Tuesday, August 23, 2016

Is Wearing a “Don’t Tread on Me” Cap a Form of Racial Harassment?

“Don’t Tread on Me.” Those words became a rallying cry of the American Revolution, immortalized by the Gadsden flag, pictured to the right. “Don’t Tread on Me” has come to symbolize resistance to tyranny, the rallying cry of freedom-loving revolutionaries fighting an oppressive colonial overlord. 

It is somewhat ironic, then, that the same government that used “Don’t Tread on Me” as a justification for its foundation and existence may now outlaw this slogan from the workplace. In a decision by the Equal Employment Opportunity Commission (EEOC), the agency which enforces federal employment laws, “Don’t Tread on Me” might constitute a racially insensitive slogan, and employers who permit employees to wear clothing with this slogan may be subject to a racial harassment lawsuit. .

Recently, a U.S. Postal Service employee filed a complaint with the EEOC alleging that he was the victim of racial harassment because a fellow employee wore a hat that contained the “Don’t Tread on Me” slogan. Although the employee told his employer that he found the slogan to be racially insensitive, his employer failed to stop the employee from wearing it. The EEOC held that wearing this “offensive cap” could constitute racial harassment, and therefore has begun to investigate the employee’s complaint. 

One troubling aspect of this decision is that it might subject employers to liability for racial harassment based on the subject opinion of an employee. It seems as though the EEOC is endorsing the position that apparently objective images and slogans could constitute racial harassment just because an employee says that they do. How can an employer develop any coherent policy against racial harassment in such an environment? 

As we have discussed, the EEOC has become extremely aggressive in its interpretation and enforcement of federal employment laws, often reinterpreting these laws to push its agenda. The result of these efforts has been a dramatic increase in the number of fines and lawsuits against employers, leading to a record haul of $525 million for the agency last year. Whether or not employers agree with the EEOC’s aggressive posture, they need to be cognizant of it, and should take efforts to avoid the EEOC’s wrath. Contact us for information about how to do so.