Censorship

When Wrongthink Becomes Workplace Harrassment

The EEOC wants to decide whether the Gadsden flag might be racist.

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Gadsden flag
Lexicon

We are all well aware (or should be well aware) that we don't actually have "free speech" at our private workplaces. Employers can monitor employee communications and—for the sake of workplace harmony or customer relations—declare topics off subject or require employees to not curse up a storm or scream at people, et cetera, et cetera.

Inappropriate workplace speech can also constitute harassment and discrimination under federal law. Racist and sexist behavior in the workplace is forbidden and can get the employer into legal and financial hot water.

So, what happens when people decide certain symbols and political positions are themselves inherently racist and create a hostile work environment? Here's what the culture of offense has led us to. As Eugene Volokh explains over at his blog hosted by The Washington Post, the Equal Employment Opportunity Commission (EEOC) is handling a complaint by a worker at a private employer who believes the Gadsden flag with the "Don't Tread on Me" text is racist. Therefore the employee has determined that an employee wearing a hat with the Gadsden flag insignia is racial harassment.

Volokh notes that the EEOC has already ruled that wearing the Confederate flag in the workplace could potentially constitute harassment and could be punishable under federal law. The EEOC's determination is disconcerting because it acknowledges that no, the Gadsden flag is not inherently racist, and then tosses in a very significant "but still":

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. …

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.

So this puts the EEOC in the position where it's claiming the authority to police what sort of political symbols are permitted in the workplace depending on how much racists might have corrupted them.

This puts workplaces in the position of having to try to figure out whether its employees will interpret political speech as racist or sexist harassment. As such, the matter becomes much less about employers setting rules for appropriate workplace speech and instead being pressured to censor it in order to avoid federal intervention. Volokh notes:

Let's think about how this plays out in the workplace. Imagine that you are a reasonable employer. You don't want to restrict employee speech any more than is necessary, but you also don't want to face the risk of legal liability for allowing speech that the government might label "harassing." An employee comes to you, complaining that a coworker's wearing a "Don't Tread on Me" cap — or having an "All Lives Matter" bumper sticker on a car parked in the employee lot, or "Stop Illegal Immigration" sign on the coworker's cubicle wall — constitutes legally actionable "hostile environment harassment," in violation of federal employment law. The employee claims that in "the specific context" (perhaps based on what has been in the news, or based on what other employees have been saying in lunchroom conversations), this speech is "racially tinged" or "racially insensitive."

Would you feel pressured, by the risk of a lawsuit and of liability, into suppressing speech that expresses such viewpoints? Or would you say, "Nope, I'm not worried about the possibility of liability, I'll let my employees keep talking"? (Again, the question isn't what you may do as a matter of your own judgment about how you would control a private workplace; the question is whether the government is pressuring you to suppress speech that conveys certain viewpoints.)

Furthermore, given a presidential campaign tinged with racial and ethnic animus, Volokh worries that a worker showing support for Donald Trump, whether through bumper stickers or speech, could create a workplace liability. It's not unusual for workplaces to forbid campaign signs or other partisan symbols for the reason of maintaining workplace harmony. But here, the EEOC is giving the suggestion that political positions and endorsements that an employee feels are racist could result in a federal discrimination or harassment claim. And thus, the federal government is able to push political censorship into private work environments.

Read more about the case from Volokh here.

NEXT: Ryan Maintains Trump Endorsement, Obama Turns 55, Jill Stein to Get CNN Town Hall: P.M. Links

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  1. …and could be punishable under federal law.

    They’re doing precisely what the flag says not to do.

    1. I guess there’ll be a market for the “Tread on me if the situation calls for it, I’ll let you decide”.

      And I suppose when some mope comes in with a Malcolm X shirt or a BLM hat, the opposite won’t be true?

      1. And I suppose when some mope comes in with a Malcolm X shirt or a BLM hat, the opposite won’t be true?

        No. Because, reasons.

        1. Such protections only apply to protected classes; those associated with the DTOM emblem are not representative of such groups and are therefore suspicious by their very nature.

  2. Robby could probably sue Reason at this point for the abuse he gets from the idiot peanut gallery.

    1. Do you imagine he would be far better-received elsewhere?

      1. Actually, I hear the commenters at Jezebel are putting together a petition to recruit him to write for them. Of course he’ll have to get a degree from the Columbia School of Journalism first.

    2. He knew the dangers when he signed up!

    3. Hey now! We *KNOW* you mean Fist. Stop with the hate against him.
      I mean, we ALL hate him, but don’t let him know.

  3. 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.

    So, a “whiner’s veto” in the workplace, since all you will need to show that it has “sometimes been interpreted” (like right now, by a whiner) to convey blah-blah. This will end well.

    1. Especially since those whiners are more than capable of interpreting any word or phrase, even “and” and “the,” as racially tinged.

      1. Hey, you can’t spell nigger without an “n” and an “e” and “and” and “the” have both of those letters. It doesn’t take much to trigger me, ooops THAT isn’t going to work either, is it?

        What we need are government mandated uniforms – ecru colored, unisex, no personalization allowed. Problem (and individualism) solved.

        1. That would explain the STTNG footie pajama uniforms.

      2. Yeah and we ALL know what *IS* really mean, amirite? Wink-wink, nudge-nudge.

  4. Gentlemen don’t wear hats indoors.

    1. These are federal government employees, not gentlemen.

    2. Holy Fuck that’s two cogent posts from Tony in one day.

    3. Unless under-arms.

      1. AR 670-1 (15 SEP 2014) 3-7 l (2)

      1. He’s not wrong.

        1. May be the case, but irrelevant.

        2. I was in a bar in Colorado with my hat folded and set on a seat next to me. An old guy came in and did the same. I told him how nobody does that anymore. He said, “Military, you?” I replied, “Nope, mom with a strong pimp hand.”

        3. That may be true, but with so short a comment, you can rest assured it’s for the entirely wrong reason. Ask him to amplify and I’m sure it’s for some batshit crazy reason that will make you want to set yourself on fire.

          1. If you ask Tony to amplify, you’ll get GENTLEMEN DON’T WEAR HATS INDOORS!

          2. Ask him to amplify and I’m sure it’s for some batshit crazy reason that will make you want to set yourself on fire.

            I’m guessing something like “Men get to take their hats off indoors, but women don’t blah blah sexism blah blah bigots blah blah more taxes blah blah Tumpitler.”

    4. Does that include yarmulkas?

        1. GentleMEN, R-tard. Stop trying to tell women what to do with their bodies. (Note: telling them to wear the hijab in the first place is totes cool, carry on.)

    5. I’m eager to see your list of law suits filed against companies by employees who disapproved of co-workers wearing hats?

  5. What’s really sad is this entire exercise by the EEOC is a blatant violation of the First Amendment that we have become so habituated to that we barely even notice it. Even though this article was tagged as a First Amendment article, it is not mentioned by name at all, and it basically assumes that the EEOC’s authority to police speech in the workplace is legitimate, if being abused in this case.

    1. Your words cease to be speech the moment I’m offended by them.

      1. Fire, crowded movie theater, no right is without restrictions, etc.
        Fuck these fascists.

        1. Brandenburg v. Ohio thankfully put an end to that ridiculousness.

          Though it’s always fun to have a reason to educate people, particularly lefties, on where the “falsely shouting fire in a theater and causing a panic” standard originally came from. Once they learn it was an attempt to shut up socialists, they tend to pipe down.

          A friend of mine has a saying: It’s always easy to have an opinion on something you don’t know anything about.

          Cue Citizens United v. FEC.

    2. The article also doesn’t explicitly say that censoring political speech is bad, so Scott and Volkh are both basically saying it’s good.

      1. The article also doesn’t explicitly say that censoring political speech is bad,

        Did you actually read the piece, Hugh?

        Workplace harassment law has become a content-based, viewpoint-based speech restriction, including on core political speech. A pretty serious First Amendment problem, I think, for reasons I discuss in more detail here
        ….[jumping to “here”]
        The First Amendment, I have argued, cannot tolerate laws that ban the exposure of certain “unacceptable” viewpoints on certain political issues — such as religion, affirmative action, or the Equal Rights Amendment.

        Free speech often exacts a high price. It has forced us to tolerate speech that urges revolution, that undermines the nation’s war effort, or that advocates what some see as immoral and dangerous personal behavior. Much of this speech, like much bigoted speech in the workplace, is material that many think valueless, and that many wish didn’t exist. Still, even such speech must be protected because the price the alternative exacts — the power of the government to impose an orthodoxy of speech and thought, or to cleanse public discourse of ideas it finds dangerous and threatening — is even higher. .

        Actually, that is pretty unequivocal, and worse than merely, “Bad” .

        1. I didn’t click through to the Volokh article. Glad he didn’t miss a chance to point this out.

    3. What’s really sad is this entire exercise by the EEOC is a blatant violation of the First Amendment

      THIS!
      THIS!
      THIS!
      THIS!
      THIS!
      THIS!
      THIS!
      THIS!
      THIS!
      THIS!

  6. This government has done jumped the proverbial shark. Anyone can say anything is racist and deny other individuals the right to free expression.

    1. the proverbial shark

      I can only assume that shark is both great and white. Racist.

      1. Jumping it checks its privilege though, so it cancels out.

      2. Maybe it’s a charitable basking shark, akin to a “slow-moving liberal with no teeth.”

        Yeah! I knew I’d work a GTA V reference into my day somehow!

    2. Anyone cannot simply day something is racist and make it so.

      Only some people can say so and make it so.

      O

  7. The left’s war against free speech continues unabated.

  8. Wut.

  9. Seeing a water cooler at work reminds me that racists drink water. The cooler must be removed. Racists also eat food, breathe air, and talk, so all of those must be disallowed as well.

    1. The cooler must be removed.

      I was trying to decide if banning fried chicken and collard greens was being tolerant or being a racist. I realized the solution would be to have two lunchrooms. One where the tolerant people eat and another where people are free to eat fried chicken and collard greens.

      1. You could have a separate lunchroom, as long as they are both supplied equally.

      2. I like my collard greens mixed with kale. What does that make me?

        1. I like my collard greens mixed with kale. What does that make me?

          Do you eat them indignantly or sarcastically?

          1. Or Ironically? Or post-ironically?

      3. I demand a vegan lunchroom. Not for me, but for them.

    2. What’s this about removing coolies from the work place?

      1. *hat tip*

  10. In a just world the righteous course of action would be to fire the hypersensitive snowflake on the spot. But of course the EEOC will come after you for that too. Heads or tails the SJW will win eventually when the govt is involved.

    1. In a smart world, you filter them out during the recruiting process.

        1. HR can give me all the resumes they want, I still pick which get interviewed.

          1. Dude, it’s the resumes you don’t get from HR.

      1. But that’s another problem with the EEOC – any reliable method of weeding guys like this out probably involves questions that are themselves grounds for a complaint.

        1. “are you now, or have you ever been, a supporter of Bernie Sanders?”

  11. By the way, wearing the confederate flag is also protected under the first amendment. Again, an employer may ban it, but the EEOC has no say in it whatsoever.

    And I’m not even gonna follow this up with an equivocation.

  12. the Vice President of the International Association of Black Professional Firefighters cited the Gadsden Flag as the equivalent of the Confederate Battle Flag

    Well, I guess that settles it.

    1. Fuck you history and your distinct conservative bias.

    2. Anyone ponder why an organization named International Association of Black Professional Firefighters isn’t racist? It seems to most certainly BE racist. And has there been such a gross historical pogrom against black fire fighters that necessitated its existence? In short, another shake down artist making trouble to justify his existence.

      Perhaps part of the upside that everything is falling apart, Shit like this is going to be settled up one way or another. Let the victor write the history books, but at least the absurdity will be gone.

  13. BTW, when filming the Dukes of Hazzard, was the presence of the confederate flag during scenes with the car a workplace violation? What about the theaters in which it was shown?

    1. It never came up because that would require people to admit having seen/worked on that movie.

      1. Watching Daisy Duke in the original show was a violation… IN MY PANTS!

        1. Those shorts were so tight you can still smell tuna through the TV in 35 year old re-runs…

  14. So if an African American has the old red-green-black flag in their their office or on a Bob Marley shirt on casual Friday, and since that flag has at times been loosely associated with/appropriated by Black Power groups advocating violence against whites, does that get banned too? What about a black guy wearing a bowtie, since you know, those Nation of Islam guys like bowties, and they believe whites were created by an evil black scientist to torment blacks. Can we get bowties banned?

    1. Bow Ties are hate-crimes for entirely different reasons.

  15. So my T-shirt with a picture of Ted Nugent branding a swastika on Obama’s naked ass with the caption: “Bag em and Tag Em?”

    OK? Not OK?

    Help me out here.

    1. Remember when criticizing tattoos (for taste or being overdone) made you look “white and republican”?

      Yeah.

  16. While I’m willing to extend the benefit of the doubt to this one guy, this could easily be a veiled attempt to suppress disfavored political speech. I have Gadsden flag license plates and I’m sympathetic to Black Lives Matter. Lots of libertarians use the Gadsden flag with no racial connotation, and lots of leftists would love to suppress political speech of a non-racial nature just because they can. I refuse to be shamed for displaying libertarian symbols just because some assholes have decided to adopted those symbols to mean something I’m against.

    You start playing that game and very quickly it will become a game of attempting to ban other people’s symbols, which will make it impossible to communicate solidarity, which is the point. The left doesn’t want people with shared minority political views to be able to communicate solidarity with one-another. And that doesn’t just include racists.

    1. Well said.

    2. Opposition to the state is racist. Q.E.D.

    3. You start playing that game and very quickly it will become a game of attempting to ban other people’s symbols

      Whaddaya mean “start”? It’s been going on, and it will continue to go on as long as people are offended by symbols. And words. The swastika was co-opted by the nazis. Now it can never be depicted in any other context.

      Say goodbye to the snake.

      1. And they weren’t even deliberately trying to co-opt the swastika.

        1. Or that mustache.

    4. Unfortunately we’re only a few short years from publicly saying you’re an “individualist” will be forbidden. It is already so deeply wound into the racist narrative, it’s only a precedent away from falling into the unallowed column. Yes, we’ve gone that far – and still sliding with plenty of inertia – in that direction. All part of the “this isn’t going to end well” end of the pool.

      1. Unmutual!

      2. Remember a few decades ago the teacher’s marginal note on the student’s paper to the effect that many consider references to “the individual” to be racist?

      3. It may as well be. “Colorblind” is now racist, our former attorney general even said so. Judging people not according to their race is racist. Not according to their sex is sexist. Freedom is slavery, ignorance is strength.

  17. I have a Gadsden flat t-shirt I bought at the Lexington-Concord National Park Service gift shop in 2008 or so. I never knew NPS was such a nest of racism.

  18. i get Paid Over ?80 per hour working from home with 2 kids at house. I never thought I would be able to do it but my best friend earns over ?9185 a month doing this and she convinced me to try. The potential with this is endless.

    Heres what I’ve been doing,……… http://www.CareerPlus90.com

  19. SAT 2017 question:

    American flags are to racists as images of Mohammed are to….

    a) SJW’s
    b) Racists
    c) Muslims
    d) Infidels
    e) All of the above

  20. Hmm… white people historically committed lots of hate crimes, instituted slavery and Jim Crow, etc. With this legacy of evil, doesn’t hiring white people inherently create a hostile work environment?

  21. Employment is ableist, and commissions ruling on others lives are both elitist and undemocratic.

    Sorry EEOC, I going to sue your faces off.

  22. The EEOC wants to decide whether the Gadsden flag might be racist.

    The indignity here is the idea that they have the power to decide whether the Gadsen flag is racist in the first place.

  23. However, whatever the historic origins and meaning of the symbol, it also has since been sometimes interpreted to convey….

    This is the same muddled thinking that our EE Officer uses to describe harassment, i.e., if someone perceives something as harassment, regardless of the intent, then it is harassment. By this logic, I could claim that I am being harassed by the EE Officer because I perceive her insane pronouncements of political correctness as an attempt to drive me insane (which effect they are indeed definitely having).

    1. You would think. But there is an added layer. There is some language in there about “reasonable”. By which they mean, “people we agree with”. So that ain’t gonna be you.

      1. Is that like “reasonable”, common-sense gun prohibition control?

        1. No, like “reasonable person”.

          They left an out for “this person is objectively mentally ill” so that they don’t have to put in rules banning button-down collars as racially offensive.

          But the standard is pretty much only in the eye of the (enforcing body) beholder. So good luck if you ever stand accused.

          I did chance to stand accused of “hostile environment” harrassment once in such a situation. My secretary initiated a conversation with a couple of us about a news show on PBS the night before about middle school kids and sex. In the course of the conversation we talked about our daughters and how we were going to handle it. I mentioned that with good nutrition these days, girls are entering puberty much earlier than they used to. My neice got her period at eight. (!) With the upshot being that you couldn’t delay having “the talk” these days.

          Well, she found that offensive and reported it to HR. Despite this being her topic. Despite my having given her a job and paid for her night classes and helped her in obtaining new skills on the job and driven her and her daughter to the doctor when her car broke down.

          Rather than the boiler plate mea-culpa that is the normal way out, I told HR and our general council that I’d take my version to court and would stand on principle on this one. Then I thanked them for their time and walked out. I never heard another word about it. But it was telling that HR didn’t feel it was possible to tell her to get bent.

          1. It seems unwise to start messing with your boss in this way? Particularly over something as inconsequential as water cooler conversation.

            Even if your work ethic is impeccable, constant attention from a superior with a grudge can make work really unbearable.

            1. So what? She’s a protected class, so any hint of a retribution, even spilling coffee on some of her paperwork, just serves to set her up for another complaint or even a suit. And at that point, the boss has already been accused of wrongdoing, much like with criminal court where past arrests without convictions is still implicitly seen as evidence of criminal behavior.

              The real boss is the HR department.

              1. The apparatchiks rule

          2. “But it was telling that HR didn’t feel it was possible to tell her to get bent.”

            In my experience, people that work in HR live for these kinds of opportunities. They are glorified administrators that want to act like they are important and powerful.

          3. This is one of the chief reasons I strongly prefer to never take a job where I have supervisory responsibility again. Having to supervise people is a minefield fucking nightmare.

  24. I propose a much more in-your-face direct challenge to this policy. File objections to displays of support for the DNC and its candidates en mas. Every racist law of the Jim Crow era was passed and enforced by Democrat lawmakers. Every klansman donning a hood in the era of lynching was a member of the Democrat party. Every government official denying a black person the right to vote at a polling place during Jim Crow was a Democrat.

    So all of those Hillary ’16 bumper stickers are inherently racist, by this standard. Even better, Obama bumper stickers and paraphanalia are inherently racist, because despite his personal race or even his personal politics, he is the standard bearer for the DNC.

    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.

    They pull in a couple of weak examples for the Gadsden flag. I’m quite certain that we could come up with a couple of hundred examples for the DNC that are much stronger than those.

    Yeah, I know. Nobody says they have to be consistent in their theology. Plus, everyone running the department is a democrat, so that ain’t happening. But still…. it would be deliciously ironic.

    1. I’ll go you one better. The Gadsden’s that I occassionally see at work are on people private cars parked in the lot. Contrast that with the Obumah or Hillarity stickers I’ve seen on office bulletin boards or door inside the buildings.

  25. If someone where to try and curtail my speech I imagine my response would be, “So my speech isn’t free? Pay up then, asshole. That will be five bucks.”

  26. So I guess the EEOC is going to start taking seriously the claims of Catholics and evangelicals that the display of rainbow symbols at work creates a religiously hostile environment for them.

  27. Gadsden Flag – totally racist.
    Black Lives Matter – totally not racist.

    Anti-discrimination laws are the foot-in-the-door for the Thought Police.

  28. Eugene Volokh explains over at his blog hosted by The Washington Post

    I can’t understand how that happens without a matter/antimatter explosion.

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