Displaying your "Don't Tread on Me" flag may now be a punishable offense

This item popped up the other day at The Volokh Conspiracy and it’s a rather sad sign of the times. The dispute in question deals with a “racial harassment” case recently heard by the Equal Employment Opportunity Commission (EEOC) earlier this year, named Shelton D. [pseudonym] v. Brennan.

On January 8, 2014, Complainant filed a formal complaint in which he alleged that the Agency subjected him to discrimination on the basis of race (African American) and in reprisal for prior EEO activity when, starting in the fall of 2013, a coworker (C1) repeatedly wore a cap to work with an insignia of the Gadsden Flag, which depicts a coiled rattlesnake and the phrase “Don’t Tread on Me.”

Complainant stated that he found the cap to be racially offensive to African Americans because the flag was designed by Christopher Gadsden, a “slave trader & owner of slaves.” Complainant also alleged that he complained about the cap to management; however, although management assured him C1 would be told not to wear the cap, C1 continued to come to work wearing the offensive cap.

I’ll just start here by reminding you of something I’ve been warning everyone about for the past two years: You didn’t really think they were going to stop with the Confederate Battle Flag did you?

As Volokh points out, there is no indication that the accused worker ever did or said anything to the complainant which could be construed as racially insensitive. He simply wore a cap with the “Don’t Tread on Me” flag on it. For the EEOC to even take up the case provides a signal that we have entered an era where nothing actually has to be racist to get you in trouble. All it takes is for someone else to decide that it looks racist to them. This is apparently sufficient to complete the offense in the eyes of the government. Because Gadsden (the flag’s originator) lived in a time when slave ownership was still legal and broadly practiced, that makes the flag a racist symbol centuries later. Ian Tuttle at National Review notes the flaw in this logic.

Other American slave owners include Benjamin Franklin. Is it racial harassment to wear bifocals?

It is by the complainant’s logic. But it goes further. Yes, it’s likely that Christopher Gadsden had racial opinions that would be noxious, to put it mildly, in 2016. But it’s ridiculous to judge a man born to the 18th century by the prevailing morality of our own. Some context is advisable.

Volokh goes on to note the real problem this case highlights and it goes well beyond the peril faced by the worker wearing the cap. Employers, both federal and private, have to make decisions based on these types of complaints. Will they continue to squelch any and all first amendment rights in the workplace (which are admittedly limited to begin with under law) every time someone feigns offense at anything at all? Perhaps workers can be required to all wear bland, tan uniforms with UPC bar codes on the sleeves. That may be their only choice if they want to avoid lawsuits and damage to their operations.

It’s a brave new world to be sure, and the Social Justice Warriors are running the game. As long as the government continues to tolerate this nonsense things are only going to go downhill from here.