How Employers Should Respond to ‘Don’t Tread on Me’ Controversy

By Allen Smith, J.D. Aug 16, 2016
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​The flap over the "Gadsden flag" presents a dilemma for HR: how to respond to employees wearing the rattlesnake image and "Don't Tread on Me" phrase.

A patriotic display to one person might be racist to another. We're not talking about the Confederate flag, though—the recent controversy is over the Gadsden flag, designed during the American Revolution, with its coiled rattlesnake and "Don't Tread on Me" phrase. 

So, what should HR do when employees wear caps or shirts displaying the insignia of the Gadsden flag, now that the Equal Employment Opportunity Commission (EEOC) is investigating a claim that wearing the insignia at work is discriminatory? Should they tell workers to take these caps off or wear these shirts inside out, or do they stay at arm's length from the controversy unless a complaint is filed in their workplace? The answer depends on where, how and when the insignia is worn.

Mark Kisicki, an attorney with Ogletree Deakins in Phoenix, said, "I would counsel employers to not overreact by banning the 'Don't Tread on Me' flag—unless [the employer] is prepared to ban all historical or political symbols and speech." That said, he noted that "this case emphasizes the importance of immediately investigating any allegations of workplace harassment or racial insensitivity, regardless of whether the allegations seem unfounded or even patently silly."

Moreover, employers should be observant of their workplaces, he recommended. Special circumstances may call for banning the insignia after all. "If, for example, a workplace has recently experienced racial tension and some of the employees involved on one side or the other begin wearing 'Don't Tread on Me' caps, caution dictates that they be told to stop wearing them" at work, Kisicki said.

Complaint over Cap

In the EEOC case, a U.S. Postal Service employee complained to the commission that a co-worker's cap with the insignia was racially offensive because the designer of the flag, Christopher Gadsden, owned slaves. The employee had told management about his concerns about the cap, and the company had assured him the co-worker would be told not to wear it. But the co-worker continued to come to work wearing the cap.

The EEOC ruled in a June 3 decision that the Postal Service employee's claim must be investigated. It reached this determination even though it found "the Gadsden flag originated in the Revolutionary War in a nonracial context. Moreover, it is clear that the flag and its slogan have been used to express various nonracial sentiments, such as when it is used in the modern Tea Party political movement, guns rights activism, patriotic displays and by the military."

However, the EEOC also found that despite the insignia's historic origins and meaning, it also has been "sometimes interpreted to convey racially tinged messages in some contexts. For example, in June 2014, assailants with connections to white supremacist groups draped the bodies of two murdered police officers with the Gadsden flag during their Las Vegas shooting spree."

The commission emphasized that it was not prejudging the merits of the complaint. "Instead, we are precluding a procedural dismissal that would deprive us of evidence that would illuminate the meaning" of the co-worker's display of the symbol, it stated.

'A Matter of Civility'

Nevertheless, comments in response to online articles about the decision have lit up with extensive discussions about the EEOC's opinion, noted Christine Walters, J.D., SHRM-SCP, an independent consultant with her business, FiveL Company in Westminster, Md. She said the controversy boils down to "a matter of civility. If a co-worker tells me or my supervisor that she or he is offended by language or a symbol that is on clothing or an accessory that I wear, why would I not stop wearing it?"

One lawful reason might be because someone is expressing his or her religion. "If I wear a symbol that is indicative of my faith and someone is offended, we know that generally under Title VII [of the Civil Rights Act of 1964], the problem is more likely with the co-worker who is offended."

Sometimes colorful language can be as offensive as symbols. Walters noted the following real-world examples:

  • Two employees are joking around and, in the process, scatter each other's paperwork. One employee tells her co-worker to keep her "cotton-picking hands" off her papers. When the co-worker reports that she is offended by this race-based comment, the employee responds that she had never thought about the origin of the phrase or the racial connection that might be associated with it.
  • A manager tells the members of a team in jest that productivity really needs to increase, so they must work together or he's going to have to "crack the whip" to motivate them. An employee expresses offense to the phrase due to its racial connotations and the manager pleads ignorance.

Shifting Perceptions

"The landscape is changing quickly over things employees think are offensive, and the Gadsden flag is a good example of that," said Ted Schroeder, an attorney with Littler in Pittsburgh. He said he was skeptical this case would lead to a cause finding, saying that the threshold is low for the EEOC to say it will investigate.

However, Kisicki said he thought the decision was "seriously misguided. The EEOC is charged with investigating discrimination claims under certain federal laws and determining whether they have merit. To take a symbol that has for hundreds of years been emblematic of American ideals and treat it as possible evidence of racial discrimination or harassment that violates federal law should be offensive to every American."

"This case highlights and arguably blurs the fine line between politically correct sensitivities and illegal harassment," said Jennifer Rubin, an attorney with Mintz Levin in San Diego, San Francisco and New York City. "It would seem that line is becoming harder to draw as our society becomes more diverse and groupthink pervades social media. Human resource professionals should continue to use common sense and context when faced with these issues."

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