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Another Bite Taken Out Of The Free Speech Apple.

The Equal Opportunity Employment Commission (EEOC) – those pesky un-elected and non-accountable bureaucrats – have struck again. A decision by the EEOC in a seemingly benign ruling over t-shirts in the workplace may have long term lasting effects on free speech.

The case is Dawson v. Donahoe.

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency’s Post Office facility in Dothan, Alabama.

On July 21, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity when, on various occasions, employees wore t-shirts emblazoned with the Confederate flag and management took no action to deter them.

Initially, the EEOC ruled the case could not go forward, saying:

The Agency dismissed the claim for failure to state a claim, finding that Complainant was not aggrieved and that the actions alleged were not so severe as to state a claim of hostile work environment based on race or reprisal.

Earl W. Dawson, the Complainant, filed an appeal to the EEOC and now the EEOC has said his discrimination complaint can go forward.

Accordingly, for the reasons stated above, the Agency’s dismissal is REVERSED and the complaint is REMANDED to the Agency for further processing pursuant to the following Order.

The question one has to ask is “why?” What changed the EEOC’s mind? The EEOC gives some woefully weak reasoning when it restates the case within the decision:

In this case, Complainant has alleged that he notified the Postmaster as early as March 2011 of employees repeatedly wearing Confederate flag t-shirts to work, but it was not until May 2011, that the Postmaster finally instructed the supervisor to start sending the employees home to change. Complainant argues that the Postmaster “procrastinated in taking action on my complaint” and that he filed the complaint, in part, because of the Postmaster’s “lack of concern for my feelings associated with this matter.” Complainant explained that he was offended by the t-shirts because he saw the Confederate flag as a symbol of racism that evoked the history of slavery.1 Complainant also alleged that he is now fearful of one the employees he complained about because the employee has started parking his car off Agency properly and Complainant believes he might have a weapon in his car. (emphasis ours)

We emphasized the words “feelings,” “he saw,” and “believes” because they are all subjective words relying on opinion, and not facts. We are sorry to inform Mr. Dawson and the EEOC that there is not “right to not be offended” in the Constitution. The First Amendment protects free speech – even that speech which is “offensive.”

To show the stupidity of the decision even further, if you notice there is a footnote indicated after the phrase “…symbol of racism that evoked the history of slavery.” The footnote is given as:

There is scholarly support for Complainant’s interpretation of the symbolism of the Confederate flag. See, e.g., James Forman, Jr., Note, Driving Dixie Down: Removing the Confederate Flag from Southern State Capitols, 101 YALE L.J. 505 (1991).

The paper, as noted was written in 1991 by a Yale law student – not a faculty member, not a lawyer. The idea behind the paper is Forman disagreed with a ruling from a Federal appeals court. His thesis statement within the paper reads:

Last year in NAACP v. Hunt, the Eleventh Circuit rejected the National Association for the Advancement of Colored People’s (NAACP) claim that the Constitution of the United States and federal statutes mandate the removal of the flag from the Alabama state capital. Central to the court’s conclusion was the notion that the Hunt plaintiffs’ problem involved neither the flag nor the law, but their “own emotions.” Moreover, the court held that “[t]here is no unequal application of the state policy; all citizens are exposed to the lag. Citizens of all races are offended by its position.” In sum, the court told the plaintiffs to look elsewhere for relief because “the federal judiciary is not empowered to make decisions based on social sensitivity.”

This Note takes issue with the Hunt court……

The EEOC used, as a basis for its reversal a paper written by a law student who took issue with the law as decided by a Court. In other words, the EEOC didn’t follow the Eleventh Circuit’s ruling, it went with a paper saying the ruling was wrong. If the EEOC is going to go against court rulings, what good is it to have courts at all?

The EEOC has simply lost its mind.

Just when you think it can’t get worse, it does. While the ruling is only a reversal and allows the case to move forward, the consequences of the EEOC ruling for Dawson on the actual complaint are mind boggling. The reason for this is that while the Post Office is, for the purposes of the law, a federal establishment, rulings for federal establishments apply to the private sector.

As Eugene Volokh writes:

If the EEOC is right, then employers essentially have a legal duty to suppress Confederate flag displays whenever they are engaged in by an employee and a coworker is offended. Employers also have such a duty whenever they are engaged in by patrons and an employee is offended, since employers have a duty to prevent “hostile work environments” created by patrons. Bars and other places of public accommodation would also have a similar duty not to display Confederate flags and similar imagery, and to eject patrons who do the same, so long as a patron complaints that he is offended.

If the young lady pictured above were to walk into a store and someone complained, she could be told to leave. If she were out on the beach, she could be told to leave if someone was “offended” by her display of the Confederate Battle Flag.

We also wonder what would happen to stores at National Historical Parks (such as Gettysburg.) Would an employee be able to claim the Confederate Battle Flag on items for sale be “offensive” and therefore must be removed? Would historical re-enactors be forced to remove all flags and Confederate symbols from their uniforms, thus rendering them much less than historically accurate?

Furthermore, as we noted back on September 5, 2011, the “Confederate flag” and the “Confederate Battle flag” are two different flags with two different meanings. We wrote at the time:

We hate to be picky, but the flag that inflames passions on both sides is not the flag of the Confederate States of America. That flag is shown on the left in our graphic accompanying this article. The flag went through several iterations of adding stars to the blue field as the Confederacy grew – just as stars are added to the US flag when states are added to the union. The flag that gets people riled up is the Confederate Battle Flag, shown on the right in the graphic. That flag was produced after the First Battle of Manassas (also called Bull Run) when there was confusion as to whether a Confederate unit or a Union unit was entering the battle area.

To us, the distinction is between “Confederate Flag” and “Confederate Battle Flag” is an important one. While we do not support the issue of slavery as practiced in the Confederate States of America, and would not support the flying of the official flag of the CSA anywhere, battle flags had a different meaning in the 1860′s and earlier. Battle flags represented the men and units fighting more than the actual country for whom they were fighting.

The Confederate Battle flag is not the “Confederate flag.” Anyone who tries to equate the two does not understand their history.

The EEOC is way off base here and the repercussions are enormous. There is a difference between “discrimination” and “being offended.” We are against discrimination in all forms. We are not for outlawing or making criminal speech that is merely “offensive” – especially when the standard of what is “offensive” cannot be codified and relies on shear emotions.



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2 Responses to “Another Bite Taken Out Of The Free Speech Apple.”

  1. […] Raised On Hoecakes provides a little Rule 5 while showing that the Free Speech apple has died a little more […]

  2. david caskey says:

    I might point out a few things. First, in the 50’s and 60’s, opposition to integration was only one part of the equation. People in the South did not want any more integration that those people in the North were the concept was long ingrained, and had been since the early 1800’s. What people really did not care for in the South was the Federal government coming in and changing state policy, laws, etc. This was a novel concept back then, now it is standard practice. I might add that many did not want integration as they feared the destruction in morals and violence that would subsequently occur, history has proven their fears were not without foundation.

    Then the issue of the flag. The flag that is truly oppressive, racist, supporting of slavery and all the other issues that we feel are repugnant would be the US flag. Slavery was a Northern concept and that is were it originated. A simple google search would show that the most active port for receipt of slave from Africa was New York. Lincoln never freed the slaves in the North, only those in the rebel states. Lincoln initiated the final solution for the Indian problem as well. Most European nations observing at the time found the US to be as bad on civil rights and us of government sanctioned violence as we currently do toward Iran or any of the others in the axis of evil.

    Confederate symbols are actually a representation of freedom and self-determination. That is why they are feared.

    • AAfterwit says:

      david,

      Thank you for your comment.

      However, it should be pointed out that you have made some erroneous and misleading statements.

      First, on your idea of “integration,” while there was opposition to integration, the south was much more vocal and for segregation. The main issue was not “integration” per se, but the idea that courts were mandating the integration which many thought was a violation of the Constitution. The difference was in northern states natural integration was allowed and even encouraged. In the south, blacks and whites each “had their place” and the two, according to some, should never mix. The result was a sub society of rules, regulations, laws and denial of Constitutional rights due to the color of a person’s skin. Your comment on integration almost seems to be defending the idea of separate societies and different laws. Surely you aren’t defending that, are you?

      The idea that morals would decay and violence would increase was a tactic used by many. It is, in fact, without merit. In essence you are trying to put the increase in violence on one idea. You certainly cannot be saying that the decay in morals has nothing to do with a lowering of education, removal of church influence in schools, and even economic issues, are you?

      You automatically lose the debate when you start to say the most repugnant flag would be the US flag. If you feel that way, please leave. It is that simple. As for your contention slavery originated in the North, that is both right and wrong. Slavery came to this country with the settlers of Jamestown. When that colony died, slavery returned with the next established colony, which was up in the North. As for your contention that New York was the most active port for slaves, that is factually wrong. That would be Charlestown in South Carolina. Initially – early within the founding of the country – you might have been correct, but by the late 1600’s and early 1700’s the South was importing far more slaves than the north. In essence, your contention flies against economic logic. As time passed, there was not a market in the north for slaves, while there was robust market in the southern states. You are trying to get people to believe that merchants went away from the marketplace, incurring more costs in shipping to a more distant port, as well as the added expense of transporting slaves from New York to southern states. Your contention is not only wrong historically, but cannot be supported by economic reality.

      Your statement that “Lincoln never freed the slaves in the North, only those in the rebel states,” is factually true, but it is also deceptive. The idea that Lincoln did not free the slaves in the northern states gives the impression that slavery was legal in the norther states. It was not. By 1804 – five years before Lincoln was even born – northern states had already outlawed slavery. This means there was nothing for Lincoln to abolish in the north. You might as well been trying to say that a President was wrong for not banning the harvesting of icebergs in a desert.

      Confederate symbols are actually a representation of freedom and self-determination. That is why they are feared.

      I just want to make sure that I understand this statement. Do you really think the Confederacy – which was established because of the idea of keeping a race of people in chains – somehow represents “freedom?” Freedom for who? Is it your contention that people should have the right and “freedom” to enslave people, keep them in chains, beat them, separate families for profit and kill those who want to actually be free?

      The flag of the Confederate States of America does represent a certain level of acceptance of racism or at the very least, the acceptance of slavery.

      The Battle flag is a different story as the men who fought for that flag fought because it was a symbol of what they saw as an obligation and allegiance to each other – and not to the idea of slavery and racism.

      At Raised on Hoecakes, we respect people’s right to make statements, even if those statements, like yours, are historically and factually incorrect.

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