The erosion of America’s public square continues at an alarming rate. This week brings news that the Equal Employment Opportunity Commission (EEOC) is seriously entertaining a claim that a man wearing a hat with the image of a Gadsden flag on it—that’s the famous coiled snake emblazoned with the words “Don’t Tread On Me,” flown during the American Revolution—constitutes workplace harassment. According to the EEOC decision on the matter:
The EEOC ultimately punts on the matter, concluding, “Complainant’s claim must be investigated to determine the specific context in which [the coworker] displayed the symbol in the workplace,” though nothing in the complaint indicates that the worker wearing the allegedly offensive cap did or said anything offensive to the complainant.
Already, the EEOC has concluded that the display of Confederate flags can create a hostile work environment. That decision, while understandably less objectionable than the absurdity of declaring a symbol of the American Revolution racist, was still one that had many free speech advocates fretting that the EEOC was putting a foot down the slippery slope. And here we are.
Of course, the EEOC doesn’t have any jurisdiction to rewrite the First Amendment. What it can do is perhaps more insidious. Once the EEOC sets the rules for workplace harassment, it opens up employers to massive legal liability if they don’t follow the rules.
Now think about the implications this has for the democratic process. “Say someone wears ‘Trump/Pence 2016’ gear in the workplace, or displays a bumper sticker on his car in the work parking lot, or displays such a sign on his cubicle wall, or just says on some occasions that he’s voting for Trump. . . . In ‘context,’ a coworker complains, such speech conveys a message ‘tinged’ with racial or religious hostility, or is racially or religiously ‘insensitive,’ ” suggests law professor Eugene Volokh. “The coworker threatens to sue. Again, say you are an employer facing such a threat. Would you feel pressured by the risk of liability to restrict the pro Trump speech?”
If the EEOC continues down the path it’s on, it’s easy to imagine a not-too-distant future where any political speech that doesn’t reflect the progressive orthodoxy can be defined as harassment. We’d warn about the nasty unintended consequences of the EEOC meddling in free speech, but we suspect that for a great many progressives, shutting down any discussion of politically incorrect ideas is, in fact, the intended consequence.
