The U.S. Equal Employment Opportunity Commission has now taken the position that displaying the Gadsden flag (AKA the “Don’t Tread on Me” flag) constitutes racial harassment.
As UCLA Professor Eugene Volokh points out in The Washington Post, the EEOC decided the case of Shelton D. [pseudonym] v. Brennan two months ago: The complainant, “Sheldon D,” argued that as a black man he had been racially discriminated against because a coworker wore a hat with the Gadsen flag emblazoned on it to work.
What logic did “Sheldon D.” use to make his accusation? That the 18th century designer of the flag, Christopher Gadsden, was a “slave trader & owner of slaves.” He also contended that Gadsden Flag is a “historical indicator of white resentment against blacks stemming largely from the Tea Party.”
At first, the EEOC seems rational, stating, “ … it is clear that the Gadsden Flag originated in the Revolutionary War in a non-racial context. 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.”
But with a chance to put the fear of government into the workplace, the EEOC continues, “However, whatever the historic origins and meaning of the symbol, it also has since been sometimes interpreted to convey racially-tinged messages in some contexts. For example, in June 2014, assailants with connections to white supremacist groups draped the bodies of two murdered police officers with the Gadsden flag during their Las Vegas, Nevada shooting spree.”
Great. Two nutcases use the Gadsen flag, and suddenly the flag’s historic meaning has no relevance any more?
Wait, it gets even more ridiculous. The EEOC asserts, “Additionally, in 2014, African-American New Haven firefighters complained about the presence of the Gadsden flag in the workplace on the basis that the symbol was racially insensitive.”
On what basis, pray tell? Because some people ascribe nefarious motives to a symbol of revolution against tyranny we have to take them seriously?
Volokh cogently delineates how dangerous such a position is:
Let’s think about how this plays out in the workplace. Imagine that you are a reasonable employer. You don’t want to restrict employee speech any more than is necessary, but you also don’t want to face the risk of legal liability for allowing speech that the government might label “harassing.” An employee comes to you, complaining that a coworker’s wearing a “Don’t Tread on Me” cap — or having an “All Lives Matter” bumper sticker on a car parked in the employee lot, or “Stop Illegal Immigration” sign on the coworker’s cubicle wall — constitutes legally actionable “hostile environment harassment,” in violation of federal employment law. The employee claims that in “the specific context” (perhaps based on what has been in the news, or based on what other employees have been saying in lunchroom conversations), this speech is “racially tinged” or “racially insensitive.”
Would you feel pressured, by the risk of a lawsuit and of liability, into suppressing speech that expresses such viewpoints? Or would you say, “Nope, I’m not worried about the possibility of liability, I’ll let my employees keep talking”? (Again, the question isn’t what you may do as a matter of your own judgment about how you would control a private workplace; the question is whether the government is pressuring you to suppress speech that conveys certain viewpoints.)
Then Volokh extrapolates from the decision at hand to the current political climate:
Now let’s get to the 2016 election campaign. Say someone wears “Trump/Pence 2016” gear in the workplace, or displays a bumper sticker on his car in the work parking lot, or displays such a sign on his cubicle wall, or just says on some occasions that he’s voting for Trump. He doesn’t say any racial or religious slurs about Hispanics or Muslims, and doesn’t even express any anti-Hispanic or anti-Muslim views (though even such views, I think, should be protected by the First Amendment against the threat of government-imposed liability).
But in “context,” a coworker complains, such speech conveys a message “tinged” with racial or religious hostility, or is racially or religiously “insensitive.” The coworker threatens to sue. Again, say you are an employer facing such a threat. Would you feel pressured by the risk of liability to restrict the pro-Trump speech?
“Workplace harassment law has become a content-based, viewpoint-based speech restriction, including on core political speech.”
Eugene Volokh
Volokh concludes:
… employers are in practice more likely to come down on speech that expresses viewpoints that might trigger harassment claims — such as calls to elect candidates who want to build a wall on the Mexican border, or limit immigration from Muslim countries — than on speech that expresses contrary viewpoints. Workplace harassment law has become a content-based, viewpoint-based speech restriction, including on core political speech. A pretty serious First Amendment problem, I think.
You bet it is.