Chilling to say the least.
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.
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.” […]
A few thoughts:
1. Recall that this is not a case about when private employers may restrict what their employees wear on the job, or even about when government employers may do so. Private employers have very broad power on this, because they aren’t bound by the First Amendment (though statutes in some states may constrain employers’ power to some extent). Government employers also have fairly broad power to restrict their employees’ on-the-job speech and behavior.
Instead, this is a case about the rules that all employers, public or private, must follow, on pain of massive legal liability. The harassment law rules (which, as I noted, are the same for private employers as for the federal government) are imposed by the government acting as sovereign — the area where the First Amendment should provide the most protection — not just the government acting as employer.
2. Nothing in the opinion suggests that the cap wearer said anything racist to Shelton D.; I’ve read many such EEOC decisions, and they generally list all the significant allegations of harassment. (I can’t access the specific complaint in the case, because all that information is kept secret in EEOC proceedings.) Shelton D.’s objection was apparently just to the wearing of the flag, and the ideology that he thinks has become associated with the flag. And the claim that the EEOC is allowing to go forward is simply that the cap, in some social or workplace “context” would be reasonably seen as conveying a racially offensive message.