In Shelton D. v. U.S. Postal Service, the Equal Employment Opportunity Commission (EEOC) upheld a 2014 decision by its Office of Federal Operations, which held that a co-worker continuing to wear a hat with the phrase “Don’t Tread on Me” was a cognizable claim of harassment that must be investigated by the employer.
The original complaint was filed in January of 2014 by an African-American worker for the United States Postal Service (USPS) who alleged that USPS subjected him to discrimination when, even after receiving assurances from management that the conduct would stop, a co-worker continued to wear a hat to work with an insignia of the Gadsden Flag, which portrays a coiled rattlesnake and the words “Don’t Tread on Me.” The complainant found the hat to be racially offensive because the flag was designed by Christopher Gadsen, a “slave trader & owner of slaves.”
Shortly after the complaint was filed, USPS dismissed it for failure to state a cognizable claim of discrimination. However, the EEOC Office of Federal Operations then ordered that USPS investigate the claim, holding that the employee did raise a cognizable harassment claim. USPS requested that the EEOC reconsider this decision.
The EEOC’s decision, while acknowledging that the flag was created in a “non-racial context” and is still used in some similar ways today, observed that the flag had also recently been used in racially-tinged situations, by white supremacists for example, and obviously offended the complainant. Due to the “ambiguity in the current meaning of this symbol,” the EEOC held that USPS must investigate the complaint to “determine the specific context in which” the co-worker displayed the symbol.
The decision didn’t pass judgment on the actual merits of the complaint, and also noted that the employer “must view the allegedly harassing incident(s) in the light most favorable to Complainant” when determining whether an actionable claim of harassment has occurred.
This ruling urges employers to seriously consider all complaints of discrimination and harassment, as should always be the case. Please feel free to contact any FHKAD attorney with any questions regarding the impact of this ruling or any other matter.