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Don't Tread on Me (Or: Is the Obama Administration Really Trying to Ban the Gadsden Flag?) (No.)

The latest non-Trump scandal du jour among conservatives is the reported effort by the Equal Employment Opportunity Commission to consider whether the display of a Gadsden Flag in the workplace amounts to racial harassment. It was first reported by Eugene Volokh here. Here's National Review's take on the topic:

The Equal Employment Opportunity Commission has ruled that displaying the Gadsden Flag in the workplace — the yellow flag with the words Don’t Tread on Me below a coiled rattlesnake — may be punishable racial harassment.  
In case you’re wondering: That’s it. That’s the extent of the offense. There were no racist statements. No slurs. No threatening looks. A dude wore a cap.  
Ah, but: Complainant maintains that the Gadsden Flag is a “historical indicator of white resentment against blacks stemming largely from the Tea Party.” 
As Hillary Clinton would say: Sigh. There is no evidence that the Tea Party as a movement was motivated by racial animus (even some of the “racist” episodes that critics cited never happened). But there is a strong vein of leftwing historical revisionism that says it was so, presumably because that is easier to accept than the possibility that right-leaning voters circa 2009 had legitimate, defensible discontents. And here’s yet another example. So it turns out the complainant’s logic is just the typical, indefensible sort: The Tea Party is racist. The Tea Party uses the Gadsden Flag as a symbol. Therefore, the Gadsden Flag is racist 

And, naturally, the EEOC bought it. 
Naturally, there's both more and less to this story than meets the eye.

Take a look at the prime document, excerpted heavily in Volokh's post, and the story becomes a bit more clear.

The EEOC acknowledges that the Gadsden Flag isn't necessarily a racist symbol: "After a thorough review of the record, it is clear that the Gadsden Flag originated in the Revolutionary War in a non-racial context. Moreover, it is clear that the flag and its slogan have been used to express various non-racial sentiments, such as when it is used in the modern Tea Party political movement, guns rights activism, patriotic displays, and by the military."

But there have been times when it has been used in the service of racism: "For example, in June 2014, assailants with connections to white supremacist groups draped the bodies of two murdered police officers with the Gadsden flag during their Las Vegas, Nevada shooting spree. ... Additionally, in 2014, African-American New Haven firefighters complained about the presence of the Gadsden flag in the workplace on the basis that the symbol was racially insensitive."

• So what the EEOC wants to do is ... investigate a little bit more to determine whether the Gadsden Flag's use in this case and context was used as racial harassment: "In light of the ambiguity in the current meaning of this symbol, we find that Complainant’s claim must be investigated to determine the specific context in which C1 displayed the symbol in the workplace. Instead, we are precluding a procedural dismissal that would deprive us of evidence that would illuminate the meaning conveyed by C1’s display of the symbol."

Somehow all of this has become, in conservative circles, "the Obama Administration wants to ban the Gadsden Flag." But what's really happening is: The EEOC is trying to determine if there's evidence that racial harassment occurred in a workplace. That's the EEOC's job. And if the EEOC does find that such harassment has occurred, it seems obvious from its statement that it won't be issuing a blanket ban on the Gadsden Flag. Instead, it'll be punishing a specific employer for allowing the flag to be used to harass.

Here's the EEOC's explainer of what happened in this case. One interesting fact that emerges — never mentioned by Volokh or the many conservative websites that spread the fear — is that the employer in this case is the U.S. Post Office. A public employer, not a private one.

Now, many conservatives may think the EEOC has no right to be adjudicating such workplace disputes, and that it is an affront to freedom by doing so. That's a different argument. The claim the "Obama Administration" is banning Gadsden? Doesn't hold up to even the mildest scrutiny.


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