Who Decides the Meaning of YOUR Speech?

By John Ferris; Staff Member (Vol. 15)

What is your favorite item of clothing?  Whatever it may be, that item of clothing is likely something that has symbolic value to you and it expresses something specific when you wear it.  What if you wore that favorite item of clothing to work one day and were promptly told to go home and change because it offended one of your co-workers?  Is that reasonable?  Doesn’t your co-worker know that your Texas A&M “Aggies” cap doesn’t have any significant offensive meaning and that no one is even sure what an “Aggie” is anyways?

The short answer is that it does not matter.  If your co-worker perceives the symbolic meaning of your clothing to be offensive, it is enough to launch a government investigation into the meaning of your symbol unless management takes prompt action to appease your co-worker.

The situation described above is similar to what happened in Shelton v. United States Postal Service this summer.  In this case Mr. Shelton, who is an African-American, claimed that the Post Office subjected him to discrimination on the basis of race because the Agency failed to prevent one of his co-workers from wearing a cap with the “Gadsden Flag” printed on it.  Mr. Shelton claimed that the Flag had a racist meaning because it was associated with the Tea Party movement, was designed by a slave holder, and had been used in a single incident by a white supremacist organization.  In response, the management of Mr. Shelton’s local Post Office did not require the co-worker to remove the cap because they assessed that the Gadsden Flag had no significant racial connotations.

The formal complaint was dismissed by the Post Office after an internal investigation into the matter but reinstated by the Equal Employment Opportunity Commission (EEOC) on appeal.  The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against an employee because of the person’s race, color, religion, sex, national origin, age, disability, or genetic information.  The EEOC has the authority to investigate charges of discrimination against employers who are covered by Title VII (all federal agencies and most private employers with more than fifteen employees are covered).

The EEOC’s Flawed Method

While the EEOC’s decision to go forward with the case does not mean Mr. Shelton’s claim will be successful, it does mean that the EEOC thinks Mr. Shelton’s claim has potential merit.  The reason the EEOC made this assertion is because of the standard it uses for assessing racial harassment violations of Title VII.

The EEOC, in accordance with the Supreme Court’s decision in Harris v. Forklift Systems Inc., makes the assessment that racial discrimination is present in the workplace when the alleged discriminatory behavior creates a hostile environment.  The court in Harris stated that the standard for assessing a hostile environment requires: (1) An objectively hostile or abusive environment (that a reasonable person would find hostile or abusive), as well as (2) the victim’s subjective perception that the environment is abusive.

However, the EEOC, relying on cases that predate Harris, states in its enforcement guidance that the “reasonable person” standard should consider the perspective of the victim.  This charge to consider the perspective of the victim, while well meaning, creates two subjective factors for assessing workplace harassment where the Supreme Court clearly designed the standard to have one objective and one subjective factor.  This means that the objective meaning that society as a whole gives to symbols is not considered.

The Chilling of Speech by the Threat of Lawsuit

Why does this matter to you?  It matters because specific individuals get to determine the meaning of the symbols that you display rather than you or society as a whole.  When an individual employee gets to legally determine what is offensive, employers must take action to correct the situation or face legal consequences.  In EEOC cases, the consequences for employers found guilty of discrimination can be severe.  Companies with 15-100 employees can be charged up to $50,000 in compensatory and/or punitive damages and the number is as high as $300,000 for companies with over 500 employees.  This is in addition to paying court and attorney fees.

The fact that the EEOC is willing, at a minimum, to investigate discrimination claims based on one person’s interpretation of a symbol while disregarding the meaning that the vast majority of society’s members, of all races, ascribe to that symbol will have a chilling effect on the freedom of speech in the work place.  While freedom of speech in the workplace is already limited, it will likely be further constrained because no employer will be willing to risk the consequences of loss in an EEOC action.

In response to this situation the EEOC should revise its harassment enforcement guidelines and stop relying on cases that existed before the new standard in Harris was laid down by the Supreme Court.  The Court was aware of the previous decisions that incorporated various forms of the victim’s perspective and in a unanimous decision it deliberately chose the objective “reasonable person” standard with no victim caveats.  This change would go a long way towards providing employees with reliable standards for the freedom of speech in their work place while still providing discrimination protection to those who need it.