My friend Professor Eugene Volokh raised an interesting case out of the Equal Employment Opportunity Commission (EEOC) where the commission reinstated what many would consider a facially invalid harassment lawsuit over a worker wearing a simple “Don’t Tread on Me” cap. The cap was depicted as “racially offensive to African Americans” because “the flag was designed by Christopher Gadsden, a ‘slave trader & owner of slaves.’” It is a bizarre case but the concern over the fluid standard for such cases was magnified by a response to Gene from Harvard Law professor Noah Feldman who added that a worker “Saying at work that ‘Hillary Clinton shouldn’t be president because women shouldn’t work full-time’” could also be a legitimate basis for sanctions.

The original case involved a complaint from a worker that a co-worker wore the ubiquitous cap with the symbol from the American revolution. Few people even know that Christopher Gadsden (right) was the designer of the flag, let alone his views of or involvement with slavery. The flag is a historic symbol that was valued in its own right. Framers with slaves included Charles Carroll, John Adams, Samuel Chase, John Hancock, Benjamin Franklin, Patrick Henry, John Jay, Thomas Jefferson James Madison, Benjamin Rush, George Washington, and others. Franklin gave us a host of inventions and works from bifocals to lightning rods to his almanac. Madison gave us the Constitution. Would a cap with Franklin’s almanac symbol constitute racism or how about Patrick Henry’s statement “”Give me liberty, or give me death!”?

One can understand why the employer rejected the complaint, but the EEOC ordered the complaint reinstated. The EEOC wrote that “whatever the historic origins and meaning of the symbol, it also has since been sometimes interpreted to convey racially tinged messages in some contexts.” Of course, any symbol can be used for multiple purposes or different cause. Yet, the EEOC noted that one of “assailants with connections to white supremacist groups drap[ing] the bodies of two murdered police officers with the Gadsden flag during their Las Vegas, Nevada shooting spree” and “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.” Does that mean that the American flag could be deemed racist if white supremacists used it in a notorious crime?

The important thing in this case is that there was no reference to the cap-wearing employee saying or doing anything racist . . . beyond wearing a historic symbol on his cap. I can understand the frustration of employers in scratching their heads in trying to figure out how to enforce such a standard. This concern was heightened by the writing of Harvard law professor and Bloomberg View columnist Noah Feldman. Noah makes an important point that you cannot categorically exclude categories of speech without considering their context. While admitting that the case had troubling elements for free speech, Feldman stressed:

The problem with this argument is that it proves too much. Any form of prohibited workplace harassment, whether based on race or sex, can be mixed with a political message. If someone says in the workplace that Hillary Clinton shouldn’t be president because women shouldn’t work full-time, that’s a political statement. Yet it could also be part of the pattern of sex discrimination in a hostile work environment.

I understand Noah’s point and his objections do put the free speech issue in sharp relief. Moreover, I have spoken at events with both Noah and Gene and have a great deal of respect for both academics. However, Noah shows the slippery slope that we have previously discussed where speech deemed offensive is being subject to an ever-expanding range of investigations and sanctions. Liberals appear to have increasingly fallen out of love with free speech, which is now deemed a danger to society when it protects objectionable speech. We have previously discussed this erosion of free speech in the West. One can easily see how some might view a Trump or Minute Men cap as racist. One could also see white workers objecting to a Black Lives Matter hat. The question becomes even more precarious when a statement about Clinton and women in politics can be workplace harassment. Such a view would require employers to crackdown on certain political views or statements. What about statements that seem sexist to other workers, a point raised by Gene:

And of course people have argued that a vast range of criticisms of Hillary Clinton are sexist: That “She doesn’t connect. She isn’t likable. She doesn’t inspire. She seems shrill. ‘She shouts.’” That she wears a $12,000 jacket. That her success is due to her marriage to Bill Clinton. That she is “polarizing, calculating, disingenuous, insincere, ambitious, inevitable, entitled, over confident,” or “secretive.” The list could go on.

The EEOC has put such issues in the forefront and they deserve serious debate. The EEOC suggests that it is no longer determinative whether a symbol is intended as racist or even objectively racist but how the symbol is interpreted by others. This could exponentially expand the range of sanctionable speech and hostile workplace conditions.  This case is particularly troubling since the Gadsden flag is also the symbol for the Tea Party, which many liberals accuse of being intolerant or even racist in opposing undocumented workers and other policies.  Even the slogan “Make America Great Again” has been denounced as offensive to hispanics or racist. Conversely, some white power advocates have objected to the term “racist” as . . . well . . . racist against white natioanlists.

The question is what rights will be lost between the workplace and the public forum in terms of the expression of values or political views. That line will determine not just the ability but (according to the EEOC) obligation to regulate speech. Workers are generally allowed to discuss contemporary events or politics at work, particularly in lunchrooms and around water coolers. The EEOC is now suggesting that even neutral and historical symbols can be violations based on their connections to slave owners or historic figures. Feldman suggests that statements on candidates or causes that are deemed as reflecting sexist or racist assumptions can violate federal law. Many employers may take the position that it is impossible to protect against such claims and that the only way to protect the company from liability is to ban any political statements anywhere in the business or require all workers to wear uniforms. Of course, that still leaves workers wearing caps and teeshirts to work before they change into their uniforms. There is also the issue of bumper stickers on cars in the parking lot.

There are good arguments to be made on both sides as reflected by Gene and Noah. The most important outgrowth of this controversy should be to have this debate. There is a preference by some to avoid such a discussion and to just drift toward greater and greater speech regulation in the name of equality. That is what is happening on our college and university campuses with devastating impacts on free speech and academic freedom.

What do you think?