The Equal Employment Opportunity Commission is currently debating whether attire bearing the Gadsden flag symbol can be construed as racial harassment.
The case began in 2014 at a private business when a black employee filed a complaint with the agency over a coworker who regularly wore a hat featuring the iconic snake and the “don’t tread on me” phrase.
The complaint alleged the flag was inherently racist because Christopher Gadsden, the flag’s designer, was “a slave trader & owner of slaves.” Even though the hat’s owner never made any racist comments according to the complaint, the black employee asserted the symbol is a “historical indicator of white resentment against blacks stemming largely from the Tea Party.”
The complainant also notes that the coworker continued wearing the hat even after being told to stop by his superiors.
Although the EEOC’s preliminary ruling stated that the flag was not racist, the agency is continuing to gather evidence before coming to a final conclusion.
“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 says. “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.”
Despite admitting no racial connotation, the EEOC continued by arguing that the symbol “has since been sometimes interpreted to convey racially-tinged messages in some contexts.”
“If the EEOC determines that the Gadsden flag is offensive in that setting, all employers — public and private — may be held liable for hostile workplace harassment if their employees wear the Gadsden flag or any other attire that complainants deem to be racist,” writes Daily Caller’s Chuck Ross.
The Washington Post’s Eugene Volokh warns the final ruling could set a dangerous precedent for free speech depending on the outcome. Anything deemed politically incorrect such as “All Lives Matter,” he notes, could potentially become a legally punishable act in the workplace.