- The Washington Times - Thursday, August 4, 2016

The U.S. Equal Employment Opportunity Commission is gathering information to determine whether the iconic Gadsden flag is racist and punishable under federal workplace harassment regulations.

The impetus was a Jan. 8, 2014, complaint brought by a black federal employee who was upset by his coworker’s hat, which bore the flag.

The individual who filed the complaint did so because the flag is allegedly an “indicator of white resentment against blacks,” specifically tied to the tea party movement, and that its creator, South Carolina statesmen Christopher Gadsden, owned slaves.

Eugene Volokh, a UCLA law professor who specializes in First Amendment issues and runs a blog for The Washington Post, wrote that the case includes no evidence that racial epithets were ever uttered — though some details of the case are not revealed due to secret proceedings — and the EEOC acknowledged that Gadsden created the flag “in a nonracial context” prior to the Revolutionary War.

“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,” EEOC officials wrote. “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.”

Mr. Volokh warned of far-reaching implications over the EEOC’s stated concern about images “sometimes interpreted to convey racially tinged messages in some contexts.”

He walked through how a “reasonable employer” would act to avoid “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 … ), 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?” Mr. Volokh said. “Or would you say, ‘Nope, I’m not worried about the possibility of liability, I’ll let my employees keep talking’?”

The professor wrote that America has a “pretty serious First Amendment” problem because workplace harassment law has become “content-based, viewpoint-based speech restriction.”

• Douglas Ernst can be reached at dernst@washingtontimes.com.

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