EEOC Clarifies 'Don't Tread on Me' Gadsden Flag Ruling

Author: Marta Moakley, XpertHR Legal Editor

August 12, 2016

Employers should prepare for the possibility that the Gadsden Flag, which shows the words "Don't Tread on Me" below a coiled rattlesnake, could be considered a racist symbol by the Equal Employment Opportunity Commission (EEOC).

The EEOC has issued a clarification of its Shelton D. v. U.S. Postal Service case, in which the EEOC ordered a federal agency to investigate a complainant's allegations regarding racial harassment. The resolution of the complaint would center on whether the Gadsden Flag is a racist symbol.

Specifically, an employee of the US Postal Service filed a formal complaint, in which he alleged that the agency subjected him to racial discrimination and retaliation when a co-worker repeatedly wore a cap with an insignia of the Gadsden Flag. The employee found the flag offensive because it was designed by Christopher Gadsden, a "slave trader & owner of slaves."

The Gadsden Flag originated during the Revolutionary War and has been associated with the US Navy and Benjamin Franklin. The flag has been used throughout the nation's history, and recently has been popular with the Tea Party movement.

The EEOC clarified that its ruling did not:

  • Resolve the case on the merits;
  • Determine that the Gadsden Flag was racist or discriminatory; and
  • Did not ban the flag.

However, in its decision, the EEOC did state that "whatever the historic origins and meaning of the symbol, [the flag] has since been sometimes interpreted to convey racially-tinged messages in some context." The EEOC went on to state that in "light of the ambiguity in the current meaning of this symbol," the agency ordered that the complainant's claim be investigated.

The EEOC seeks to clarify that:

  • The complainant was not a private-sector employer; and
  • The EEOC proceedings are not conducted in secret.

Nevertheless, private employers should take note of the developments in this case when investigating allegations of racial harassment.