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?
The first legally recognized slave owner in America was a Black man. He sued to legally establish slavery. He also owned White slaves as well.
Never hear about Anthony Johnson in Black History Month do you
Id like to show some facts that the Left loves to forget ever happened. Ill post just a small part of the article.
http://americancivilwar.com/authors/black_slaveowners.htm
DIXIE’S CENSORED SUBJECT
BLACK SLAVEOWNERS
By Robert M. Grooms
In an 1856 letter to his wife Mary Custis Lee, Robert E. Lee called slavery “a moral and political evil.” Yet he concluded that black slaves were immeasurably better off here than in Africa, morally, socially and physically.
The fact is large numbers of free Negroes owned black slaves; in fact, in numbers disproportionate to their representation in society at large. In 1860 only a small minority of whites owned slaves. According to the U.S. census report for that last year before the Civil War, there were nearly 27 million whites in the country. Some eight million of them lived in the slaveholding states.
The census also determined that there were fewer than 385,000 individuals who owned slaves (1). Even if all slaveholders had been white, that would amount to only 1.4 percent of whites in the country (or 4.8 percent of southern whites owning one or more slaves).
In the rare instances when the ownership of slaves by free Negroes is acknowledged in the history books, justification centers on the claim that black slave masters were simply individuals who purchased the freedom of a spouse or child from a white slaveholder and had been unable to legally manumit them. Although this did indeed happen at times, it is a misrepresentation of the majority of instances, one which is debunked by records of the period on blacks who owned slaves. These include individuals such as Justus Angel and Mistress L. Horry, of Colleton District, South Carolina, who each owned 84 slaves in 1830. In fact, in 1830 a fourth of the free Negro slave masters in South Carolina owned 10 or more slaves; eight owning 30 or more (2).
According to federal census reports, on June 1, 1860 there were nearly 4.5 million Negroes in the United States, with fewer than four million of them living in the southern slaveholding states. Of the blacks residing in the South, 261,988 were not slaves. Of this number, 10,689 lived in New Orleans. The country’s leading African American historian, Duke University professor John Hope Franklin, records that in New Orleans over 3,000 free Negroes owned slaves, or 28 percent of the free Negroes in that city.
To return to the census figures quoted above, this 28 percent is certainly impressive when compared to less than 1.4 percent of all ……..
So it looks like Seth Rich was the leak of the DNC emails to Wikileaks who btw just offered a reward for his killers. But people are afraid of Trump…….Riiiiight.
“I don’t like it” is no basis for public policy in any setting whether it be the EEOC trying to determine whether some form of harassment is taking place or any other government venue, tribunal or body. The idea that because someone has a very unusual reaction to the Gadsden Flag drilling down several layers to say that because Gadsden owned slaves the symbol is offensive crosses the line of reasonable complaint to extremist claim upon which there is no basis whatsoever. No historian or even history student considers the Gadsden Flag in any way connected to slavery or racism. Right wingers have recently made the flag popular again but that is beside the point. Intent has to be a factor in such cases or else there is no limit to what anyone could claim they found offensive and creating a hostile working environment.
Simple solution — Take off hat when going inside.
just a taste,
reprinted without permission
From pg 7:
“There is no such thing” wrote Hitler, “as the state as an end in itself”. As he clarified, “the highest goal of human beings” was not “the preservation of any given state or government, but the preservation of their kind”.
Black Earth, Timothy Synder
Tim Duggan Books, ISBN-10: 1101903457
Olly, book suggestion for you.
I think you would love this.
I mean that in the most of sincere terms.
RPC
“Black Earth”
Timothy Synder
Regarding the death of Shawn Lucas….
You know the guy was the process server, right?
Next question…
You know what a process server does, right?
What a bunch of morons!
Sidney – I’ll bite. Exactly what does a process server do?
@phillyT
re: “someone with sever narcissistic personality disorder, ZERO judgement, and no self control”
That would describe HRC
@Autumn,
We’ve been round this before, but if you want to keep dancing the same dance, then rave on.
Jill Stein is a conspiracy nut, an anti-vaxxer and a tin-foil hat loon who thinks wi-fi is messing with her brain. She stands for a lot of what I stand for, but a vote for her is a vote for Trump, who is by any standard, someone with sever narcissistic personality disorder, ZERO judgement, and no self control. He simply does not have the temperament to hold public office, and I’m talking dog-catcher, school board member, or county board, much less the Presidency. His ghost writer says he even lies about things he says he has lied about. No candidate from either party has had this many of his own party repudiate him. Olympia Snowe for cryin’ out loud!
I voted for Nader when I lived in NY State in 2000, because I knew the state was going to Gore.
I’m not a fan of Hillary, I supported Bernie all the way. but she is SOOOOO much better than Stein or Trump.
phillyT – no one is more of a conspiracy nut than Hillary. She was the original ‘birther’ and the original ‘Right Wing Conspiracy. She is just plain paranoid.
Lot’s of great comments from women on this thread. Kudos to all.
@JR
I guess my question would be, given that Mr. Kahn had a successful bizness helping rich Ayrabs to obtain green cards, who many have most likely donated heavily to the Clinton Foundation, and has written about Sharia law — why is carrying around the Constitution in his pocket>
The facts and opinions expressed in this article and related comments serves to remind me that the human society is an insane asylum run by the inmates. A person wears a hat which has a symbol and words that historically have been considered statements about preserving freedom. Another person, who obviously has a racist agenda, sees this hat on the first person in their shared workplace and claims this hat is making a racist statement which offends her/him. This person then complains to an agency of the federal government, creating a legal problem for the employer of both the individuals, elevating the situation to one that could have significant financial effects on the employer, and ultimately the company’s ability to provide jobs for both the hat-wearing employee and the complaining employee. When patients in a mental hospital exhibit unruly behavior and make an issue out of something imaginary or irrelevant, they get the honor of wearing a straight-jacket to bed. Similar events outside such a place today will cause people to stop everything and “have a discussion” over the merits of the insane behavior and the lunatic beliefs. Really? Since calling for a straight-jacket for the selfish, whining complainer with an agenda is probably not going to fix the problem, I would suggest ignoring this type of person and doing something rational and productive instead. Unfortunately, it appears the world is going in the opposite direction.
@ Jill,
I’m willing to bet that Mr. Kahn’s copy of the constitution includes the 13th, 14th and 15th amendments, so it doesn’t support slavery, abridgement of rights or denial of the right to vote. I know my copy does. That the 14th and 15th amendments were unevenly/poorly enforced is no fault of the constitution itself, as properly amended.
They wouldn’t know radical if it bit them in the arse! Just sayin…. 😉
@jill
re: “Many Israelis want peace with th Palestinians and many Palestinians want peace with Israel. There was the idea of a two state solution to bring peace. One of those states was a Palestinian state.”
Exactly, most Israelis just want what we all do – a safe environment in which to bring up their children, to have peaceful communities. It is the Zionist faction that is the problem.
Karen,
I didn’t fail to mention anything. I let the article speak for itself. You got your information from reading the link I provided in full, not part!
In removing Palestine from the map of the world, Google is removing an entire people from being a real, living presence in the world. Many Israelis want peace with th Palestinians and many Palestinians want peace with Israel. There was the idea of a two state solution to bring peace. One of those states was a Palestinian state. Google should not erase other people, like this young girl, from the conscience of the world by pretending she and other like her do not have their own homeland.
@karenS
Thanks for the link. Are you familiar with Miko Peled – commonly known as the general’s son? Dude is fully in favor of the BDS movement to rein in Israel’s expansion and killings of Palestinians.
https://mikopeled.com/
“Apparently, we’re supposed to believe we’re now living in an era in which only “liberals” chill speech.”
You are right, Steve. Liberals are getting a lot of press right now when they do it. But, Liberals would be the wrong term. There are fascists of all stripes. The Language Police are running amuck.
@phillyT
what are you smoking? HRC is NOT going to be the POTUS. Trumpsters are kicking it and we Progressives are actively canvassing for Jill Stein so next (s)election we will have another party. Unless she rigs it it ain’t happening. We Progressives are not afraid of Trump presidency. I think Tim Black speaks for millions of us: