![\"gadsden-flag\"](\"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-content\/uploads\/sites\/8\/2016\/11\/gadsden-flag.png\")
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By John Ferris<\/a>; Staff Member (Vol. 15)<\/p>\n What is your\u00a0favorite\u00a0item\u00a0of clothing?\u00a0\u00a0Whatever\u00a0it may be, that\u00a0item\u00a0of clothing is likely something that has symbolic value to you and\u00a0it\u00a0expresses something\u00a0specific\u00a0when you wear it.\u00a0\u00a0What if you\u00a0wore\u00a0that\u00a0favorite item\u00a0of clothing\u00a0to work one day and were promptly told to go home and change because it offended one of your co-workers?\u00a0 Is that reasonable?\u00a0\u00a0Doesn\u2019t your co-worker know that your Texas A&M \u201cAggies\u201d cap doesn\u2019t have any significant offensive meaning and that no one is\u00a0even\u00a0sure\u00a0what an \u201cAggie\u201d\u00a0is anyways?<\/p>\n The short answer is that it does not matter.\u00a0\u00a0If your\u00a0co-worker perceives the symbolic meaning of your clothing to be\u00a0offensive, it\u00a0is enough to\u00a0launch\u00a0a government\u00a0investigation into the meaning of your symbol\u00a0unless\u00a0management takes\u00a0prompt\u00a0action to appease your co-worker.<\/p>\n The situation described above is\u00a0similar to\u00a0what happened\u00a0in\u00a0Shelton v. United States Postal Service<\/i><\/a>\u00a0this summer.\u00a0 In this case Mr. Shelton, who is an African-American,\u00a0claimed 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 \u201cGadsden Flag<\/a>\u201d printed on it.\u00a0 Mr.\u00a0Shelton claimed that the Flag had a racist meaning because it was associated with the\u00a0Tea Party<\/a>\u00a0movement, was\u00a0designed by a slave holder<\/a>, and had been used in a\u00a0single<\/i>\u00a0incident by a\u00a0white supremacist organization<\/a>.\u00a0\u00a0In response, the management of Mr. Shelton\u2019s local Post Office\u00a0did not require the\u00a0co-worker\u00a0to remove the cap\u00a0because they\u00a0assessed that\u00a0the Gadsden Flag\u00a0had no\u00a0significant\u00a0racial connotations.<\/p>\n The\u00a0formal\u00a0complaint was dismissed\u00a0by the Post Office after\u00a0an\u00a0internal investigation\u00a0into the matter\u00a0but reinstated by the Equal Employment Opportunity Commission (EEOC) on appeal.\u00a0 The\u00a0EEOC\u00a0is responsible for enforcing federal laws that make it illegal to discriminate<\/a>\u00a0against an employee because of the person’s race, color, religion, sex, national origin, age, disability,\u00a0or genetic information.\u00a0\u00a0The EEOC has the authority to investigate charges of discrimination against\u00a0employers who are covered by\u00a0Title VII<\/a>\u00a0(all federal agencies\u00a0and most private employers with more than fifteen employees\u00a0are covered).<\/p>\n The EEOC\u2019s Flawed Method<\/b><\/p>\n While the EEOC\u2019s decision to go forward with the case does not mean Mr. Shelton\u2019s claim will be successful, it does mean\u00a0that\u00a0the EEOC\u00a0thinks\u00a0Mr. Shelton\u2019s\u00a0claim\u00a0has potential merit.\u00a0 The reason the EEOC\u00a0made this assertion\u00a0is because of the standard it uses for assessing\u00a0racial harassment\u00a0violations\u00a0of Title VII.<\/p>\n The EEOC, in accordance with the Supreme Court\u2019s decision in\u00a0Harris v. Forklift<\/i>\u00a0Systems Inc<\/i><\/a>.<\/i>,\u00a0makes the\u00a0assessment\u00a0that racial discrimination is present in the workplace when the alleged discriminatory behavior creates a hostile environment.\u00a0 The court in Harris stated that the standard for assessing\u00a0a hostile environment\u00a0requires:\u00a0(1) An\u00a0objectively<\/i>\u00a0hostile or abusive\u00a0environment (that a reasonable person would find hostile or abusive),\u00a0as\u00a0well as\u00a0(2)\u00a0the victim’s\u00a0subjective<\/i>\u00a0perception that the environment is abusive.<\/p>\n However,\u00a0the EEOC, relying on cases that predate Harris,\u00a0states\u00a0in its\u00a0enforcement guidance<\/a>\u00a0that the\u00a0\u201creasonable person\u201d standard should consider the perspective\u00a0of\u00a0the victim.\u00a0\u00a0This charge to consider the perspective of the victim, while well meaning,\u00a0creates\u00a0two subjective<\/i>\u00a0factors for assessing workplace harassment where the Supreme Court clearly designed the standard to have\u00a0one objective<\/i>\u00a0and\u00a0one subjective<\/i>\u00a0factor.\u00a0 This means that the objective meaning that society as a whole gives to symbols is not considered.<\/p>\n The\u00a0<\/b>Chilling<\/b>\u00a0of Speech<\/b>\u00a0by the Threat of Lawsuit<\/b><\/p>\n Why does this matter to you?\u00a0\u00a0It matters because\u00a0specific\u00a0individuals get to determine the meaning of the symbols that you display\u00a0rather than you or society as a whole.\u00a0\u00a0When\u00a0an individual employee\u00a0gets\u00a0to legally determine what is offensive,\u00a0employers must take action to correct the situation or face legal\u00a0consequences.\u00a0\u00a0In EEOC cases,\u00a0the\u00a0consequences for employers<\/a>\u00a0found guilty of discrimination can be severe.\u00a0 Companies with 15-100 employees can be charged up to $50,000 in compensatory and\/or\u00a0punitive\u00a0damages and the number is as high as $300,000 for companies with over 500 employees.\u00a0 This is in addition to paying court and attorney fees.<\/p>\n The fact that the EEOC is willing, at a minimum, to investigate discrimination claims based on\u00a0one person\u2019s interpretation of a symbol\u00a0while disregarding the meaning that the vast majority of society\u2019s members, of all races, ascribe to that symbol will have a chilling effect on the freedom of speech in the work place.\u00a0 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.<\/p>\n In response to this situation the EEOC should revise its\u00a0harassment\u00a0enforcement guidelines and stop relying on cases that existed before the new standard in\u00a0Harris<\/i>\u00a0was laid down by the Supreme Court.\u00a0 The Court was aware of the previous decisions that incorporated various forms of the victim\u2019s perspective and\u00a0in a unanimous decision\u00a0it deliberately chose the objective \u201creasonable person\u201d standard with no victim caveats.\u00a0 This\u00a0change\u00a0would go a long way towards providing employees with reliable standards for the freedom of speech in their work place\u00a0while still providing discrimination protection to those who need it.<\/p>\n","protected":false},"excerpt":{"rendered":" By John Ferris; Staff Member (Vol. 15) What is your\u00a0favorite\u00a0item\u00a0of clothing?\u00a0\u00a0Whatever\u00a0it may be, that\u00a0item\u00a0of clothing is likely something that has symbolic value to you and\u00a0it\u00a0expresses something\u00a0specific\u00a0when you wear it.\u00a0\u00a0What if you\u00a0wore\u00a0that\u00a0favorite item\u00a0of clothing\u00a0to work one day and were promptly told to go home and change because it offended one of your co-workers?\u00a0 Is that reasonable?\u00a0\u00a0Doesn\u2019t …<\/a><\/p>\n","protected":false},"author":10,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4],"tags":[137,330],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/902"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=902"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/902\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=902"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=902"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=902"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}