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”.