The Equal Employment Opportunity Commission (EEOC) has taken the position that Confederate flag displays in the workplace constitute evidence of a racially hostile work environment; some courts (but not all) have agreed. In light of these developments and the public debates regarding the Confederate flag and other (potentially) offensive symbols, how should an employer respond? We advise employers to do the following:
- adopt a policy barring employees/invitees from wearing or displaying, while on company property, any symbols that are designed to, or have the effect of, harassing, demeaning, intimidating, or disparaging any legally protected minority; and,
- consider the Confederate flag as such a symbol.
While we recognize the "slippery slope" this policy may create, we believe it to be the wiser approach.
After the rioting in South Carolina last spring, concerns have grown over the display of the Confederate flag not merely in public places but also on the property of businesses. Employers face the issue of whether they can (or should) prohibit employees from displaying those flags either on automobiles parked on company property, or inside of the workplace, such as on clothing, lunch boxes, tool boxes, etc. Some African American employees understandably consider the Confederate flag as contributing to a "hostile work environment" – meant to demean, intimidate, or harass them on the basis of their race. Of course, many (perhaps most) who display the Confederate flag espouse doing so not for inappropriate reasons but rather for reasons of heritage.
Some private employers have adopted policies to prohibit such displays. Some denounce such policies as chilling "free speech," a right protected by the U.S. Constitution. Yet, this argument does not apply. Private employers are not subject to the Constitution's limitations on the "state" or "state actors." Nonetheless, employer policies in this regard sometimes seem to "stir up more snakes than it kills."
So, how should an employer respond?
The EEOC takes the position - and some courts have accepted the argument - that displaying the Confederate flag constitutes evidence of a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. Other courts have been reluctant to find the display of the Confederate flag in the workplace as sufficient to constitute a hostile work environment claim absent other, more egregious conduct of a racially hostile nature.
Some employers have expressed concern that policies aimed at banning "offensive" symbols, such as the Confederate flag, could mandate ridding the workplace of a host of symbols, based solely on a vocal group claiming to take offense. Might some complain to be offended by the "fish symbol" displayed by some Christians on their automobiles? Or, what about bumper stickers for a particular political candidate or party? Or, stating a position on abortion or other "culture war" issues?
We believe those concerns do not inform employers to avoid policies barring displays designed to harass, or intimidate, or demean, or disparage. Rather, these concerns inform employers to be cautious in the enforcement of such a policy. And, the symbols associated with religious or political views do not have the same history of association with racial bigotry and oppression as the Confederate flag.
Thus, in our view, the wiser course for a company is to adopt a policy as noted above, namely a policy which
- prohibits employees/invitees from wearing or displaying, while on company property, any symbols that are designed to, or have the effect of, harassing, demeaning, intimidating, or disparaging any legally protected minority;
- and consider the Confederate flag as such a symbol.
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