By Dan Calabrese ——Bio and Archives--August 5, 2016
American Politics, News | CFP Comments | Reader Friendly | Subscribe | Email Us
On January 8, 2014, Complainant filed a formal complaint in which he alleged that the Agency subjected him to discrimination on the basis of race (African American) and in reprisal for prior EEO activity when, starting in the fall of 2013, a coworker (C1) repeatedly wore a cap to work with an insignia of the Gadsden Flag, which depicts a coiled rattlesnake and the phrase “Don’t Tread on Me.” Complainant stated that he found the cap to be racially offensive to African Americans because the flag was designed by Christopher Gadsden, a “slave trader & owner of slaves.” Complainant also alleged that he complained about the cap to management; however, although management assured him C1 would be told not to wear the cap, C1 continued to come to work wearing the offensive cap. Additionally, Complainant alleged that on September 2, 2013, a coworker took a picture of him on the work room floor without his consent. In a decision dated January 29, 2014, the Agency dismissed Complainant’s complaint on the basis it failed to state a claim . . . . Complainant maintains that the Gadsden Flag is a “historical indicator of white resentment against blacks stemming largely from the Tea Party.” He notes that the Vice President of the International Association of Black Professional Firefighters cited the Gadsden Flag as the equivalent of the Confederate Battle Flag when he successfully had it removed from a New Haven, Connecticut fire department flagpole.
After a thorough review of the record, it is clear that the Gadsden Flag originated in the Revolutionary War in a non-racial context. Moreover, it is clear that the flag and its slogan have been used to express various non-racial sentiments, such as when it is used in the modern Tea Party political movement, guns rights activism, patriotic displays, and by the military. However, whatever the historic origins and meaning of the symbol, it also has since been sometimes interpreted to convey racially-tinged messages in some contexts. For example, in June 2014, assailants with connections to white supremacist groups draped the bodies of two murdered police officers with the Gadsden flag during their Las Vegas, Nevada shooting spree. [Footnote: Shooters in Metro ambush that left five dead spoke of white supremacy and a desire to kill police, Las Vegas Review-Journal, June 8, 2014, available online at: [url=http://www.reviewjournal.com/news/las-vegas/shooters-metro-ambush-left-five-dead-spoke-white-supremacy-and-desire-kill-police.]]http://www.reviewjournal.com/news/las-vegas/shooters-metro-ambush-left-five-dead-spoke-white-supremacy-and-desire-kill-police.][/url] Additionally, in 2014, 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. [Paul Bass, Flag Sparks Fire Department Complaint, New Haven Independent, Feb. 25, 2014, available online at:http://www.newhavenindependent.org/index.php/archives/entry/tea_party_fire_department/.] Certainly, Complainant ascribes racial connotations to the symbol based on observations that it is sometimes displayed in racially-tinged situations. In light of the ambiguity in the current meaning of this symbol, we find that Complainant’s claim must be investigated to determine the specific context in which C1 displayed the symbol in the workplace. In so finding, we are not prejudging the merits of Complainant’s complaint. Instead, we are precluding a procedural dismissal that would deprive us of evidence that would illuminate the meaning conveyed by C1’s display of the symbol.I know that's a long excerpt from the ruling, but I think it's important to show you the bizarre logic the EEOC used to come to the conclusion that employers should put employees under a microscope simply because they choose to wear a cap that expresses a philosophical idea. The effect this will have is to make employers fear lawsuits unless they restrict certain kinds of speech, and Volokh explains exactly what is so insidious about that:
Say someone wears “Trump/Pence 2016” gear in the workplace, or displays a bumper sticker on his car in the work parking lot, or displays such a sign on his cubicle wall, or just says on some occasions that he’s voting for Trump. He doesn’t say any racial or religious slurs about Hispanics or Muslims, and doesn’t even express any anti-Hispanic or anti-Muslim views (though even such views, I think, should be protected by the First Amendment against the threat of government-imposed liability). But in “context,” a coworker complains, such speech conveys a message “tinged” with racial or religious hostility, or is racially or religiously “insensitive.” The coworker threatens to sue. Again, say you are an employer facing such a threat. Would you feel pressured by the risk of liability to restrict the pro-Trump speech? (As before, the question isn’t whether you’d be inclined to do that yourself, whether from opposition to Trump, or a desire to avoid controversy that might harm morale; because the First Amendment doesn’t apply to private employers, private Internet service providers, private churches, private universities, private landlords, or others, they are not constitutionally constrained from restricting speech. The question 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.)
Support Canada Free Press
View Comments
Dan Calabrese’s column is distributed by HermanCain.com, which can be found at HermanCain
Follow all of Dan’s work, including his series of Christian spiritual warfare novels, by liking his page on Facebook.