It’s political season and everyone seems to have something to say, including (not surprisingly) the Equal Employment Opportunity Commission (EEOC). According to the EEOC, wearing a hat that states “Don’t Tread on Me” to work could potentially be a form of racial harassment. The phrase comes from the Gadsden flag, which is a historical American flag with a yellow field depicting a rattlesnake coiled and ready to strike. Positioned below the rattlesnake are the words “DONT [sic] TREAD ON ME”.
The EEOC noted that while the Gadsden flag “originated in the Revolutionary War in a non-racial context,” and has been “used to express various non-racial sentiments”, it also has a checkered recent past. A few years ago, it was used by white supremacists in connection with the murder of two Las Vegas police officers (both of whom were white) and African-American firefighters in New Haven, Connecticut, making the sentiment “racially insensitive”. As a result, in a racial
harassment case brought against the U.S. Postal Service, the EEOC determined that the harassment claim should be investigated. The alleged harassment? The fact that the co-worker continued to wear a “Don’t Tread on Me” cap to work despite the complainant’s requests that he not. Of note, the EEOC did not find that the harassment actually occurred, only that the allegation was worthy of investigation.
Legal opinions on the short and long term effects this decision vary. Some believe that the EEOC’s position will have a chilling effect on private sector employers, indirectly resulting in the suppression of the employees’ free speech rights. Indeed, the concern about creating harassment liability based solely on an employee’s subjective opinion that a co-worker’s expression or political opinions create a hostile work environment could be justified. How will your business handle this type of situation?
To discuss, contact experienced business lawyer Drew E. Pomerance today.