The First Amendment generally protects even offensive speech, so if you wish to wear a t-shirt celebrating a bloodthirsty thug like Mao, Stalin, or Che Guevara, you can do so without being punished by the government. But you can’t wear a Confederate flag t-shirt to work, without risking an investigation by the federal Equal Employment Opportunity Commission (EEOC), under the EEOC’s February 8 ruling in Dawson v. Donahoe, which reversed an agency’s dismissal of a racial-harassment complaint a Postal employee filed over co-workers repeatedly wearing confederate flag t-shirts.
Despite the odious nature of the Confederacy, the Confederate flag is speech protected by the First Amendment. Thus, federal courts ruled that the Department of Motor Vehicles (DMV) could not deny the Sons of Confederate Veterans a “vanity” license plate bearing a confederate flag (while issuing other controversial license plates), because to do so would infringe their right to free speech, in violation of the First Amendment. (See Sons of Confederate Veterans v. Glendening, 954 F.Supp. 1099 (D.Md. 1997); Sons of Confederate Veterans v. Va. Dep’t of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002).) But now, the EEOC is suggesting that mere repeated exposure to the Confederate flag is illegal, even though the federal courts’ First Amendment rulings in the Confederate Veterans cases presumably require such exposure by DMV employees. Is the EEOC effectively thumbing its nose at the federal courts?
Although the EEOC’s ruling involved a federal agency — the Postal Service — its reasoning would apply equally to private sector employers, who likewise are forbidden to allow “racial harassment” of their employees through a “racially hostile work environment” (and can be forced to pay hundreds of thousands of dollars in damages and attorneys fees over “harassing” conduct or speech by employees that they supposedly should have known about and prevented).
The EEOC is engaged in statutory overreaching, in addition to First Amendment violations. It is dubious as a statutory matter whether the “harassment” the EEOC alleges was “based on race,” as the Title VII statute requires, since the t-shirts were not aimed at the complainant based on the complainant’s race. Logically speaking, comments are not “racial harassment” unless they target a victim based on her race, and are severe or pervasive, as one federal appeals court ruled in Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005). T-shirts do not target you merely because you are offended by them.
Putting aside statutory objections, there is also a First Amendment problem with awarding damages for such speech, especially since it is not aimed at the complainant. For example, a federal appeals court dismissed racial-harassment charges over a professor’s racially charged immigration emails, since they were not aimed at any specific Hispanic plaintiff who sued over them. (See Rodriguez v. Maricopa Community College, 605 F.3d 703 (9th Cir. 2010).) Similarly, a court overturned a university’s discipline of fraternity members for a racist skit that allegedly fostered a “hostile and distracting learning environment” for blacks and women who witnessed or learned about it. (See Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993).)
Moreover, the EEOC should have to show discriminatory intent or targeting to award any monetary damages, based on the statutory language of 42 U.S.C. 1981a, as I explain at this link. Getting rid of such statutory limits on liability for “harassment” makes “harassment” law unconstitutionally vague, as I discuss at this link.
In addition to ignoring the statutory requirement that speech or conduct be “based on race” to constitute racial harassment, the EEOC is also paying only lip service to the legal requirement laid down by the Supreme Court that such conduct be “severe or pervasive” enough to create a racially “hostile” environment for a “reasonable person.” The Confederacy has been so romanticized in the South that those who display the Confederate flag typically do so out of a combination of ignorance and regional pride, rather than racial hostility: due to this romanticization and historical revisionism, “The Confederate Flag to many Southerners stands for a united agrarian heritage, genteel manners, individualism, and self-sufficiency.”
While this interpretation is rooted in historical ignorance (contrary to what many Southerners believe, states in the Deep South like South Carolina seceded from the union over slavery and nothing else — not race-neutral reasons like the tariff or centralization, as many deluded Southerners think), this interpretation is widely understood, and few people are unaware of how many Southerners romanticize the motivations of their ancestors in fighting for the Confederacy. Thus, a reasonable observer would typically perceive such displays as reflecting ignorance or historical revisionism, rather than racial hostility or a “racially hostile” environment. (At the University of Virginia, several of my hallmates displayed confederate flags in their dormitory rooms, even though they had black or non-white girlfriends or non-white roommates. No one perceived this as a sign of racial hostility, as opposed to redneck revisionism. This was so even though the campus was otherwise so racially sensitive that student newspapers and the student government expressed outrage over a fraternity flyer containing the term “nega-babe,” which was erroneously viewed as a racial slur, when it was in fact frat-boy lingo for unattractive females regardless of race.) The fact that these displays are the product of ignorance and regional affinity, rather than malice, makes them much less offensive: As Justice Oliver Wendell Holmes once observed, even a dog knows the difference between being stumbled over and being kicked. And federal law only prohibits work environments pervaded by racial hostility, not ignorance.
For the EEOC to ban speech because it offends those who overhear it would have a negative effect on many creative industries, such as Hollywood and the production of TV sitcoms. In Lyle v. Warner Brothers Television Productions, 132 P.3d 211 (2006), a writer’s assistant brought a sexual harassment lawsuit over sexual jokes told by writers of the sitcom “Friends,” which she witnessed and was offended by, even though the jokes were part of the creative process, and milder versions of some of the jokes ended up being broadcast in the TV show itself. The California Supreme Court dismissed her lawsuit largely because it found that the jokes were not aimed at her “based on” her sex, the very statutory limit that the EEOC has now effectively disregarded in Dawson v. Donohoe. (One of the California Supreme Court Justices, Ming Chin, wrote a concurring opinion noting that the state constitution’s free-speech guarantee would be violated by imposing damages on the employer for such speech.)
Although private employers are free to restrict the speech of their employees, the government cannot make them restrict such speech if it is constitutionally protected, since the First Amendment limits the government’s power to restrict speech either directly or indirectly. See Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005); Korb v. Lehman, 919 F.2d 243 (4th Cir. 1991). Similarly, government officials cannot force a private employer to fire an employee for discriminatory reasons, or in violation of due process. See Truax v. Raich, 239 U.S. 33 (1915); Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir.1987).
As the Supreme Court observed in the Truax case, “The fact that the employment is at the will of the parties, respectively, does not make it one at the will of others. The employee has manifest interest in the freedom of the employer to exercise his judgment without illegal interference or compulsion.” A damage award over speech violates the First Amendment unless the speech falls into an unprotected category, such as defamation, as the Supreme Court’s decisions in Snyder v. Phelps (2011) and New York Times v. Sullivan (1964) demonstrate.
An investigation of speech by a civil-rights agency like the EEOC can also violate the First Amendment, as a federal appeals court made clear in White v. Lee, 227 F.3d 1214 (9th Cir. 2000). That case held civil-rights officials individually liable for investigating citizens who spoke out against a housing complex, despite the officials’ belief that such criticism violated the federal Fair Housing Act. The court held that such speech was clearly protected by the First Amendment, even if it had the effect of making housing unavailable to members of classes protected by federal civil rights law. The investigation violated the First Amendment even though it led to no sanctions or fines, because its protracted nature chilled speech.