When a Flag Crosses the Line to Harassment

Is it racial harassment in the workplace to display the yellow “Don’t tread on me” flag? The Equal Employment Opportunity Commission says that it could be, depending on the context. The commission acknowledged that the Gadsden flag, which dates back to the era of the American Revolution, did not have racist origins. But it called for a careful investigation to see whether recent uses of the flag have been sufficiently “racially tinged” that it could count as harassment.

A strong argument can be mounted that this EEOC decision is a threat to the First Amendment -- and that’s exactly the argument made by UCLA law professor Eugene Volokh on his blog, the Volokh Conspiracy, in reporting on the commission decision. But on closer examination, I think the commission got this one right. When it comes to the meaning of symbols, social context is everything. Even symbols that have no direct historical connection to racism can change meaning over time. And if we’re going to have laws against workplace harassment, we have to prohibit all harassing behavior -- including harassment that’s overtly political.