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?
I find the entire progressive movement and the bureaucratic state it has created to be racially offensive. Now, to borrower a quote from the movie “Trading Places”; “I want a lawyer, Is there a lawyer in the house?”
And Red Irish Setters are not Communists.
Asians are offended by BLM. But lets outlaw the picture of George Washington on the currency. He was a slave owner.
in the canine world, is a dog that has a collar which says “Black Labs Matter” making a racist statement?
bill – of course it is racist. How do you think the golden labs feel?
This ship sadly sailed long ago. Talk about your slippery slopes, whatever happened to “Congress shall make no law abridging…”
Composing a Complaint for the plaintiff here could use some of the following examples:
On or around June 30, 2006 or July 1, 2006, Scott ___, ____, and ___ operating at the direction of Chief Robert ____, went to Plaintiff’s said place of business without Plaintiff’s consent, without Plaintiff’s
presence, without warrant, and without probable cause and unlawfully broke into and entered the
premises, searched the premises, and seized and removed all of Plaintiff’s personal property
therein, including motor vehicles, trailers, tool chests, tools, repair materials, and auto parts, and
locked Plaintiff out of his premises, thus depriving Plaintiff of his property and livelihood
without due process of law and in violation of the Fourth and Fourteenth Amendments to the
United States Constitution.
17.
All of the aforesaid acts were in violation of the Plaintiffs’ rights secured by:
a)
The Fourth Amendment, to be secure in his person, premises, papers,
property, and effects and against intrusions, and to be free from unreasonable search and
seizure and loss of liberty and property, applicable to the States through the Fourteenth
Amendment;
b)
The Fifth Amendment, to be free from compelled statements against
himself and to be free from deprivation of life, liberty or property without due process of
law, applicable to the States through the Fourteenth Amendment;
5
Case: 4:10-cv-00793-CAS Doc. #: 2 Filed: 05/04/10 Page: 6 of 9 PageID #: 32
c)
The Ninth Amendment, to privacy in his premises and personal and family
relationships, applicable to the States through the Fourteenth Amendment; and
d)
The Fourteenth Amendment, to due process of law, equal protection of the
law, and privileges and immunities of the law, including the rights to life, liberty,
property, and privacy.
18.
The aforesaid constitutional rights have been clearly established and well-settled
since the ratification of the United States Constitution in 1789 and the ratification of the
Fourteenth Amendment on July 28, 1868, and are enforceable under 42 U.S.C. § 1983 (Civil
Rights Act of 1871) and under Monroe v. Pape, 365 U.S. 167 (1961).
—-
The above is a search and seizure case but the paragraphs state well the merger of the various amendments and 42 U.S.C.. I would not sue the EEOC. Some of the commentors above note that the EEOC might just be opening the case up for determination, not making a decision. The Article on the blog is a bit lame. But Live Free is a right of privacy declaration and Or Die gives it more meaning. Don’t Tread On Me says stay out of my life. This is a right of privacy declaration and the person here is telling his government to pass laws or respect constitutional rights to preserve privacy. Don’t Tread On Me is sort of like the statements made by Al Sharptongue in his Ferguson messages.
After all of the flags, statues, and names of people who were part of the Confederacy or who owned slaves before the Civil War are expunged, some people, like the holocaust deniers of today, will be denying that slavery ever happened.
“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.”
Any symbol can be interpreted to mean anything. Which means that anyone can now censor speech in the workplace by raising a fuss. Or, symbols mean nothing (because they can be interpreted in any fashion by the viewer) and therefore no one can take offense at anything. Take your pick. (Well, the EEOC will take the option which gives them power.)
Does the offended party reject $1 bills in change? Does he take offense at $20s? Or is it very specific symbols that let him put one over on others?
To Me*,
It’s really a battle of content VS atmosphere of delivery of content.
It seems to ME* that the government is regulating the atmosphere and confusing it with the content.
tolerance is subjective based on one’s perception and feelings and now we see atmosphere of delivery of protected speech nullifying free speech itself.
Suggestions?
*: that means my opinion, please don’t take it as anything other than that.
I will never admit that I am unequivocally right.
KCFleming has it right.
” can hardly remember Pleasantville”
So your example of conservative excesses is a boring liberal movie from the 1990s, made by leftists to denigrate social conservatism and nationalism?
Why not ‘Birth of a Nation’?
Oh yeah, the KKK was started by Democrats.
Someday soon, the good Prof. Turley will accept that the US Constitution is dead, and the America we knew is dead.
This is no longer a constitutional republic, but a liberal fascist (crony capitalist) state.
Steve, Whenever you are haunted by Pleasantville, keep repeating to yourself aloud, “It’s only a movie, only a movie.”
Most of the liberals here avoid these repeated posts on liberal fascism. The truth be a mofo, liberals. But, a few want to kill the messenger.
I have worked on EEOC complaints. The EEOC has a fiefdom and they rule it w/ a heavy hand. We need to start getting serious about preserving free speech. Abolish the EEOC. They have been out of control for decades now.
DECONSTRUCTION-ISM.
The issue is based on someone’s interpretation regardless of the intent of the author or the time in life. IOW my truth is as valid as your truth.
Decon has fully taken over in these like cases and is expanding. It came into its own modern influence with the theologians of the Jesus Seminar. In short, the author’s intent, the audience and the historical culture are not to be considered.
It’s situational ethics on a very individual framework.
@Jill
Is it 4 or 5 people thus far who have died mysterious deaths related to the Clinton DNC machine? Glad to hear Wiki is offering a reward though I doubt anyone will come forward if they want to live! How about Shawn Lucas?
http://wallstreetonparade.com/2016/08/sanders-supporters-stunned-by-sudden-death-of-38-year-shawn-lucas-who-served-the-lawsuit-on-the-dnc-and-wasserman-shultz/
meant to say “don’t KNOCK the Enquirer” – I think faster than I can type
@isaac
Don’t know the Enquirer – helps to pass time when standing in line at the supermarket. Also, remember they broke the story of John Edwards falling into the honey trap. Then again, probably the Clintons planted it.
There is a simple solution to this discrete problem: repeal the enabling legislation which maintains the EEOC and dissolve the agency. Do the same with the entire federal ‘civil rights’ apparat.
tin
My point is, Turley’s tabloid approach in the use of the word liberal. This extreme end of the left may be attached to the left but is no more liberal than those thumpers that would see their child die, because it is god’s will, are conservative. I have not encountered, personally, one of these extremists in a long while. However, Turley tends to link the extreme with the whole side and feeds the us or them dilemma found today in the US. If there was ever a cheap ride it is pandering to the us and them mentality of Americans. I would expect more from him.
Moreover, the EEOC reinstating the ‘claim’ does not mean that the EEOC is taking the side of the idiot that is stating that the flag is racist or not, or whatever. As I understand it, reinstating the claim means that they will make a decision that will perform as a precedent in the future. There will be no laws broken or made here. If there is as I perceive it, a rational position taken by the EEOC, that the flag is just a flag and represents a warning to oppressors and has nothing to do with slavery, unlike the ‘Stars and Bars’ which has everything to do with slavery in spite of the attempts made to glorify it by attaching meanings of these or those rights, then a fine point will have been clarified.
It goes without saying that a society cannot or should not erase everything indirectly connected to the horrors of its past. One should not erase the regimental battle flags of soldiers just because they fought on the losing and therefore wrong side. The German Air Force still uses the Maltese Cross. The ‘Don’t tread on me.’ flag has been around for centuries and carries the same meaning as a tattoo of barbed wire around a tough’s bicep. Those taking it further do not necessarily represent liberals, any more that David Duke represents Republicans. For a more recent and illustrative example, read the papers and watch the Republicans distance themselves from Trump.
Turly’s formatting these articles tend to diminish his blog in the directions of the National Enquirer, a source referenced by Trump as where he gets his facts.