EEOC tells employers: Investigate employees who wear 'Don't Tread On Me' caps

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Published by: Dan Calabrese on Friday August 05th, 2016

It might be discrimination or something.

You know that government can't restrict your speech. Officially. But they can in all kinds of practical ways, just as they can do lots of other things to you without ever really taking an official action against you.

Take the famous "Don't Tread On Me" cap. Congress will never pass a law that says you can't wear that cap, just because politicians may not like what the cap stands for. Constitutionally, Congress cannot do so. But if you think that means the government can't come down on you for wearing the cap, you need to become familiar with the EEOC.

The Equal Employment Opportunity Commission is a governmental body that investigates alleged discrimination in the workplace, and in recent years the EEOC has been quite willing to include situations in which one employee claims to feel uncomfortable or discriminated against simply because of what he sees or hears around the workplace. And as one employer recently discovered, that can even extend to an employee wearing the aforementioned cap. Why? As the excellent blogger Eugene Volokh explains, it's not because the cap expresses anything racist or otherwise discriminatory, but solely because another employee decides to take it that way:

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.

I know that's a long excerpt from the ruling, but I think it's important to show you the bizarre logic the EEOC used to come to the conclusion that employers should put employees under a microscope simply because they choose to wear a cap that expresses a philosophical idea.

The effect this will have is to make employers fear lawsuits unless they restrict certain kinds of speech, and Volokh explains exactly what is so insidious about that:

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? (As before, the question isn’t whether you’d be inclined to do that yourself, whether from opposition to Trump, or a desire to avoid controversy that might harm morale; because the First Amendment doesn’t apply to private employers, private Internet service providers, private churches, private universities, private landlords, or others, they are not constitutionally constrained from restricting speech. The question is whether you would feel pressured by the government to impose such restrictions, through the threat of being forced to pay money in a civil lawsuit if you don’t impose them — and whether the government should be able to pressure such private organizations or individuals to restrict speech this way.)

That's exactly the problem. Congress will not pass a law saying that this or that idea cannot be expressed. But Congress doesn't need to do that. If the courts are willing to entertain discrimination suits based on guidance from the EEOC, then employers will feel compelled to restrict certain kinds of speech that might bring about such lawsuits.

And this gives disproportionate power to people who are inclined to go around complaining about the expressed opinions of others. If you're the type of person who is willing to live and let live when others express opinions contrary to your own, then no one is going to worry too much about what you might think. But if you're the type who goes around getting offended by other people's opinions and complaining to management, now management has to concern itself with what you might do. The most obvious way to do that is to restrict the kinds of expressions that people like that tend to complain about.

If I may be so bold as to offer this speculation, that type of expression would tend to be conservative more often than not, because it's people on the left who tend to scream and complain when exposed to opinions they do not like.

Government doesn't have to pass any laws to come down on you for what you do. They can encourage lawsuits against you. They can investigate you. They can issue a commission ruling against you. You thought you had a constitutional right to do something, and technically you still do, but the government has many ways of making it not worth the trouble for you to exercise that right.

And that includes scaring your employer into thinking they had better restrict your behavior or risk a lawsuit.

You really have no rights at all. Oh, the government may well decide to leave you alone. But if they decide not to, they will find a way to bring you under control. Constitution be damned.

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