Among the aspects of life of the poor, underprivileged students at Yale that made them unable to eat or sleep was that the people in charge of their residential colleges held the title “master.” Though the word “master” had nothing to do with slaveowners, it was sufficiently reminiscent to compel its elimination.
The argument, at the time, was that the elimination of the word made students feel better and did no harm (aside from undermining tradition, which is way overrated), so what was the big deal? Why not make a fairly easy change that would assuage the feelings of students, regardless of the lack of any substantive connection between the word “master” and their feelings about the word?
The Equal Employment Opportunity Commission has now been asked to hold that the wearing of a hat bearing a likeness to the Gadsden flag, the snake with the words, “Don’t tread on me,” can create a hostile work environment in a federal agency.
Complainant maintains that the Gadsden Flag is a “historical indicator of white resentment against blacks stemming largely from the Tea Party.” He notes 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.
After a thorough review of the record, 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.
However, whatever the historic origins and meaning of the symbol, it also has since been sometimes interpreted to convey racially-tinged messages in some contexts. For example, 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.
Eugene Volokh explains the First Amendment implications of such a holding.
[T]his is a case about the rules that all employers, public or private, must follow, on pain of massive legal liability. The harassment law rules (which, as I noted, are the same for private employers as for the federal government) are imposed by the government acting as sovereign — the area where the First Amendment should provide the most protection — not just the government acting as employer.
The complaint wasn’t that the hat-wearer was racist, but that the message had been adopted in the not-too-distant past by groups like the Tea Party, gun rights activists and a racist shooter, thus giving rise to feelings in another employee that the sight of a revolutionary war symbol was too hurtful to bear. That the EEOC understood its authority to include silencing speech raised an obvious problem, yet one with which the EEOC showed neither sensitivity nor concern. Its focus was on hostile work environments, and any clash with free speech wasn’t part of their job.*
Eugene goes on to show how this myopia could play out:
Now let’s get to the 2016 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.”
If the employer is amenable to suit, as the EEOC suggests it may be, the employer has a strong incentive to silence political speech rather than risk liability. Your right to support Trump isn’t worth your employer’s being sued for maintaining a hostile work environment, as far as your employer is concerned.
But nowhere in Title VII of the Civil Rights Act of 1964 will the words “hostile work environment” be found. Rather, it comes from the Supreme Court’s 1993 ruling in Harris v. Forklift Systems.
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. § 2000e-2(a)(1). As we made clear in Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986), this language “is not limited to `economic’ or `tangible’ discrimination. The phrase `terms, conditions, or privileges of employment’ evinces a congressional intent `to strike at the entire spectrum of disparate treatment of men and women’ in employment,” which includes requiring people to work in a discriminatorily hostile or abusive environment.Id., at 64, quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, 707, n. 13 (1978) (some internal quotation marks omitted). When the workplace is permeated with “discriminatory intimidation, ridicule, and insult,” 477 U. S., at 65, that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” id., at 67 (internal brackets and quotation marks omitted), Title VII is violated.
The Court tried to thread the needle between ordinary human conduct that might hurt someone’s feelings, and conduct that rises to a level of being so “severe or pervasive” as to be abusive.** Nowhere in the discussion of the Gadsden hat is this raised. Nowhere in the discussion does the EEOC consider whether one guy wearing an otherwise innocuous hat for otherwise innocuous reasons that happens, by dint of loose association, to offend someone, is severe or pervasive.
The potential for offense is infinite. Say an employer uses the color purple in its logo. An employee draws an association between the color purple and a story by Alice Walker about the status of black women in the south. Absurd? Contrary to Alice Walker’s message?
But as learned from the housemaster issue, there need be no actual substantive logic or factual connection. And as learned from the Gadsden hat, if it offends someone, reminds them of something racist even though it bears no connection beyond that reminiscence, it could be sufficient to create a hostile work environment and subject the employer to liability.
And as Eugene makes clear, sanitizing the work environment to reduce potential liability is a strong incentive. Few would argue that there is any justification for maintaining a hostile work environment, and, indeed, there isn’t. But the law never held that one person’s free association was sufficient to give rise to liability. The law is limited to discrimination that is “sufficiently severe and pervasive” that it causes the environment to be abusive.
The EEOC, focused only on its agenda, waters down the law to the level that anything might suffice. This is why deference must end, and why we can’t leave constitutional rights in the hands of radicalized bureaucrats. The problem isn’t necessarily the state of the law, but the state of regulatory agencies that ignore the law in their quest to fundamentally re-engineer society. And nobody seems to notice that the silly, friggin’ hat comes nowhere close to a violation of Title VII.
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.
Hanlon’s razor suggests that I shouldn’t impute malevolent intent to Feldman’s absurdly inaccurate claim. But if so, then no one this clueless should be teaching at Harvard Law School.
**This is also the law for Title IX sex discrimination, though it only seems to arise when used by universities defending suits by male students, and completely ignored when justifying their own claims that the law compels them to punish anyone against whom a claim is made.