By Sandra Johnson – October 10, 2016

The depiction of overtly racial themes on clothing will generally not pass muster as appropriate workplace attire.

But clothing or accessories bearing ambiguous political or racial themes may present a challenge to employers who must address the concerns of employees who feel offended or threatened by the social messages expressed.

The Equal Employment Opportunity Commission addressed such a scenario in denying a request for reconsideration in the case of  Shelton D. v. Brennan, Postmaster General, USPS (Western Area), 2016 WL 3361228.

Shelton, an African-American postal employee, filed a formal complaint alleging the United States Postal Services subjected him to discrimination based on race and in reprisal for his prior EEO activity.

He complained that a coworker repeatedly wore a cap, bearing the Gadsden Flag.

Shelton said the flag, which depicts a coiled rattlesnake and the phrase “Don’t Tread on Me,” was racially offensive to African-Americans because its creator, Christopher Gadsden, was a slave trader and owner.

Despite his complaints and assurances from management that it would remedy the situation, the coworker continued wearing the cap and allegedly took a picture of Shelton on the work-room floor without his consent.

The USPS dismissed the employee’s formal complaint for failure to state a claim, prompting the employee to file a complaint with the EEOC.

Relying on a prior holding which involved management’s failure to stop employees from wearing t-shirts bearing the Confederate flag, the EEOC found Shelton’s allegations constituted a cognizable claim of harassment under EEOC regulations.

The Commission concluded the dismissal of the complaint was improper and remanded to the USPS for further processing.

The USPS sought reconsideration arguing the flag and its slogan lack any racial connotations.

The agency said the original flag flew on the first warship of the Continental Navy, and only later morphed into a striped flag and slogan synonymous with political movements like the Tea Party, gun activism, patriotic displays and the military.

Not surprisingly, Shelton argued against granting the request for reconsideration.

He contended the Gadsden Flag was a “historical indicator of white resentment against blacks,” and was equivalent to the Confederate Battle Flag.

The USPS countered that an ignorance of history caused Shelton to conflate the symbolism behind the Gadsden Flag with the Confederate Battle Flag, which clearly symbolized a political structure supporting and defending slavery.

Although the Commission acknowledged the Gadsden Flag arose in the Revolutionary War in a non-racial context, it also found recent interpretations of the flag convey racially-tinged messages.

Based on this ambiguity, the Commission refused reconsideration and said remand was warranted, in order for the USPS to view the allegedly harassing incidents in the light most favorable to Shelton.

Source: Legal Solutions Blog