Employment Law Daily EEOC Gadsden Flag ruling did not find flag racist or discriminatory
Wednesday, August 10, 2016

EEOC Gadsden Flag ruling did not find flag racist or discriminatory

In an apparent effort to squelch any further miscommunication, the EEOC has issued a "What You Should Know" resource document about its recent ruling involving a U.S. Postal worker who complained about a coworker’s continued display of a Gadsden Flag on his cap at work. The EEOC stressed that its ruling in Complainant v. U.S. Postal Service, EEOC Appeal No. 0120141334 (June 20, 2014), addressed only the procedural issue of whether the employee’s allegations of discrimination should be dismissed or investigated—it was not a decision on the merits, did not determine that the Gadsden Flag was racist or discriminatory, and did not ban the flag. A note about the flag. The Gadsden Flag, with a yellow field on which appears a coiled rattlesnake ready to strike and the inscription "DONT TREAD ON ME," was designed during the American Revolution by Christopher Gadsden, an American general and statesman. Recently, it has been used as a symbol of disagreement with the government and has been strongly associated with right-wing politics and the Tea Party. Displayed on coworker’s cap. The flag became an issue at the USPS when a maintenance mechanic in Denver filed a complaint base on race (African American) and reprisal. He alleged that starting in fall 2013, a coworker repeatedly wore to work a cap displaying a Gadsden Flag. The coworker continued to wear the cap, even though management had assured the employee that they would tell the coworker not to wear the cap. On September 2, 2013, a coworker photographed him on the work room floor without the employee’s consent. Ordered to investigate. At the first step of the federal EEO decision-making process, USPS dismissed the employee’s complaint for failure to state a cognizable claim of discrimination. However, on June 20, 2014, the EEOC’s Office of Federal Operations (OFO) reversed the USPS’ dismissal, having determined that the employee had raised a cognizable claim of harassment. The EEOC also ordered the USPS to investigate the claim. Reconsideration requested. The USPS asked the OFO to reconsider its decision. The EEOC noted that the legal standard for granting a request for reconsideration is whether the previous decision involved a clearly erroneous interpretation of material fact or law. The USPS argued that the EEOC’s earlier decision clearly erred because the Gadsden Flag and its slogan do not have any racial connotations. What did the flag mean here? Upon review, the OFO determined that the USPS did not meet its legal burden of demonstrating clear error. The EEOC’s decision merely returned the matter back to the USPS to investigate the allegations. The EEOC emphasized that "we are not prejudging the merits of Complainant's complaint. Instead, we are precluding a procedural dismissal that would deprive us of evidence that would illuminate the meaning conveyed by . . . the display of the symbol." The EEOC noted that while the Gadsden Flag originated in a non-racial context, it has since been "interpreted to convey racially-tinged messages in some contexts." The EEOC cited its use by persons associated with white-supremacist groups who used the flag to drape the bodies of two police officers they had just murdered, and its display at a Connecticut fire house that was met with protests by African-American firefighters, ultimately resulting in the flag's removal. The EEOC underscored the fact that it did not find that the Gadsden Flag in fact is a racist symbol. Instead, the EEOC found only that the complaint met the legal standard to state a claim under Title VII, and therefore should have been investigated by the USPS rather than dismissed. Stating a claim. Among other legal standards related to the federal EEO process, the EEOC noted that as to complaints alleging actions that may amount to unlawful harassment, the Commission has long held that a complaint is subject to dismissal for failure to state a claim only where "it appears beyond doubt that the complainant can prove no set of facts in support of the claim that would entitle the complainant to relief"—i.e., even if the allegations are taken as true, they do not state a claim upon which relief may be granted. Absent the benefit of an investigation, it is impossible to state that this employee cannot possibly prove a set of facts to support his claim, the EEOC pointed out. The Commission accordingly determined that his allegations are sufficient to state a claim. The USPS will now undertake to make a determination on the merits of the complaint following an investigation. Clearing up misinformation. In its "What You Should Know" resource document, the EEOC also made these points in an effort to clear up misinformation about the case by media outlets. First, the EEOC cited erroneous reports indicating that the complainant in this matter is employed by a private-sector employer. The complainant is employed by the USPS, a federal agency. The EEOC also noted that there have been erroneous reports that EEOC proceedings are conducted in secret, and that EEOC decisions are not made public. Under the federal-sector EEO complaint process (found at 29 CFR Part 1614), the investigative portion of the proceedings is confidential, up to and including the decision of an EEOC Administrative Judge (AJ) and a Final Agency Decision. If either party appeals from an AJ Decision or a Final Agency Decision, an appellate decision is issued by the Commission. Appellate decisions are a matter of public record and are available on the EEOC’s website. Note that the Commission uses an alias when it publishes federal sector decisions to protect the complainant’s privacy.

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