Iris has served as the lead trial attorney on many class-wide cases, notably to enforce religious and disability accommodations and to eradicate sexual and racial harassment in the workplace. She is also active in the LGBTQ community, having piloted several cases seeking to expand protections for gay, lesbian, and transgender employees under federal antidiscrimination laws, and serving on the Board and as the 501(c)(4) Chair of One Colorado. She has published widely on various legal civil rights topics particularly in the fields of electronic discovery in employment discrimination cases and use of the rules of civil procedure and evidence in sexual harassment cases. She co-authored the chapter on a plaintiff’s perspective on e-discovery in the American Bar Association (ABA) & Bloomberg BNA treatise WORKPLACE DATA: LAW AND LITIGATION. Before coming to Colorado, Iris was a Fulbright Scholar in Toronto, Canada and worked for many years as a union organizer for the Service Employees International Union.