On 3 August 2016, Washington Post legal analyst Eugene Volokh published an article about an Equal Opportunity Employment Commission (EEOC) decision that reportedly found in favor of an employee who filed a complaint about a co-worker’s fondness for wearing caps bearing a representation of the Gadsden Flag (known better by the legend “Don’t Tread On Me”).
Structured as a legal expert’s opinion, the article evaluated the nature of decision without all the underlying details of the EEOC’s ruling (which are not yet available):
The Equal Employment Opportunity Commission, among its other functions, decides “hostile work environment” harassment claims brought against federal agencies. In doing so, it applies the same legal rules that courts apply to private employers, and that the EEOC follows in deciding whether to sue private employers. The EEOC has already ruled that coworkers’ wearing Confederate flag T-shirts can be punishable harassment (a decision that I think is incorrect); and, unsurprisingly, this is extending to other political speech as well.
Volokh also reproduced a portion of EEOC decision:
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 … 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 … 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.
From the small amount of information available it was difficult to determine from a non-legal perspective whether any specific decision was reached at all, much less one “banning” the Gadsden flag from the workplace. Volokh stated that he was unable to view the source material in full because EEOC proceedings in this case are confidential:
Nothing in the opinion suggests that the cap wearer said anything racist to Shelton D.; I’ve read many such EEOC decisions, and they generally list all the significant allegations of harassment. (I can’t access the specific complaint in the case, because all that information is kept secret in EEOC proceedings.)
Volokh raised a number of compelling questions about the implications of such a ruling in his analysis, but the information available didn’t confirm that the Gadsden flag (or its “Don’t Tread On Me” legend) had been banned from any workplace (much less every workplace).
An EEOC representative whom we contacted for more information told us, among other things, that the decision only dealt with whether the referenced complaint should be investigated or dismissed and did not make any determination that discrimination had actually occurred or that the Gadsden flag was a “racist symbol:
· This decision addressed only the procedural issue of whether the complainant’s allegations of discrimination should be dismissed or investigated.
· Given the procedural nature of this appeal and the fact that no investigative record or evidence had been developed yet, it would have been premature and inappropriate for the EEOC to determine, one way or the other, the merits of the agency’s argument that the Gadsden Flag and its slogan do not have any racial connotations whatsoever.
· The EEOC’s decision simply ordered the agency to investigate the allegations. The EEOC’s decision made no factual or legal determination on whether discrimination actually occurred.
The Commission did not find that the Gadsden Flag in fact is a racist symbol. Rather, the Commission found only that the complaint met the legal standard to state a claim under Title VII, and therefore should have been investigated by the agency rather than dismissed.
In other words, a Postal Service employee (not someone in the private sector) complained of racial harassment and retaliation. One of the elements of his complaint was that a co-worker wore a cap with the Gasden flag, which he found harassing.
The Postal Service dismissed the claim without an investigation or hearing. This was appealed to the EEOC.
The EEOC ruled that it could not make a decision whether harassment occurred given the total lack of facts.
Most emphatically, the EEOC made no determination as to whether wearing the Gasden flag alone constituted harassment. The matter was sent back to the Postal Service for investigation and an hearing, to result in a final agency decision on the merits.
Let me also clear up some incorrect assertions floating around about confidentiality. Just like in the private sector, complaints in the federal sector must be kept confidential. This goes for investigations and hearings. Only after the decision has been appealed to the EEOC and EEOC has issued a decision, does the decision itself become public. These appellate decisions are available on our website: https://www.eeoc.gov/federal/decisions.cfm
Note: because there can be a couple of months lag time between issuance and publication, the decision is not yet on our website.
The full text of the EEOC decision can be viewed here.