Freedom of speech in the workplace is at issue as the Equal Employment Opportunity Commission seeks to sift through claims brought by federal workers claiming “hostile work environment” harassment at federal agencies. In a complaint filed by a federal employee on January 8, 2014, alleged that a fellow federal worker had discriminated against him on the basis of race. The complainant also claimed that he had been subjected to a reprisal for previous EEOC claims.
The complainant (known only as Shelton D.) said that as of the fall of 2013, a coworker frequently wore a cap in the workplace that displayed the famous Gadsden Flag, which depicts a coiled rattlesnake and the motto “Don’t tread on me.” The flag is beloved by patriotic groups, reenactors, the military and others.
According to the complaint, the cap is racially offensive to black Americans because it was designed by Christopher Gadsden, who was described as a “slave trader & owner of slaves.” After management told the complainant that the coworker had been told to refrain from wearing the cap, the coworker continued to work while wearing the cap. The complaint ensued.
In the complaint, the Gadsden Flag is described as a “historical indicator of white resentment against blacks stemming largely from the Tea Party.” As evidence, the complainant said that the Vice President of the International Association of Black Professional Firefighters removed the Gadsden Flag from the fire department flagpole in New Haven, Connecticut, having cited it as the racist equivalent of the Confederate battle flag. There was no evidence presented that suggested that the wearer of the cap had used racist expressions or did anything racist to the complainant.
The EEOC conducted a review of the historical background of the Gadsden Flag and found that it has its origins in the Revolutionary War and has no racial context. The flag has been used to express various movements and sentiments, such as the Tea Party or the military. Ultimately, however, the EEOC concluded, “Whatever historic origins and meaning of the symbol, it also has since been sometimes interpreted to convey racially-tinged messages in some contexts.” the EEOC report states.
According to Eugene Volokh
of the UCLA School of Law, the complaint’s sole objection “was apparently just to the wearing of the flag, and the ideology that he thinks has become associated with the flag.”
Volokh wrote that this is not a case about restrictions that employers, both private and governmental, may impose on workers as to what they wear on the job. “Instead, this is a case about the rules that all employers, public or private, must follow, on pain of massive legal liability. The harassment law rules… are imposed by the government acting as sovereign — the area where the First Amendment should provide the most protection — not just the government acting as employer.”
The claim that the EEOC is taking up, therefore, is that the cap in a social or workplace context is somehow conveying a racially offensive message. Volokh expresses concerns that the EEOC is verging on restricting speech guaranteed by the First Amendment. “An employee comes to you, complaining that a coworker’s wearing a ‘Don’t Tread on Me’ cap…or ‘Stop Illegal Immigration’ sign on the coworker’s cubicle wall — constitutes legally actionable “hostile environment harassment,” in violation of federal employment law. The employee claims that in ‘the specific context’ (perhaps based on what has been in the news, or based on what other employees have been saying in lunchroom conversations), this speech is ‘racially tinged’ or “racially insensitive.”
Private employers may ultimately feel compelled, out of fear of facing civil penalties and lawsuits, to conform to government-issued standards for speech in the workplace. As Volokh points out to private employers, and even to those who are not concerned about the possibility of liability, “…the question isn’t what you may do as a matter of your own judgment about how you would control a private workplace; the question is whether the government is pressuring you to suppress speech that conveys certain viewpoints.”
At issue, during the current presidential campaign, is whether employees who sport “Trump/Pence 2016” gear or display Trump bumper stickers and signs, for example, may see restrictions placed on his freedom of expression. If a coworker complains that such messages are “tinged” with racist or sectarian ideology and threatens to sue, “the question,” wrote Volokh, “is whether you would feel pressured by the government to impose such restrictions, through the threat of being forced to pay money in a civil lawsuit if you don’t impose them — and whether the government should be able to pressure such private organizations or individuals to restrict speech this way.”
Employers are likely to come down on speech that expresses viewpoints that may “trigger harassment claims,” wrote Volokh, including speech advocating candidates who favor building a border wall and restricting immigration from Muslim countries. “Workplace harassment law has become a content-based, viewpoint-based speech restriction, including on core political speech.” He added that conclusion is a “pretty serious First Amendment problem, I think…”