The Equal Employment Opportunity Commission is considering whether wearing clothing in the workplace with the Gadsden flag printed on it constitutes legally actionable racial harassment.
According to Eugene Volokh, a UCLA law professor who runs the “Volokh Conspiracy” blog at The Washington Post, the EEOC ruled two months ago that it will need to collect more evidence in a case filed in Jan. 2014 by an African American federal employee who complained about his coworker wearing a hat with the Gadsden flag printed on it.
The complainant said that the Gadsden flag, which was designed during the Revolutionary War in 1775 and has become popular with the Tea Party movement, is racist because its designer, Christopher Gadsden, was “a slave trader & owner of slaves.”
And though the complainant made no claim that his coworker made any racist remarks while wearing the hat, he said that the Gadsden flag — the iconic yellow banner, which shows a coiled rattlesnake above the words “Don’t Tread on Me” — is a “historical indicator of white resentment against blacks stemming largely from the Tea Party.”
According to the EEOC ruling, which Volokh reports is not publicly available because the proceedings are done in secret, the complainant said that he complained to his bosses about his coworker wearing the hat and that they said they asked him to stop wearing it. The coworker continued wearing the attire, however.
The EEOC has not issued a final ruling on the case, and the employment discrimination agency stated in its preliminary ruling that the Gadsden flag is not inherently racist. But it says it needs to collect more evidence about the context in which the hat was worn in order to make a final determination in the case.
“In light of the ambiguity in the current meaning of this symbol, we find that Complainant’s claim must be investigated to determine the specific context in which [the coworker] displayed the symbol in the workplace,” the preliminary ruling reads.
“It is clear that the Gadsden Flag originated in the Revolutionary War in a non-racial context,” it continues. “Moreover, it is clear that the flag and its slogan have been used to express various non-racial sentiments, such as when it is used in the modern Tea Party political movement, guns rights activism, patriotic displays, and by the military.”
“However,” the EEOC added, “whatever the historic origins and meaning of the symbol, it also has since been sometimes interpreted to convey racially-tinged messages in some contexts.”
As evidence to support that claim, the commission cited a 2014 shooting at a Walmart in Las Vegas in which two white supremacists murdered two police officers and draped the Gadsden flag over their bodies.
Volokh was critical of the decision to further the investigation into the incident, arguing that it may have a chilling effect on free speech in the workplace.
He says that though the case involves employees at a federal agency, if the EEOC determines that the Gadsden flag is offensive in that setting, all employers — public and private — may be held liable for hostile workplace harassment if their employees wear the Gadsden flag or any other attire that complainants deem to be racist.
“This is a case about the rules that all employers, public or private, must follow, on pain of massive legal liability,” Volokh writes. “The harassment law rules (which, as I noted, are the same for private employers as for the federal government) are imposed by the government acting as sovereign — the area where the First Amendment should provide the most protection — not just the government acting as employer.”
Pointing to rulings over the past several years which determined that Confederate flag attire constitutes hostile workplace harassment, Volokh offered up scenarios in which employers hoping to avoid legal liability restrict employees from wearing or displaying items with the slogans “All Lives Matter,” “Stop Illegal Immigration” or even “Trump/Pence.”
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