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?
@Autumn
Holy buckets.
“Did John Adams own slaves? No, and not only because of his family’s moderate wealth. Adams was morally opposed to slavery and refused to employ slaves. His wife, Abigail Adams, went so far as to employ free blacks for labor as opposed to the two domestic slaves owned by her father. She also helped educate a young African American man in an evening school and their own family home while living in Philadelphia in 1791.”
http://johnadamsinfo.com/john-adams-and-slavery/89/
Echoing a previous poster’s FYI
@Olly
re: “I find the entire progressive movement and the bureaucratic state it has created to be racially offensive”
Please educate yourself and learn to differentiate between the liberal and the progressive movement. The libtards are all about HRC/DNC. Progressives are not. We deal with issues and use facts to make our arguments.
If you wanna learn about Progressives check out TimBlackTV.com or LTMB
The pendulum swings and gets batted around and then swings back. Take SCOTUS for example. After Hillary wins the presidency, she will nominate a liberal justice and all the ridiculous legislating from the bench that was carried on by Scalia, Thomas and Alito, will start getting undone. Citizens United, Heller, Hobby Lobby, Voting Rights. Just to name a few.
This too shall pass. The EEOC will either get it right, or it will get adjusted. Just like SCOTUS. Just like the Senate, which will go back to the Democrats in the fall.
Chill, people.
phillyT – your vision for America puts a knot in my stomach. There is no way I can chill.
@kcfleming
You have probably already seen this but I’m gonna post it. Sent to me earlier by my Papa – a Bernieorbuster who is worried about the future of this country:
http://awarenessact.com/how-to-get-kicked-off-fox-news-in-5-minutes-video/
http://www.haaretz.com/israel-news/.premium-1.735220
“Lawyers for the two said the border policemen were trying to protect the girl rather than harming her, explaining that what appeared in the video as cruel behavior on the policemen’s part was actually an effort to protect her by preventing her from crossing through an area that was off limits. Unable to communicate with her in Arabic, they took away her bicycle to prevent her from risking crossing into the Jewish neighborhood, lawyers Oron Schwartz and Yogev Narkis said.
When it became clear that she understood that she shouldn’t cross through the Jewish Quarter, they allowed her to come back and retrieve her bicycle, the lawyers added. The lesson from the incident is that police conduct cannot be judged solely based on video footage without considering the policemen’s own account, Schwartz and Narkis insisted.”
I have no idea based on the limited information we know if their excuse holds water.
Regardless, it seems like a good idea to require that border patrol officers speak Arabic, or have at least one who speaks Arabic on each team.
Jill:
You neglected to mention that the Israeli border patrol officer was suspended, and this is under investigation. He was working in an area infamous for Palestinian terrorism. If you find yourself taking bikes from kids and putting it in bushes nearby, it might be time for a break. I haven’t heard why he though it was such a big deal if she was riding her bike. He didn’t confiscate it, and he didn’t break it. He left it like 20 feet away in the bushes. It seems like bullying a little kid.
Does that justify all the knife attacks that have happened in that area? No. Does it warrant an investigation? Absolutely.
Nice website Paul! At least for the time-being I think our pets can escape the diminutive and fruitless exercise of racial connotation. Maybe the offended just watch too much TV or something.
I tell you what Roscoe, it’s quite liberating not having to support my opinions with facts. Add to that the endless list of things I can claim I’m offended by and I’m guaranteed to never be wrong. I can see how this could be addictive. I’m evolving…I can feel it.
“Athletic apparel company Nike uses the image of a rattlesnake coiled around a soccer ball for an ongoing, patriotic “Don’t Tread on Me” campaign in support of the United States men’s national soccer team. The phrase has become a rallying cry for American soccer fans and the Gadsden flag can occasionally be seen at national team games. A representation of the rattlesnake is contained on the inside of their uniforms, over the heart, with the initials “D.T.O.M.”, which were used in the 2010 World Cup.[18]” (wikipedia)
Looking this up in the wikipedia, I found the origins of this flag and its many meanings truly interesting. Many things in this nation have been created by sexist, racist, classist bas&*$%ds. The Constitution is indeed one of those things (as mentioned above) and there’s no getting out of that reality.
However, how we understand many of these things today has changed since their origin. For example when Mr. Kahn held up a copy of the Constitution at the DNC, I’m willing to guess that very few people thought he was advocating a return to slave holding even though the document he was waving around was indeed written by slave holders who denied black men as well as women of any color, and people who were poor the rights latterly guaranteed in this document.
Since I am not at this workplace, I cannot speak with any certainty about the coworker’s wearing of the cap. However, I am wondering if there could have been a less confrontational way of dealing with the hat. Was the cap itself worthy of an EEOC complaint? The Gadsden flag has many meanings. Unless the wearer was being racist in his interactions, why assume that it means the coworker is a racist? Maybe before filling a complaint, an attempt to get to know the hat wearer would have been a good course of action. It could prevent a lot of turmoil in that workplace. Not everything needs to start as a lawsuit or some kind of formal complaint. Perhaps just an invitation to lunch might have been an effective solution.
It seems that, as a people, we are losing our ability to actually talk with each other. We need to get that ability back and get it back fast because there is a lot of work to do in our nation and whether we like it or not, the people that we need to work with may not be the same as we are.
Autumn,
Wikileaks is doing a good thing by asking for real information.
Karen,
http://www.independent.co.uk/news/world/middle-east/video-israeli-police-officer-crying-eight-year-old-palestinian-girls-bicycle-bushes-hebron-west-bank-a7169451.html
And what makes Golden Retrievers so special? Why not use another emotional color description to identify them? I had been in a racial dilemma for years. I had two cats that were both black and white. The male was a tuxedo, and the female looked like a holstein cow. Always a source of unrest at my house. And they were brother and sister. Neverending conflict.
slohrss29 – you have to take the naming up with the breed people. And you could learn to live with it. 🙂
I call out your closet liberal fanaticism Paul, come on now, call them Labs what they are–they be Yellow Labs, not Golden! Next, are they being racially slighted as being cowardly or asiatic labs??? Just go with whatever one upsets you more.
Thanks for the note Jill.
slohrss29
http://www.akc.org/dog-breeds/golden-retriever
Officially a Golden Retriever.
Bureaus and bureaucrats are the biggest threats to our constitutional freedoms. These people in these bureaus pass rules and regulations that are the equivalent of laws. I don’t think the people who founded this country thought we would evolve into this. I know we complain about congress at times being a bunch of do nothings. But bureaucrats simply making edicts. Unelected people making laws for us to live by doesn’t seem like a republican form of democracy. These people were appointed not elected. Our form of government was supposed to be safe not fast.
Olly, Sincerely, if that is your reply, in all of your capable vigor and capacity I take your being slighted as a compliment.
KC Flemming,
Will you please stop equating political movements from the 1850s with our current paradigm?
Tagging the Democrats with the KKK is like tagging the Republicans with Strom Thurmond.
Remember he was originally a Democrat? aThen he found Jesus, excuse me, The Republican party.
Your arguments are quite gelaintously feeble.
Oh my. I’m offended by your comments Roscoe and I will add you to my complaint, which by the way does not require actual proof.
Darren’s post is spot on. I’ve decided to appropriate one of his frequent truisms as an important life lesson: “Don’t get involved in stupid stuff.” I think that applies to most of the things people argue and fight over, as well as get fired over.
OLLY, please give examples of the progressive state that has dislodged leaders of sovereign nations and established nation states.
The idea that somehow the Right and the pseudo Conservative movement has spent its energies fighting the Left at home for the valor of the Federalist in all of us, versus fighting dictatorships that at one time they actually supported and then eventually dislodging 100s of thousands of innocent civilians thru the tactics of unconstitutionally declared and covert wars to remove those exact dictators they supported, is some how to be ignored is frankly Horse Sh%$!
The war on social issues is a ruse to cover for the Right’s incessant conviction to defeating economic entities that threaten Capitalism and the satiability of the investor class.
Jill – Palestine was not a country, but rather a region. Its name is based on the extinct seafaring Aegean (as in related to Greek) Philistines. The area was so named by the Romans because they warred with the Jews and wanted to delete Jewish location names. In Roman times, Jerusalem was destroyed and Jews forbidden to enter, except for a single day a year to weep at a wall by a temple. Since Jews were barred, the area became predominantly Christian until the Muslim Expansion killed or converted everyone in the ME. The region of Palestine was most recently held under the Ottoman Empire. People who now call themselves “Palestinians” are actually Arabs, many of which arrived to take advantage of the jobs to build under the British Mandate to create a Jewish homeland. According to the records of the Ottoman Empire, the area now known as Israel was sparsely populated.
It was actually the British who officially named the region “Palestine” as part of the British Mandate after WWI. (You know how they just loved to rename things and re-order borders with the clever use of flags.) This area referred to what is now Jordan and Israel. Under the Ottoman Empire, it was referred to as Southern Syria.
The Muslim part of Palestinian is the much larger Jordan. The rest went to teeny, tiny Israel.
It’s curious that so many people think that only Muslims should rule the area, including the homeland of the Jews which has been its cultural and spiritual center for thousands of years before Islam was a glimmer of an idea.
Israel was also an answer to the Jewish diaspora. You are to recall that Jews were persecuted pretty much globally, with the ultimate travesty being the Holocaust. They had to pay special taxes (or protection money) to be allowed to exist in very small numbers in many Muslim countries. Saudi Arabia does not allow a single Jew to set foot within its borders.
Currently, there have been similar proposals for a Kurdish homeland to try to redress the pretty universal scheme in the ME to wipe them out. The Kurds are treated like vermin in many areas.
I wonder if a Kurdish homeland would spawn similar angst, or if it’s just protecting the Jewish homeland.
Personally, I believe that it’s fair for Muslims to have Mecca and Medina (which they took from the Jews through carnage), and for Jewish people to have Israel.
Israel is the only nation with Western values in the ME. They have the most Arab schools, women have equal rights, drive, vote, etc. LGBT have rights. It’s a nation of people, so obviously they still have crime just like anywhere else. But there is absolutely no comparison to the treatment and rights of women in Israel compared with their neighbors.
If we got rid of Israel and gave it back to the Arabs, it would become just like everywhere else in the ME where human rights are flouted under Sharia Law.
The left needs to stop using the “racist” canard as evidence to counter whatever they find objectionable. Those who do are quickly losing their credibility. The careless utilization of the topic of racism will eventually weaken advocating cases of actual racism in the same manner that overuse of particularly strong words only serves to erode the meaning–an example being the word “awesome” that through overuse is applied to such trivialities as “being slightly better than before.”
The Gadsden flag is a historic flag and yes it can have different meanings to different groups. But this round-robin way of summoning the notion of racism, from the designer having slaves, or it being flown by members of the Tea Party who someone believes is racist because they use certain words or is subscribed to be mostly a white demographic. The point is anybody can declare anything to be racist if they spin and morph it sufficiently to appear that way.
Having been an employer myself, this type of drama is a waste of my time and resources of the company. People just need to come to work, do their jobs well, get paid, and go home. An employee who gets tied in a knot over something as irrelevant as this doesn’t in my view possess the fortitude to be reliable at work.
Furthermore those turning to social media to put as much of their lives online should know that those who display a propensity to be so hypersensitive to matter such as what kind of hat someone wears are going to make themselves toxic to prospective employers who again do not want the drama in the workplace.
The EEOCs position in my opinion is baseless. I am curious as to how they would apply such a ruling in a factory that made such hats.