The tragic shooting in Charleston in June has sparked discussion of a number of sensitive topics, including whether displaying the Confederate flag — a symbol of pride for the self-proclaimed white supremacist shooter — is a matter of free speech. Unsurprisingly, the issue has come up in the context of employment law. Do employees have the right to display a Confederate flag or other symbol that may be offensive to coworkers? Does allowing such display open the employer to discrimination claims?
We don’t have to look far to find applicable cases, especially in the South. A Google search reveals hundreds of instances in which the flag comes up in discrimination cases. The opinion of the court in such cases seems to be evolving. As recently as 2002, a Kansas court ruled that an employee’s Confederate flag car tag did not interfere with his coworkers’ ability to do their jobs. But a decade later, a New York court found that, without question, “the display of the Confederate flag recalls a history of racial oppression.” Even then, however, the court stopped short of saying that the presence of the flag was sufficient to establish a hostile work environment.
On the other side of the issue, Storey v. Burns presents the case of an employee whose employer asked him to cover Confederate flag lunch box and bumper stickers — and fired him when he refused. The employee claimed that the flag symbolized his national origin (“Confederate Southern America”) and his Christian religion, so was protected under Title VII. The court ruled against the employee because neither his national origin nor religion mandated display of the flag.
A Georgia case in the public sector, Duke v. Hamil, might provide a clue as to how the court will balance opposing views of the flag, balancing an employee’s rights to display the flag against the employer’s need to maintain a productive workplace. In this case, a police officer was demoted for displaying a Confederate flag on his Facebook page. While the court agreed that displaying the flag was subject to First Amendment protection, it found that the police department’s need to maintain good community relations outweighed the officer’s free speech rights, since the Confederate flag is offensive to many people, especially when associated with law enforcement.
As major retailers stop sales of Confederate flags and states remove it from their statehouse flagpoles and license plates, the issue may fade from sight. But for now, employers should carefully consider how to handle employees who display the flag at work. When in doubt, consult your employment attorney regarding how best to proceed.