By Eugene Volokh 8-3-16 The Equal Employment Opportunity Commission,
among its other functions, decides “hostile work environment”
harassment claims brought against federal agencies. In doing so, it
applies the same legal rules that courts apply to private employers, and
that the EEOC follows in deciding whether to sue private employers. The
EEOC has already ruled that coworkers’ wearing Confederate flag
T-shirts can be punishable harassment (a decision that I think is incorrect); and, unsurprisingly, this is extending to other political speech as well. Here’s an excerpt from Shelton D. [pseudonym] v. Brennan, 2016 WL 3361228, decided by the EEOC two months ago:
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.
The Equal Employment Opportunity Commission,
among its other functions, decides “hostile work environment”
harassment claims brought against federal agencies. In doing so, it
applies the same legal rules that courts apply to private employers, and
that the EEOC follows in deciding whether to sue private employers. The
EEOC has already ruled that coworkers’ wearing Confederate flag
T-shirts can be punishable harassment (a decision that I think is incorrect); and, unsurprisingly, this is extending to other political speech as well. Here’s an excerpt from Shelton D. [pseudonym] v. Brennan, 2016 WL 3361228, decided by the EEOC two months ago:
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