The Equal Employment Opportunity Commission (EEOC), which sets the standards for what constitutes a “hostile work environment” for all employers in America, insisted on reopening a case where an employee said wearing a hat with the Gadsden — “Don’t Tread on Me” — flag is “racially offensive to African Americans.”
An anonymous employee complained about his coworker wearing the hat because “the flag was designed by Christopher Gadsden, a ‘slave trader & owner of slaves.'” The employer dismissed the complaint, but the EEOC ordered it reinstated, suggesting further investigation over whether news events or statements in the workplace gave the flag a “racially tinged” message.
In that very decision, EEOC acknowledged that the flag is mostly political, rather than racial.
“It is clear that the Gadsden Flag originated in the Revolutionary War in a non-racial context,” the EEOC ruling reads. “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, gun rights activism, patriotic displays, and by the military.”
Nevertheless, the EEOC insisted that the flag’s meaning has some “ambiguity,” since it was used in a tragic shooting of police by white supremacist groups in June 2014.
Since the EEOC considers standards for work environments across America — in public and private contexts — its reopening of the case sends a message to cautious employers that it may be wise to forbid the Gadsden flag in the workplace.
Eugene Volokh, a professor of free speech law at UCLA, warned that this decision could even lead cautious employers to consider banning paraphernalia connected with the Donald Trump campaign.
Even if the employee who wears “Trump/Pence 2016” gear in the workplace never says anything negative about Hispanics or Muslims, another employee might complain that “in context,” such speech conveys a “racially tinged” message. “Say you are an employer facing such a threat. Would you feel pressured by the risk of liability to restrict pro-Trump speech?” Volokh asked.
Employers are not bound by the First Amendment to promote free speech in their workplaces, but the government cannot use its coercive power to threaten employers for allowing political speech.
And if the Gadsden flag is considered suspect because of what it might mean, what about complaints about Hillary Clinton? Many well-known criticisms of her have been considered sexist, so would the EEOC urge further investigation if someone criticizes Clinton — because such statements could be sexist?