The Equal Employment Opportunity Commission (EEOC) investigates alleged incidents of workplace discrimination, and is now also deciding what political speech can and cannot be policed in the workplace. This includes whether wearing a cap with the “Don’t Tread on Me” Gadsden flag could be considered punishable racial harassment. This is “unsurprisingly” after EEOC previously decided Confederate flag T-shirts could be be punishable harassment, Eugene Volokh writes for The Washington Post.
Even though the EEOC admitted that “it is clear that the Gadsden Flag originated in the Revolutionary War in a non-racial context,” they say “it also has since been sometimes interpreted to convey racially-tinged messages in some contexts.”
Volokh, who has read many EEOC decisions before, says that nothing in the opinion suggests the person who wore the cap said anything racist to the Complainant.
Volokh warns “this is a case about the rules that all employers, public or private, must follow, on pain of massive legal liability.”
Not only will the case apply to the Gadsden flag, but it could have overarching effects for employers deciding if they’re going to limit free expression and speech for fear of lawsuit, or if they are going to take the risk. “Again, the question isn’t what you may do as a matter of your own judgment about how you would control a private workplace; the question is whether the government is pressuring you to suppress speech that conveys certain viewpoints,” Volokh said.
What is racist could be widely interpreted depending on the context. A person who says or communicates that he or she is voting for Donald Trump could be found to be conveying a message with hostility.
The effects have already been felt; employment law experts have suggested employers restrict speech, including that of a political nature.
“Workplace harassment law has become a content-based, viewpoint-based speech restriction, including on core political speech” Volokh said, which he concludes is “a pretty serious First Amendment problem.”
There are surely other cases out there of employees allegedly suffering from real workplace discrimination. Instead, the EEOC is involving itself in potentially restricting the right to free speech and expression of others.