Don’t Tread on My Safe Space

Huh? The EEOC has officially ruled that wearing a hat with the Gadsden flag could constitute racial harassment:

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.

From the decision:

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.”

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 … 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.

Read Volokh’s post where he breaks down the legal implications and logic. Note that the EEOC didn’t find that the Gadsden flag is offensive, just that a complaint alleging so can proceed. But look at the twisted logic of their decision: it doesn’t matter what the flag actually represents; it matters what someone feels it represents. By that logic, if I decide that Barack Obama’s face is anti-semitic and can produce evidence of anti-semites walking around with picture of Obama, I could petition to have his likeness removed from my workplace. It’s called a “chilling effect” and it’s not a figment of our imagination.

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?

We don’t have to imagine. As I documented a few months ago, universities around the country are already arguing that Trump signs are racially offensive and can be restricted or banned. The EEOC is opening the door to a slew of lawsuits and threatened lawsuits anytime someone is offended by something at work.

You want to know why Trump, despite being a giant horse’s ass, has as much support as he does? Shit like this is why. We are slowly establishing a Baby’s Veto over free speech, letting the most sensitive, paranoid and delusional people dictate what the rest of us can utter, lest we “offend” their delicate sensibilities. It’s insanity. And it will not end until we go through life in slate gray uniforms never expressing an opinion lest someone get “offended”.

Comments are closed.

  1. louctiel

    This really is a distortion of what happened.


    The worker for the USPS (a federal agency) went to a supervisor when a worker wore a hat he felt was racist.   Initially, the supervisor said they would tell the worker not to wear the hat (which may have been for any number of reasons going from perceived racism to workforce harmony.)  That was a dumb move on the supervisor’s part.


    When the worker was seen wearing the hat again, the guy filed a claim of racism.


    The USPS dismissed the claim on procedural grounds.  The worker appealed to the EEOC who said “you have to investigate.”  The USPS appealed the decision and was rejected.


    All that is happened is that the USPS has been told to investigate which is what they should have done in the first place.


    Volokh’s take on this is very good (as always) but other lawyers have looked at the long term effect of limiting all passive political speech in the workplace and what that means for other expressions such as wearing a cross, etc.   It is not as easy as “the Gasden flag can’t create a racially hostile environment.”


    If the USPS had done its job and looked at the claim from the start, we wouldn’t be here.  If the supervisor hadn’t stupidly stated he we tell the worker not to wear the hat thus giving the complaintant the “juice” to go forward, we wouldn’t be here.


    The USPS acted in a weaselly manner and got caught.  The EEOC seems to have correctly applied the law and said “go investigate.”

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  2. richtaylor365

    I had to chuckle when I read “workplace harmony”. Being a retired guy I managed to work my entire career not knowing that I had a right to workplace harmony. You know what would really promote workplace harmony? 2 hour lunch breaks, maybe some foot massages, a free juice bar, hell, more money and less work required, now that would really make me harmonious.

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  3. louctiel

    While I appreciate your “chuckle,” as a manager there are going to be times when you say to a person or people “can’t you get along?”  or  even  just “stop that.”


    No one says or said you have a “right” to workplace harmony, but it is often part of creating a smooth running, dynamic and focused work group.

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  4. AlexInCT

    No one says or said you have a “right” to workplace harmony, but it is often part of creating a smooth running, dynamic and focused work group.

    My experience is that it is exactly the opposite. While the usual liberal arts types are chasing this unicorn fewer and fewer people do work. Productivity takes an impact, or as usually happens, those of us that don’t give a flying shit about this bullshit touchy-feely crap, end up doing even more of the work only to be told at bonus and pay time that there wasn’t enough money to really reward us, because HR had to give all the harmony idiots money so they wouldn’t file lawsuits.

    There is a reason that I quit management a year after being pushed into it, and have been steadfast about staying technical and doing that kind of work: I feel obligated to actually do valuable work for the money I get paid, and I actually value results that translates to tangible dollars and cents. People that wonder why manufacturing and so much other work is going offshore should look directly at these idiotic changes in the work place as the reason for it. Yeah, I know the “experts” tell you it is the cheap labor, but the fact is that it really is the labor that actually produces and whines the least that is the attractive factor.

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  5. richtaylor365

    Yeah, louctiel, I get what you are saying, a happy workplace is more conducive to productivity. But don’t loose site of the other side of the coin, a workplace where workers  respect their bosses, that know their bosses have their back  and won’t go sniveling to HR with every little case of hurt feelings or perceived slights, will not pander to the PC fascists,and will when necessary tell the crybabies to ,”knock off the shit and get back to work”, this is even more conducive to productivity.

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  6. louctiel


    I believe that that harmony in the workplace includes the management saying “knock that off and get back to work.”

    My point in saying what the manager may have been thinking was not to justify his thoughts, but rather him saying he would have the other employee remove the cap gave credence to the complaint.    While we can discuss his intentions, it is the outcome that bothers me.

    It never should have been said.

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