Other government agencies have decided questions about the Gadsden Flag differently. At Wright-Patterson Air Force Base, for example, the flag was determined to be a U.S. historical symbol, with no untoward political overtones. Therefore, airmen residing in base housing could display it.
But the U.S. Equal Employment Opportunity Commission (EEOC) has now decided in a recent case that the Gadsden Flag may create a hostile work environment because there could be a “racial” subtext intended with its display.
The EEOC didn’t rule that this particular case constituted harassment — but it didn’t rule that out either. Instead, it ruled that the case needed an investigation if it were taken forward, to see the circumstances in which the Gadsden Flag symbol was worn to work by one of the plaintiff’s coworkers.
Sure sounds to me like trying to divine motives, rather than defining an inherently bad action (which is the rule-of-law approach).
A great way to keep us all dangling on a string, perpetually at risk from federal regulators who might detect bad motives in us when we’re doing absolutely anything.
The EEOC even acknowledged that the Gadsden Flag never was and isn’t now a symbol that communicates any racially divisive message.
Eugene Volokh cites the relevant passage from the decision in his Volokh Conspiracy blog at the Washington Post:
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. Here’s an excerpt from Shelton D. [pseudonym] v. Brennan, 2016 WL 3361228, decided by the EEOC two months ago:
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.
But here’s the EEOC on the flag itself:
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.
Historical fact and reality don’t matter, however, when somebody is imputing bad motives to someone else in the workplace.
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. Certainly, Complainant ascribes racial connotations to the symbol based on observations that it is sometimes displayed in racially-tinged situations.
Notice how so-called “white supremacists”* draping their victims with the Gadsden Flag are equated with offended coworkers perceiving the Gadsden Flag to be an affront.
These are two different acts; in Las Vegas, the shooters punctuated a vicious criminal act with the flag, whereas in New Haven, some firefighters took offense when others displayed the flag, but there was no intent on the part of the displayers to cause offense, or convey any radical or hostile message.
In fact, in the Las Vegas shooting, the shooters and all three of their victims were white. It was never determined by authorities that the shooting had anything at all to do with race. The only data point left here arguing “racial tinge” in either situation is the perception of some firefighters in New Haven that there were racial overtones in the display of the Gadsden Flag.
Yet the EEOC, in a bout of bad judgment and misuse of law, decided that both of these cases were equal instances of “racially-tinged situations.”
This is a view of legal obligation that can never be enforced under an actual “rule of law.” No one has any way to tell in advance if he’s doing something racially offensive. Determining that there was racial offense can only be a matter of letting the offended party’s perception be the deciding factor: for lawsuits, shakedowns, and firing people.
Regardless of who wields that power, it’s tyranny.
Read Volokh’s post for his thoughts, which are nicely laid out. He points out that, under this ruling, it’s quite possible for the government — e.g., the EEOC — to decide that an employer has allowed a hostile work environment to develop if a worker puts a Trump/Pence bumper sticker on the car he drives to work. The employer will probably conclude that he needs to preemptively restrict his employees in more and more insane ways, out of fear of a lawsuit.
The employer has broad discretion already to tell people not to display certain things at work. But now he has to go about in constant fear of another shoe dropping — a hostile work environment suddenly appearing — for no reason he can realistically foresee.
* The 2014 Las Vegas shooters, Jerad and Amanda Miller, had no history of any kind with white supremacism. Their history of political radicalism consisted of participating in an Anonymous/anti-globalist Million Mask March in the Chicago area in 2013. As LU contributor Renee Nal notes, they showed up briefly at the Bundy Ranch in 2014, only to be kicked off of it, presumably for being nuttier than a fruitcake.