The Volokh Conspiracy

Illegal ‘hostile work environment’ harassment for co-workers to wear Confederate flag T-shirts

By Eugene Volokh August 28

The recent Speech at work complaining about alleged anti-white bias in the context of the Trayvon Martin matter = ‘hostile work environment’ harassment post reminded me of these two cases that I came across a few months ago. From Dawson v. Donahoe, 2012 WL 524010 (EEOC Feb. 8, 2012):

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency’s Post Office facility in Dothan, Alabama.
On July 21, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity when, on various occasions, employees wore t-shirts emblazoned with the Confederate flag and management took no action to deter them….
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 [of] the employees he complained about because the employee has started parking his car off Agency properly 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 isolated incidents may not create a direct and personal deprivation sufficient to render an individual aggrieved, the Commission has held that, under certain circumstances, a limited number of highly offensive slurs related to a federal employee’s race may in fact state a claim or support a finding of discrimination under Title VII. Moreover, Complainant has alleged that it took the Postmaster nearly two months to finally take action to stop his coworkers from wearing the offensive t-shirts.

Then, from a later opinion in the same administrative litigation (EEOC Nov. 1, 2013):

It is well-settled that harassment based on an individual’s race is actionable. In order to establish a claim of harassment, the complainant must show that: (1) he belongs to the statutorily protected class; (2) he was subjected to unwelcome conduct related to his membership in that class; (3) the harassment complained of was based on race; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer.
The [Administrative Judge] found that Complainant established elements (1) – (4) of his case of harassment based on race. The Agency adopted the AJ’s findings. As such, the only issue before the Commission is whether Complainant established the 5th element of his case of harassment based on his race — whether there is basis for imputing liability to the Agency.
In the case of co-worker harassment, an Agency is responsible for acts of harassment in the workplace where the Agency (or its agents) knew or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps.
The AJ determined, and the undisputed evidence of record supports, that two clerks working in Complainant’s workplace (“Clerk 1 and 2”; both Caucasian) wore t-shirts to work featuring the confederate flag on August 29, 2010; November 15, 2010; January 24, 2011; January 31, 2011; February 14, 2011; February 28, 2011; March 12, 2011; March 25, 2011; March 26, 2011; March 29, 2011; April 7, 2011; April 20, 2011; April 25, 2011; and May 3, 2011.
On March 15, 2011, the Union President, on behalf of Complainant, informed the Postmaster (Caucasian) that “some employees” found the t-shirts offensive and requested that management take immediate action to prohibit these t-shirts in the workplace. The Postmaster claims he then directed a subordinate supervisor to conduct a stand-up talk for all employees concerning workplace attire. While it is unclear when this talk occurred, it is undisputed that there was no mention of Confederate flag symbols. Instead, employees were told not to wear revealing clothing or clothing with “political” messages. In his affidavit made during the investigation, the Postmaster specifically confirms that employees were never instructed not to wear or display images of the Confederate flag.
On April 18, 2011, the Union President followed up with a letter to the Postmaster that was hand-delivered by an agency employee. A statement from that employee indicates that the Postmaster opened the letter in his presence and asked who was complaining about the t-shirts. Clerk 1 was also in the Postmaster’s office at the time, wearing a t-shirt featuring the Confederate flag on the back. The Postmaster, according to the witness, asked Clerk 1 to turn around and then said, “there is nothing wrong with this [shirt].” The Postmaster then asked the witness if Complainant was the one complaining about the shirts. In his affidavit taken during the investigation, the Postmaster essentially confirms the correctness of the witness’ account. He said that he remembered saying that he was not bothered by Clerk 1′s shirt and did not find it to be “political” and was “not certain what rights [Clerk 1 had] to wear the shirt.”
On May 3, 2011, the same day Complainant filed a grievance over the Confederate shirts, the Postmaster sent Clerk 1, who was wearing a Confederate flag shirt, home to change. The record shows that Clerk 1 also later filed a grievance over being sent home. Records from that grievance show that matter was settled by paying Clerk 1 for the time he was sent home because he had not previously been instructed that wearing Confederate symbols was prohibited.
Based on our review of the record, we find that the AJ erred as a matter of law in determining that despite finding Complainant was subjected to racial harassment, the Agency was not liable because management took immediate and appropriate corrective action. As noted in the above recitation of the undisputed evidence, management failed to take any action to prohibit the wearing or displaying of the Confederate flag when it first was notified of the concern in March 2011. While the AJ pointed to a stand-up talk on work attire as a corrective step, the evidence clearly establishes that clothing with Confederate symbols was not discussed at this talk. In fact, the Postmaster expressly concedes employees were never instructed not to wear or display images of the Confederate flag.
Moreover, the evidence shows that the Postmaster, in fact, exacerbated the situation in mid-April 2011, upon receiving a follow-up complaint about the Confederate flag shirts, by examining Clerk 1, who was wearing the shirt, and letting him know, as well as another witness, that there was “nothing wrong” with wearing the shirt. In fact, the Postmaster took no action to address the issue for nearly two months, until prompted by Complainant filing a union grievance over the matter in May 2011. It was only at this point that the Postmaster sent Clerk 1 home to change. Based on this evidence, we conclude that the Agency has failed to meet its burden of establishing its affirmative defense against liability in this matter. Accordingly, we reverse the AJ’s conclusion to the contrary. As such, we conclude that Complainant has established that he was subjected to unlawful harassment based on race and the Agency is liable for the harassment.

Note that there’s no indication here of any other bad behavior that helped create the hostile work environment, or any accusation that the coworkers were somehow targeting the T-shirts to this particular employee. Indeed, a federal government presentation characterized the incident simply as,

EEOC finds hostile work environment on basis of race (African-American) when co-workers wear shirts featuring the Confederate flag several times a month.
Agency was aware of the activity but failed to take immediate and appropriate corrective action, and was therefore found liable.

(See also this similar summary, from a federal government publication, titled “Confederate Symbols are Harassment says EEOC.”)
Moreover, it’s clear that this wasn’t just a government employer choosing what speech to restrict for morale reasons — it was the EEOC concluding, as a matter of law, that the speech constituted “hostile work environment harassment,” which is legally prohibited in private workplaces as well as federal government workplaces. The message from the EEOC seems pretty clear: Coworkers’ repeatedly displaying the Confederate flag can create legal liability, because of the viewpoint that the flag supposedly represents.
Even setting aside the debate about how the flag should be understood (and I am certainly no fan of Confederate symbols myself), the EEOC is treating harassment law here as restricting political speech based on its viewpoint. Unsurprising, given how broadly harassment law has been interpreted (both by government officials and by reasonable employers that are trying to avoid liability). But still unconstitutional, I think, for reasons I give here.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.