Thanks to Porter Wright Summer Associate Carolyn Alford for her assistance in preparing this blog post.
The recent tragedy in South Carolina, where a reputed white supremacist opened fire on a crowd of Black churchgoers, has propelled the Confederate flag as a symbol of racism back into the public spotlight, after a picture surfaced of the shooter posing with a gun in front of a Confederate flag. The attention the Confederate flag has received nationwide will no doubt be reflected in the workplace as well. But what are an employer’s responsibilities when an employee or manager wants to display the confederate flag or any other symbol that incites such deep and conflicting emotions?
Case law interpreting the meaning of the flag has evolved in recent years. In 2002, a Kansas court determined that an employee could display a Confederate flag tag on his car because it did not impede his coworkers’ ability to perform their jobs. The court held that the meaning of the flag, be it a representation of southern heritage or of white supremacy, depended upon one’s perspective and the court was not prepared to say either was incorrect. However, a decade later, a New York court in Devers v. SNC-Lavalin Generation, Inc. found that “there is no question that the display of the Confederate flag recalls a history of racial oppression.”
While the Confederate flag is recognized as offensive by many, its display in the workplace is oftentimes not enough to support a hostile work environment claim. The Devers court recognized the objectionable nature of the flag, but found it, accompanied by isolated racist remarks, insufficient to support a hostile work environment claim. In Walton v. United States Steel Corp., an Indiana court found a co-worker’s Confederate flag tattoo “was not sufficiently severe and pervasive to establish a hostile work environment.” The Alabama court in Carter v. Daehan Solutions Ala., LLC., similarly determined that co-workers’ Confederate flag apparel was not “frequent, severe, or physically threatening and humiliating enough to constitute a hostile work environment.”
Those who bring the Confederate flag or other symbols representing white supremacy into the workplace occasionally, though unsuccessfully, argue that their display of the symbol is actually protected under Title VII because it speaks to their national origin or religious beliefs. In Storey v. Burns, the employee claimed his confederate flag lunch box sticker and bumper stickers were based on his national origin of “Confederate Southern American” and his religious belief, Christian. The employer required the employee to cover the stickers and when he refused, the employer terminated him. On a motion to dismiss, the court ruled against the employee because neither his national origin nor his religious belief required him to display stickers with the confederate flag. “His personal need to share his heritage cannot be equated with something endemic to national origin or a religiously mandated observance.” The employer, according to the court, therefore was not discriminating against him based on his religious beliefs or national origin when it terminated him for failing to remove the stickers. Similarly in Swartzentruber v. Gunite Corp., an employee sported a tattoo of a KKK member standing in front of a burning cross. The employer required that the tattoo be covered except when washing. The employee argued that his tattoo contained religious symbols entitled to Title VII religious protection, but the court found no evidence that the act of covering up his tattoo conflicted with his religious beliefs and it granted employer’s summary judgment motion.
In the public sector, courts use a balancing test to decide whether employees have a First Amendment right to display the Confederate flag, which weighs the employee’s First Amendment rights against the employer’s interest in avoiding workplace disruption. Under this test discussed by the federal district court in Maryland in Buker v. Howard Cnty., the “employee bears the burden of demonstrating that he was speaking as a citizen on a matter of public concern” and is therefore protected by the First Amendment. In Duke v. Hamil, the court upheld a senior police officer’s demotion for displaying the flag on his Facebook page where the police departments interest in safeguarding its good working relationships and its reputation outweighed the officer’s free speech rights. The court considered the facts that the Confederate flag was considered offensive by many, especially when associated with law enforcement, and that the officer shared it with a broad audience during a politically charged election season.
The Confederate flag has always been a divisive symbol, with staunch supporters on both sides of the debate. But recently, in the wake of the shootings, those that once accepted displaying the flag have reversed course. Amazon and Walmart, among others, now ban the sale of Confederate merchandise and the South Carolina government has stopped flying the Confederate flag on statehouse grounds. Perhaps these changes of opinion signal a shift in the social thinking on the flag, which may further seep into judicial consideration of employer policies and practices related to it. Employers should be careful to consider the use of the Confederate flag in context when it is displayed by employees on employer grounds and take action and investigate if complaints are raised.