While enjoying a scenic drive along the Maine coast recently, I was startled to come across a giant Confederate flag prominently displayed in a house’s front yard. Less than a week later, a client contacted our firm to ask for advice in responding to an employee’s claim that a vehicle with a Confederate flag bumper sticker in the parking lot made her uncomfortable. While the timing of the occurrences may have been a coincidence, the events are a reminder that the Southern symbol can appear at any workplace, including workplaces in one of the northernmost states in the country. For many, the Confederate flag is an offensive image, and addressing the symbol at work can be tricky. Employers in other states have been sued for ordering employees to remove Confederate flags, while other employers have been taken to court for failing to order workers to remove the flags.
No right to display Confederate flags at work
In other states, employees who have been disciplined for displaying the Confederate flag at work have attempted to argue that their employers’ actions constituted unlawful discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on national origin, religion, and other grounds. Somewhat creatively, a Pennsylvania employee once argued that the flag was a symbol of his nationality (“Confederate Southern-American”) and religion (Christianity). In rejecting that argument, the U.S. 3rd Circuit Court of Appeals ruled that the flag was not a fundamental symbol of the employee’s religious identity.
By contrast, an employee’s request to wear a head scarf at work may be protected by Title VII because head scarves are mandated by certain religions. It is likely that a court in the 1st Circuit (whose rulings apply to all Maine employers) and others would also reject the argument that the Confederate flag deserves the same status as a religious symbol.
An employee may also claim that he has a right to display political symbols under the First Amendment to the U.S. Constitution. For private employers, that is not accurate. The First Amendment prevents the government, not private businesses or individuals, from regulating speech. For public employers, the situation is a bit more complicated. Public employees have a First Amendment right to speak about matters of “public concern” when their rights as individual citizens outweigh the employer’s interest in promoting an efficient workplace. Typically, speech regarding government actions or policies (for example, tax rates or school budgets) is considered a matter of public concern. Therefore, an employee would not have a strong argument that displaying the Confederate flag is a matter of public concern.
Hostile work environment claims
Nationally, courts are split on whether a display of the Confederate flag by itself creates a hostile work environment or constitutes harassment. The Equal Employment Opportunity Commission (EEOC) has consistently taken the position that displaying the flag is a form of unlawful harassment, and several federal appellate courts have agreed. However, that opinion is not consensus.
While courts are divided on the hostile work environment question, there is consensus that the display of the Confederate flag can be used as evidence of race discrimination. For example, if a black employee is denied a promotion and later files a lawsuit alleging race discrimination, a jury would be allowed to consider the fact that the employee’s supervisor displayed a Confederate flag at her workstation. The bottom line is, the display of the Confederate flag in your workplace increases the potential liability for your company.
While some employees may have a different opinion about the Confederate flag’s symbolism and meaning, many see it as an offensive image associated with segregation and racism. At best, the image is likely to spark controversy. At worst, some employees may feel unwelcome or unsafe if the flag is displayed.
Review your discrimination and harassment policies. If your policies prohibit offensive pictures, symbols, and words, you can point to that language when asking an employee to remove a Confederate flag from your office or parking lot. An employment lawyer can help you draft an appropriate policy.