Is it racial harassment in the workplace to display the yellow “Don’t tread on me” flag? The Equal Employment Opportunity Commission says that it could be, depending on the context.
The commission acknowledged that the Gadsden flag, which dates to the American Revolution, did not have racist origins. But it called for a careful investigation to see whether recent uses of the flag have been sufficiently “racially tinged” that it could count as harassment.
A strong argument can be mounted that this EEOC decision is a threat to the First Amendment — and that’s exactly the argument made by UCLA law professor Eugene Volokh on his blog, the Volokh Conspiracy, in reporting on the commission decision. But on closer examination, I think the commission got this one right. When it comes to the meaning of symbols, social context is everything.
Even symbols that have no direct historical connection to racism can change meaning over time. And if we’re going to have laws against workplace harassment, we have to prohibit all harassing behavior — including harassment that’s overtly political.
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The Gadsden flag features a coiled rattlesnake on a yellow field over the famous motto. It is said to have been designed or at least promulgated by Christopher Gadsden, a politician and patriot from Charleston, S.C. He was a member of the Marine committee of the Continental Congress; the newly formed Marines were reported to have used some version of the image and logo on their drums in 1775. And Gadsden gave a version of the flag to the commander-in-chief of the continental navy to use as his personal standard on his flagship. In 1776, Gadsden gave a version of the same flag to the South Carolina legislature.
Gadsden made his money as a merchant in South Carolina, and both owned and sold slaves. As it happens, in common with other slaveholding members of the founding generation, he also sometimes spoke against slavery. In a 1766 speech, he referred to slavery as a “crime,” while observing that “slavery begets slavery” and predicting that South Carolina would see more of it.
But there seems to be no dispute that the flag, as used by the Marines and others in the Revolutionary War, was a message to King George, and had nothing to do with slavery or racism per se.
In his complaint to the EEOC, the anonymous writer objected to a co-worker wearing a hat bearing the flag “because the flag was designed by Christopher Gadsden, a ‘slave trader & owner of slaves.’”
On its own, that’s a pretty weak argument. The fact that a slave owner created a symbol doesn’t mean that symbol is racist. The Constitution itself, after all, was designed in large part by slave owners.
But the complainant added the assertion that the flag has come to be “a historical indicator of white resentment against blacks stemming largely from the Tea Party.” He pointed out 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 commission concluded that despite the original meaning of the flag, and despite the many nonracist contemporary uses, nevertheless the flag today is “sometimes interpreted to convey racially-tinged messages in some contexts.” As an example the commission gave a June 2014 shooting in Las Vegas, where white supremacists “draped the bodies of two murdered police officers with the Gadsden flag.”
Consequently, the commission called for an investigation of the specific complaint’s context to see if workplace racism was in play.
Further investigation is reasonable because the meaning of symbols does indeed evolve. The Confederate battle flag meant one thing to troops in the Civil War, another to postwar members of the Ku Klux Klan, and something different still — or, really, a range of things — to those who display it today.
There’s something troubling about a government inquiry into the meaning of speech. As Volokh correctly points out, federal regulation of workplace political speech has no obvious stopping point: What if, he asks, someone considers a pro-Donald Trump workplace symbol to be racial harassment?
The problem with this argument is that it proves too much. Any form of prohibited workplace harassment, whether based on race or sex, can be mixed with a political message. If someone says in the workplace that Hillary Clinton shouldn’t be president because women shouldn’t work full-time, that’s a political statement. Yet it could also be part of the pattern of sex discrimination in a hostile work environment.
Indeed, if we believe that the personal is political, then nearly all workplace harassment has important political-symbolic expressive meaning. A committed racist who expresses his deeply felt views at work is unquestionably engaged in a form of politics.
The theory of our laws against harassment is that the workplace is different from the public square. Speech that’s constitutionally protected elsewhere is restricted at work precisely because we have a countervailing social goal of creating a discrimination-free workplace.
What makes this constitutional is a subtle question, but the simplest answer is that we are prohibiting a course of conduct at work, namely discrimination. The harassing words are prohibited because they are the mechanism whereby discrimination occurs. Because we’re in a controlled environment, not the public square, we allow the goal of anti-discrimination to outweigh the cost to self-expression.
Workplace anti-discrimination law is an experiment, of course. But so far, it seems to be a worthwhile one. Investigating potentially racist symbols at work isn’t a small price to pay — but it may be a necessary price.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.