Thursday, May 24, 2012

EEOC: Confederate Flag = Hostile Work Environment?

In Dawson v. Donahoe (opinion here), the EEOC recently held that employees wearing t-shirts with Confederate flags may constitute a hostile work environment:
In this case, Complainant has alleged that he notified the Postmaster as early as March 2011 of employees repeatedly wearing Confederate flag t-shirts to work, but it was not until May 2011, that the Postmaster finally instructed the supervisor to start sending the employees home to change. Complainant argues that the Postmaster "procrastinated in taking action on my complaint" and that he filed the complaint, in part, because of the Postmaster’s "lack of concern for my feelings associated with this matter." Complainant explained that he was offended by the t-shirts because he saw the Confederate flag as a symbol of racism that evoked the history of slavery. Complainant also alleged that he is now fearful of one the employees he complained about because the employee has started parking his car off Agency properly [sic property?] and Complainant believes he might have a weapon in his car.
Based on the circumstances alleged by Complainant, we conclude that he has stated a viable claim of discriminatory harassment which requires further investigation.
While the EEOC opinion addresses the requirement that the conduct be subjectively offensive, it doesn't really touch on whether the Confederate flag is objectively offensive (aside from using the phrase "offensive t-shirts" and the implication that it must be objectively offensive if there is a valid hostile work environment claim here).

Over at Volokh Conspiracy, Eugene Volokh raises some First Amendment concerns about the ruling.