The flag was designed by Christopher Gadsden, a delegate to the Continental Congress and a brigadier general in war that made the USA independent.
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Pointing to rulings over the past several years which determined that Confederate flag attire constitutes hostile workplace harassment, Volokh offered up scenarios in which employers hoping to avoid legal liability restrict employees from wearing or displaying items with the slogans “All Lives Matter”, “Stop Illegal Immigration” or even “Trump/Pence”.
The Colonel had seen a yellow banner with a hissing, coiled rattlesnake rising up in the center, and beneath the serpent the words: “Don’t Tread On Me”.
According to the report, the “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'”.
As Volokh points out, the complainant does not say whether this hat-wearing co-worker ever acted or spoke out in a racially offensive way.
“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 [the coworker] displayed the symbol in the workplace”, the preliminary ruling reads.
In its decision two months ago, the EEOC said it was clear the Gadsden Flag originated during the Revolutionary War in a non-racial context.
As evidence to support that claim, the commission cited a 2014 shooting at a Walmart in Las Vegas in which two white supremacists murdered two police officers and draped the Gadsden flag over their bodies. In so finding, we are not prejudging the merits of Complainant’s complaint.
‘But in “context”, a coworker complains, such speech conveys a message “tinged” with racial or religious hostility, or is racially or religiously “insensitive”.
‘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’.
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For Eugene Volokh, the law professor who brought this case to the public’s attention, labeling the Gadsden flag as harassment would be an unfair government imposition on political speech, turning harassment laws into a “content-based, viewpoint-based speech restriction”. I think in the workplace, flags are just like religion sometimes: “it’s not appropriate”, said Nelson Linder, the President of the Austin branch of the NAACP. A representative for the EEOC did not immediately respond to a request for comment. That decision, while understandably less objectionable than the absurdity of declaring a symbol of the American Revolution racist, was still one that had many free speech advocates fretting that the EEOC was putting a foot down the slippery slope. Will these things too be considered racial harassment?
