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EEOC Rules That “Don’t Tread On Me” Hat Might Be Racially Offensive

According to an article in the Washington Post, the Equal Employment Opportunity Commission has ruled that an employee may create a racially hostile work environment by wearing a hat depicting the “Gasden Flag” (a coiled rattlesnake and the phrase “Don’t Tread On Me”).  Sheldon D. v. Brennan, 2016 WL 3361228. The Gasden Flag, which gained recent popularity as a symbol of the Tea Party movement, has its origins in the American Revolution, when it was used by the Continental Marines  as an early motto flag.  It is named for Continental Colonel Christopher Gasden, who designed the flag in 1775, though the use of the rattlesnake as a symbol of the American Colonies can be traced to  Benjamin Franklin.

The EEOC complaint alleges that an employee found a co-worker’s wearing of a  Gasden Flag hat racially offensive to African-Americans because Colonel Gasden was a “slave trader and owner of slaves.” He also alleged that the flag is a “historical indicator of white resentment against blacks stemming largely from the Tea Party.”   There is nothing in the EEOC ruling indicating that the cap wearer said or did anything  (aside from wearing the hat) that was racist.

Although the EEOC initially dismissed the Complaint on the grounds that it failed to state a claim, the Commission reversed course and decided to investigate the allegations. Significantly, the Commission did not rule that the display of the flag is necessarily racially offensive. Rather, it decided that, in light of the flag’s current use as a symbol of some anti-government and white supremacist groups, the EEOC needed to conduct a more thorough investigation to determine the context in which it was displayed in this particular workplace.

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While this agency action is by no means a final determination, it is one more ruling that will keep employers awake at night.  The Gasden Flag has become part of mainstream culture, and is depicted on specialty license plates in seven states, including Virginia.  Nike uses the image of a rattlesnake coiled around a soccer ball and a “Don’t Tread On Me” campaign in support of the American men’s soccer team, and the Gasden Flag can be seen at team games (including the 2010 World Cup).  The flag is used as a symbol by NASCAR driver Carl Edwards, it has appeared in the television series “Jericho,” and rock band Metallica recorded a song called “Don’t Tread On Me.”   The EEOC action makes it seems as though we are evolving (or devolving?) into a world where employers must rid the workplace of any symbol that could reasonably be viewed as offensive to someone  who fits into any of the myriad of protected categories.  Indeed, it almost seems as though the EEOC is expecting employers to play the role of Orwellian thought police, turning their workplaces into “safe spaces” where no one can possibly be harmed by a negative thought.

Robots seems more attractive every day, don’t they?

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