Turning Citizens Against Each Other

Remember free speech? I do and it was great while it lasted. The Equal Employment Opportunity Commission is currently reviewing a complaint which may define the Gadsden Flag as a symbol of racial harassment for which employers could be punished. If the EEOC rules against the flag, employers who display or allow employees to display the flag, say on a hat, t-shirt, or bumper sticker, could be liable for penalties in a hostile workplace lawsuit.

The most recent case, Shelton D. [pseudonym] v. Brennan, 2016 WL 3361228, was decided 2 months ago. The decision leaves open the door for future claims.

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…

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.

The EEOC has already ruled that display of the Confederate Flag constitutes an actionable offense so classifying the Gadsden Flag in the same way is not a stretch. In fact, there is already precedent for it as cited above in the New Haven incident.

While the EEOC’s ruling would not have the effect of banning the flag outright, that would likely run into First Amendment challenges, it would expose employers (private and government) to civil actions which would likely cost them dearly. The practical impact of such a ruling is effectively the same as a ban – private, political speech would be limited as a result of government action. If the EEOC were to take such action it would certainly pass constitutional muster with the Supreme Court even as it fails the common sense smell-test. Such is life under the administrative state.

In effect, government empowers private parties to do what it cannot do itself in order to maintain the constitutional form while abandoning the substance. Doing so is, in some ways, more destructive than direct government action because it turns citizens against each other, changing them slowly from Americans into competing grievance groups. Such action alienates the American people from one another and in doing so undermines both our politics and our culture. It is just one more example of the social division that comes from big government and the estrangement of that government from the people upon whose consent it relies for legitimacy.

Still, there is something absurdly comic about this issue coming to the fore over the Gadsden flag. The irony of an overreaching and increasingly unaccountable government encouraging punishment for displaying the Gadsden Flag will surely be lost on the mandarins at the EEOC.