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 claimed cited 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?
I think your work needs line-editing for concision.
1. There are chronic gripers in any workplace
2. There are predatory lawyers who have pecuniary and ideological motives.
3. There are Thomas Perez types who wish to criminalize political dissent. They do so because they view the world as lawyers or as school administrators where there are no free and independent adults, merely subjects in a courtroom and youths managed in loco parentis.
Employment discrimination law is fodder for these types.
This is important:
The Palestinian Journalists’ Forum has denounced Google for deleting the name of Palestine from its maps and replacing it with Israel.
In a statement released yesterday, the forum said Google’s decision to remove Palestine from its maps on 25 July “is part of the Israeli scheme to establish its name as a legitimate state for generations to come and abolish Palestine once and for all.”
“The move is also designed to falsify history, geography as well as the Palestinian people’s right to their homeland, and a failed attempt to tamper with the memory of Palestinians and Arabs as well as the world.”
The forum said the move was “contrary to all international norms and conventions”, stressing that Google should back track on its actions. (see wikileaks)
Sorry to go off topic but this is a real travesty of justice, not to mention orwellian. Further, wikileaks is offering a reward for tips about the murder of a young DNC staffer who many people think is most likely the person responsible for DNC leaks.
Here is the solution for the Live Free Or Die plaintiff. Yes I call him a plaintiff. He needs to sue some people. The first defendant is the EEOC, second is the employer, third and twentieth are all the public officials who might have inhibited his speech.
He is “petitioning the government for redress of grievances’. This is a protected aspect of speech and of human rights specified in the First Amendment.
So class. You sue the ‘state actors’ or the “federal actor” under 42 U.S.C. Section 1983, 1984, 1985 and 1988 and the federal actors under the other relevant statute. You seek damages, declaratory relief, injunctive relief and of course attorney fees. Punitive damages as well. Your claim under the First Amendment is coupled with the Fourteenth Amendment. Add the Ninth Amendment for right of privacy– I can wear what I want where I want, when I want. Unless I am naked. I am not naked and I am not yelling Fire in a crowded theatre. Live Free Or Die is not yelling Fire. Don’t Tread On Me means do not deny me my right to petition my government for redress of grievances. My speech to my state assembly, to my fellow voters and to Donald Trump, is to not screw with my civil rights.
It won’t be long before you will be addressing each other as Comrade, I’m sure our Washington Comrades will approve.
@isaacbasonkavich
You criticize JT for selecting examples of liberal views from the “extreme fringe idiots.” I think you are missing his point. The EEOC is an enormously powerful federal agency which establishes employment laws and regulations that impact all of us. It is not an extreme fringe group. Therefore it is alarming to think that the agency could be moving from a “reasonable person” standard of assessing racist or sexist language or symbols to one based on individual perceptions, no matter how unreasonable or remote.
wow – I find this chilling “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.” How it’s interpreted by others? What’s next – getting rid of the US flag?
And how bout the Cherokee nation flag? The Cherokees owned black slaves who were forced to march with them on the Trail of Tears from North Carolina/Tennessee to Oklahoma. After Emancipation many of the former slaves remained on the reservation because they had grown up as Indians. However, once the Cherokees started making big bucks from their casinos which gives every member a stipend they had a vote and threw out the blacks.
Perhaps we should no longer study the ancient philosophers, because they lived in a time of slavery. Even Socrates defended the enslavement of hostile nations.
Or the African tribes that sold their enemies into slavery…
Or Native American history, since many tribes engaged in slavery, especially that of female captives.
Or European history since it engaged in the slave trade…
Or Ancient Egypt since they were infamous slavers…
Slavery was the most evil institution ever devised. It was ubiquitous in antiquity. It boggles the mind that it persisted so long and pervasively. We fought and ended it, at least here, although it does still exist, ironically in the African continent among other places.
You also cannot judge past historical figures by today’s values. It’s anachronistic and a logic quagmire. You would lose every shred of our past wisdom, because its creator would not possibly have today’s views on equality, LGBT, different religions, the environment…
Liberalism, the new fascism.
Extremism ruins everything it touches, including politics.
The bigger problem here is the reinforcement and continuation of the duality of the American psyche. The us or them routine which Turley repeatedly touts, where he labels the extreme fringe idiots who can’t get their collective heads out of their collective perceptions of what and what is not politically correct as liberals. The vast majority of liberals or Democrats, or more precisely those that can think past us and them, reject these extremes just as the Republicans are starting to reject the other extreme, championed by Donald Trump.
The failure of American politics, government, and democracy can be sourced to this us or them routine where some shill points out an event which represents the extreme left or right and then paints the whole half side with the same brush. Turley excels at this easter egg hunt, continually ferreting out examples of the fringe, linking them to the essence of America, and then to ‘liberals’.
Turley’s failure to separate the extreme elements and aberrations from the perceptions of over half of America illustrates a much greater problem than the one he continuously reports. I suppose it is an attempt to be ‘first’ and unique in one’s discoveries. Doing the same with the conservatives, right wing, Republicans is like finding something before you look for it, something that is as obvious as the nose on your face, something that even the rational conservatives are finding repugnant.
This is the same tabloid mentality that follows the rare cases of police brutality to the point of including ordinary to unavoidable events. When you are hiking around the country, Turley, do some thinking.
As a historical FYI, John Adams never owned slaves.
This is the fundamental problem with harassment law generally. A broad definition, such as anything that offends a member of a protected group, is ultimately no definition at all. Professor Turley, by all means let’s have the debate. If the free speech side loses, then we essentially have created the end of all debate. Then we will speak only with like minded people as the one remaining safe means to avoid breaking the law. This type of sorting is already taking place and will accelerate if the EEOC continues this nonsense. Will will have created a sterile, lifeless society.
This is ridiculous, and I don’t see any validity to the EEOC’s position. People need to buck up a bit. This is precisely the kind of incursion on free speech that has lead to the rise of Trump. People are sick of walking on eggshells in the name of political correctness. What happened to common sense?
“This is precisely the kind of incursion on free speech that has lead to the rise of Trump.”
You are kidding us, right?
Wearing it at work is wrong, I wouldn’t want to see stars and bars at work either….
oops, should read without the “not only”.
The concern over racism exhibits itself as racist.
There is no outcry over the rhetoric or actions of Black Panthers, Black Liberation Theology, Black Lives Matter etc.
No complaint is made regarding Miss Black America, the United Negro College Fund, NAACP, etc.
Hate is recognized only when it fits the narrative of those who profit from it.
Why should there be any “outcry” over someone holding an opinion? (racism)
This much to do about nothing, is just another government fueled red herring meant to divide us.
What a long sorry road we have traversed. That flag was used by anti-war demonstrators and Vietnam Veterans Against the War in the fight against big brother, COINTELPRO and tricky dicky nixon. In fact it flew in my friend and bothers yard until not only he was killed by Agent Orange and his wife died I never thought once about the designer or any racism. We both worked with the Black Panthers and the Brown Berets.
I do see that flag, unfortunately, being used by the right wingnuts at their little hissy fit demonstrations. What a shame. A flag that literally meant what it said has been co-opted by the right wing racists.
Apparently, we’re supposed to believe we’re now living in an era in which only “liberals” chill speech. I can hardly remember Pleasantville, where nary a word was spoken for fear that it would offend the Almighty or harm one’s career to argue against what one perceives as injustice.
The capand/or flag whether “Don’t Tread On Me” or “Black Lives Matter” or even “Secede” is speech just like the anti-war speech by students wearing tee-shirts or black arm bands in the Viet Nam War protests. So it is protected from government sanction.
I think the EEOC is nuts and is just making work for itself. It is cutting out a new niche area of complaints. The Non-complaint Complaint. This will allow the EEOC to intrude and monitor the business until is files bankruptcy.
Not to mention that the EEOC is a criminal ( i.e. unconstitutional ) organization that should be disbanded.
Racism is just an opinion and everyone is entitled to have one. GET OVER IT!