Federal Government: Gadsden Flag Could Be Considered Racial Harassment

Yesterday, the Washington Post reported the Equal Employment Opportunity Commission has ruled that wearing “Don’t Tread On Me” paraphernalia could be considered racial harassment.

The commission, among its other duties, decides hostile work environment harassment claims against the federal government. But they have gone to the extreme in regulating political speech. For instance, wearing Confederate flag T-shirts can be a punishable offense.

The Gadsden decision is based on a 2014 complaint, Shelton D. [pseudonym] v. Brennan, 2016 WL 3361228:

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: http://www.reviewjournal.com/news/las-vegas/shooters-metro-ambush-left-five-dead-spoke-white-supremacy-and-desire-kill-police.] 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.

Additionally, the cap wearer in the complaint did not say anything racist to Shelton D. Regardless, the EEOC still branded it as conveying a racially offensive message.

If such items can be considered contributing to a hostile work environment, what else could be included in that list?

Four out of the five commissioners of the EEOC, including Chair Jenny Yang, were appointed by President Obama.