Academia, Bizarre, Constitutional Law, Free Speech, Media, Politics

EEOC Reinstates Case Where Worker Objected To Co-Worker’s Wearing Of Cap With “Don’t Tread On Me” As “Racially Offensive”

Unknown-2My 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.

220px-Christopher_gadsdenThe 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?

127 thoughts on “EEOC Reinstates Case Where Worker Objected To Co-Worker’s Wearing Of Cap With “Don’t Tread On Me” As “Racially Offensive””

  1. “We are the ones we’ve been waiting for. Hillary Clinton is the problem; she is not the solution to Donald Trump. We are the solution. We are the ones we’ve been waiting for. This is our moment. Together, we do have the power to create an America and a world that works for all of us. The power to create that world is not just in our hopes. It’s not just in our dreams. Right here and now, it’s in our hands. We will make this happen together. We are unstoppable. Thank you so much. On we go. Thank you.”

    Jill Stein accepting the Green Party presidential nomination in Houston

  3. @phillyT

    MAYBE Trump will cave, but we KNOW that HRC and the Demoncrats/Repuglicans who are owned by corporate interests will ensure it goes through.

    1. phillyT – Trump owns or has under his brand 550 businesses. He is going to off-shore a lot of stuff. I was reading Elon Musk’s book and he was off shoring much of his stuff at the beginning.

  6. Donald Trump is going to sign the TPP. No doubt about it. It benefits him for all the crap he manufactures overseas, and if there is one thing you can count on a malignant narcissist to do, it’s take care of himself. He will just come back and tell everyone he made the best deal, a YUGE deal, and nobody makes better deals than he does. By the time people realize how badly he screwed them, he will be onto something else.

    It’s how he handles all his subcontractors, it’s how he screwed casino investors. It’s his big plan to screw America. Well, actually he’s going to screw the country in SO many ways, but this will be special because everyone thinks he opposes the TPP.

    Bernie Sanders and Jill Stein actually oppose the TPP, but neither one of them is going to be President.

  7. HRC is the matriarch of a crime family(Pay for play). As far as conspiracies go(vast right wing conspiracy). I don’t care what anybody says, she is wall streets darling. Again Donald Trump is by no means a Washington insider. Neither is Johnson, Sanders and Stein. Most Americans do not like the direction the country is going. A lot of people feel that the only way to change things is to go outside the establishment politicians.

  8. @philat

    HRC said the TPP was the “gold standard” of trade deals. She only came out against it because of Bernie and the Donald and we know she is lying. The DNC would NOT allow it to be part of the platform “out of respect to Obomber”. We do not want this trade deal – written by and for corporations who will destroy us and the environment. Steiners and Trumpster are united on this front.

    I have this “6 degrees of separation” theory regarding HRC and the TPP – have a file and everytime I hear of a Republican or Libertarian say they are endorsing her sure ’nuff there they are. Same was when Bernie was still in the race – EVERY Demoncrat who endorsed HRC voted to give Obama fast track authority.

    This is a war to preserve our freedoms.

  9. philat: Some Republicans are distancing themselves from Trump. He ran an anti-establishment campaign. Why is it shocking that some establishment Republicans are distancing themselves from him? From what I can tell it is mostly foreign policy war mongers and neo-cons who are now aligning themselves with Hillary.

    One thing I have noticed this cycle is that trade unions, a major Democrat constituency, are not attacking Trump. I don’t know if they will endorse him, but they are not attacking him. At least not yet. They went after Romney viciously.

    I don’t know what you mean by Republican appeals to the extreme and “fringe”. I don’t know what policies they support that are designed to appeal to the fringe. Since they need greater than 50% of the vote to win, any policy that appeals to the fringe but alienates others and prevents them from getting a majority seems like a pretty stupid strategy. Republicans currently have the largest majority in the House since the 1920s and control more state legislative seats since then, too. Maybe Democrat polices are the ones that appeal to the fringe?

    Furthermore, Obama was endorsed/supported by both white and black supremacists. Did he “appeal to the extremes or fringes” because they supported/endorsed him? Did the media ask him ad nauseum to disavow their support/endorsement the way they hyperventilated non-stop for days about Duke’s endorsement of Trump? Of course not. I bet 99.9% of the public don’t even know that some white and black supremacists supported Obama because the media refused to push the story. Did Obama explicitly disavow their support, the way Trump disavowed David Duke?

    http://www.esquire.com/news-politics/news/a4719/racists-support-obama-061308/

  10. OK so I did the research, Autumn. Clinton is on the record opposing the TPP in its current form, and if you are going to call her a liar, then you might as well cal out Trump as well because he has been on every side of every issue.

    And the majority support for the TPP comes from Republicans, not Democrats, and there is almost no correlation between those Republicans who support TPP and those who oppose Trump.

    So, about that research…

  11. @philat

    re: “What’s different in this cycle is how many Republicans and conservatives are not only dissing and distancing from Trump, but have actually declared they are voting for Clinton.”
    .
    Do some research – you will find that these Republicans.who are crossing the aisle are for the TPP. It’s not about Trump’s rhetoric

    Trump and Jill Stein are the ONLY candidates against the TPP.

  12. Scott
    It’s no surprise that Democrats and Republican dis each other, that’s been going on since Jefferson and Adams.
    What’s different in this cycle is how many Republicans and conservatives are not only dissing and distancing from Trump, but have actually declared they are voting for Clinton.
    It’s also remarkable that the appeal to the fringe and extremes on the right by the Republicans has finally hit its peak, with full in endorsements of Trump by the KKK and the American Nazi Party.
    That’s what really makes this one different.

  13. The problem the Democrats have with defining Trump as a dangerous nut is that this is the strategy they’ve used against every Republican since Truman. Bar none. Read Truman’s whistlestop speeches. He often compared his opponent, Dewey, to Hitler. And this was in 1946, when the sacrifice Americans had made in blood and treasure to defeat Hitler was fresh on everybody’s mind. Calling someone Hitler was probably the most demagogic act a man could to stir hatred and raw emotion.

    Even the New York Times apparently got sick of Truman’s demagoguery. It chronicled some of his incendiary rhetoric in its Oct. 26, 1948 edition:

    “President Likens Dewey to Hitler as Facists’ Tool,” read the Times headline, followed by the subhead, “Dictatorship Stressed.”

    The Times headline writer continued, “Truman Tells Chicago Audience a Republican Victory Will Threaten U.S. Liberty – Says When Bigots, Profiteers Get Control of Country They Select ‘Front Man’ to Rule.”

    That’s how Truman talked about Dewey – a northeast liberal Republican!

    But nothing compares to how they treated the first conservative to get the nomination after FDR transformed the country from one based on liberty to one based on bureaucratic statism. What they did to Goldwater in 1964 is really unmatched. “In a period of ten months,” wrote Lionel Lokos in his book “Hysteria 1964”, “Barry Goldwater was accused of being another Adolf Hitler, fomenting a racial holocaust, advocating a nuclear policy that would destroy half the world, seeking to destroy Social Security, being a lunatic paving the way for totalitarian government.”

    Sounds an awful lot like the rhetoric Democrats and the media industrial complex use against Trump today, no?

    According to Democrats, every Republican is worse that Hitler. Every four years, we are in jeopardy of losing the republic if a Republican is elected. It’s been the same tired nonsense for 65 years. The problem, of course, is that Democrats invented bureaucratic statism and THAT is what destroyed the republic. It’s already lost. Every Senate Democrat voted to repeal the First Amendment a couple of years ago. The Second Amendment is under constant assault. So are the Fourth and Fifth.

    I am not a Trump supporter/defender. I just think Democrats as a party and ideology have a goal to constantly strengthen the state at the expense of individual liberty and that makes them FAR more evil than Trump.

  15. JR,

    We agree. That’s exactly one of my points above!

    I also agree with others that it’s surrealistic for him to talk about respecting the Constitution at the DNC. I am very sorry for the loss of his child. Still, I cannot understand his reasoning in supporting Clinton or the DNC as a champions of the rule of law.

  16. @Autumn
    The I-know-you-are-but-what-am-I defense has been ruled invalid by the courts. Want to have another go?

    Nick. LOL bro, LOL!!!

  17. “100 times better.” LOL! Even Huma Abedin wouldn’t say, “100 times better.”

  18. Paul Schulte
    The fact that you’re not absolutely terrified by Donal Trump is so telling. He is the worst possible candidate, so thin-skinned, so ignorant, so manipulative. His life story is one giant psych patient profile.

    And there is no evidence that Hillary herself came up with the birther idea, though she allowed it to go forward. If you have some evidence, let’s have it. As I’ve said about a dozen times, she is not by any means the ideal candidate, she’s just 100 times better than any of the others.

  20. I don’t believe John Adams owned slaves…you may want to double check your sources on that one.

    Betsy Ross was from my city, and I have always liked flag designs from that revolutionary era, when our nation formed. I cannot imagine anyone linking racism to the Gadsden flag-sounds like a passive aggressive lawsuit to bully a worker for his hat. (And who cares about a hat anyway…these two must really love each other, hmmm?).

    BTW, a Gadsden flag flies over the oldest ship in the Navy I believe. “Old Ironsides”…last time I saw her it was docked in Boston.

    Are both of these parties paying for their own lawsuit…I cannot imagine spending your own cash on such silliness. Perhaps an example showing how “Loser Pays” would benefit in reducing cases. Ugh.

Comments are closed.