Government says Wearing “Don’t Tread on Me” insignia might be unlawful racial harassment

The Gadsden flag dates back to the Revolutionary War. It depicts a rattlesnake coiled and ready to strike, along with the words “DONT [sic] TREAD ON ME.”

The flag was designed by Christopher Gadsden, a delegate to the Continental Congress and a brigadier general in war that made the U.S. independent. In modern times, it has been used by the Tea Party and by supporters of the U.S. national soccer team.

Eugene Volokh reports that when an employee of a private company wore a cap with the “Don’t Tread on Me” insignia to work, a co-worker complained to the United States Equal Employment Opportunity Commission (EEOC) that wearing the cap constituted racial harassment on the part of the employer, which apparently did not ban it. The employee said he found the cap to be racially offensive to African Americans because the flag containing the slogan was designed by Christopher Gadsden, a “slave trader & owner of slaves.”

The argument is laughable. The Declaration of Independence was written by a slave owner. Does quoting it constitute racial harassment? Plenty of slave owners participated in the drafting and enactment of the U.S. Constitution. Is it racial harassment for the U.S. to abide (to the extent it still does) by the Constitution?

Instead of summarily dismissing this complaint, the EEOC concluded “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 hat wearer] displayed the symbol in the workplace.” It noted that “in June 2014, assailants with connections to white supremacist groups draped the bodies of two murdered police officers with the Gadsden flag during their Las Vegas, Nevada shooting spree.”

The argument is laughable. Muslims have shouted passages from the Koran while killing Americans. Does this mean that if someone complains about a Muslim carrying the Koran to work the EEOC will investigate “the context” in which [he] carries the Koran?

No it does not. The EEOC isn’t articulating a theory of workplace harassment; it is cracking down on conservative political speech.

Everyone understands that “Don’t tread on me” is an anti-government slogan. Gen. Gasdsen used it in opposition to what he considered the tyranny of the British government. Tea Party activists use it in opposition to what they consider the tyranny of the liberal U.S. government. (Soccer enthusiasts presumably use it because it’s cool).

Now, the government is going to determine whether an employer violates the law by permitting an employee to wear a hat with this anti-government slogan. To accomplish this, it will decide what, “in context,” the employee really meant. By engaging in this inquiry, the government treads on our liberty and validates the concern of Tea Party activists, and many others, that we are drifting towards tyranny.

Volokh examines the First Amendment implications of the EEOC’s abuse of state power:

Imagine that you are a reasonable employer. You don’t want to restrict employee speech any more than is necessary, but you also don’t want to face the risk of legal liability for allowing speech that the government might label “harassing.”

An employee comes to you, complaining that a coworker’s wearing a “Don’t Tread on Me” cap — or having an “All Lives Matter” bumper sticker on a car parked in the employee lot, or “Stop Illegal Immigration” sign on the coworker’s cubicle wall — constitutes legally actionable “hostile environment harassment,” in violation of federal employment law. The employee claims that in “the specific context” (perhaps based on what has been in the news, or based on what other employees have been saying in lunchroom conversations), this speech is “racially tinged” or “racially insensitive.”

Would you feel pressured, by the risk of a lawsuit and of liability, into suppressing speech that expresses such viewpoints? Or would you say, “Nope, I’m not worried about the possibility of liability, I’ll let my employees keep talking”? (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.)

The EEOC’s abusive approach might also limit speech about an election campaign:

Say someone wears “Trump/Pence 2016” gear in the workplace, or displays a bumper sticker on his car in the work parking lot, or displays such a sign on his cubicle wall, or just says on some occasions that he’s voting for Trump. He doesn’t say any racial or religious slurs about Hispanics or Muslims, and doesn’t even express any anti-Hispanic or anti-Muslim views (though even such views, I think, should be protected by the First Amendment against the threat of government-imposed liability).

But in “context,” a coworker complains, such speech conveys a message “tinged” with racial or religious hostility, or is racially or religiously “insensitive.” The coworker threatens to sue. Again, say you are an employer facing such a threat. Would you feel pressured by the risk of liability to restrict the pro-Trump speech?

I think many employers would.

Now permit me to quote myself. The other day, I wrote:

[I]n the aftermath of the Freddie Gray trials, we see the same imperative of outcomes that drives the war on standards prompting stirrings for something potentially more disturbing — an attack on liberty.

In “context,” as the EEOC likes to say, its stance on “Don’t Tread on Me” is another example of how far-fetched claims of racial injustice can become the platform for an attack on liberty.