EEOC: wearing “Don’t Tread On Me” cap might create hostile environment

“Wearing a Gadsden Flag hat to work could be considered racial harassment, according to the Equal Employment Commission, the government body that oversees ‘hostile work environment’ harassment claims.” The EEOC acknowledged that the historical origin of the rattlesnake flag was unrelated to racial matters. The case involved a federal worker, but the EEOC’s jurisdiction extends to the private sector and the principles it expounds are generally applicable there as well. [Andrew Stiles/Heat Street, Eugene Volokh; compare Snopes (alarm premature, EEOC still early in process) and Noah Feldman, Bloomberg View (yes, worth investigating as possible harassment)]


  • And having a copy of the Constitution on your desk is both racist and terroristic.

  • “You need only reflect that one of the best ways to get yourself a reputation as a dangerous citizen these days is to go about repeating the very phrases which our founding fathers used in the struggle for independence.”
    – Charles Austin Beard, American Historian, 1874-1948

  • […] *Walter Olson points to a bizarre post by Harvard Law prof Noah Feldman, where he writes: […]

  • […] the title of a recent post by Walter Olson at […]

  • The EEOC’s decision combines the Heckler’s Veto with astonishing ignorance of American history, military history and traditions, and current events. Although I don’t expect much from the man who made the complaint, more should be expected of a powerful government agency, whose decision will, at a minimum, impose significant costs on the employer to defend itself, and will chill the free exercise of freedom of speech.

    According to the website, The First Navy Jack, , which is devoted to the history of the Continental (later U.S.) Navy’s historic First Navy Jack “Don’t Tread on Me” (DTOM) flag, official use of the motto and Rattlesnake symbol both pre-date the Declaration of Independence. The current DTOM Navy Jack design is attributed to Commodore Esek Hopkins, who, in the fall of 1775, issued to the ships of the Continental Navy in the Delaware River a set of fleet signals. Among these signals was an instruction directing his vessels to fly a striped Jack and Ensign at their proper places. It is believed that the First Navy Jack consisted of 13 horizontal alternating red and white stripes with a superimposed, uncoiled, rattlesnake and the motto “Don’t Tread on Me.” However, this design is based on a plate dating from 1880, showing that design.

    Since 1975, Secretary of the Navy directed that the First Navy Jack be flown by the U.S. Navy ship with the longest total period of active service. On May 22, 2002, the U.S. Navy ordered all ships to display the First Navy Jack during the War on Terrorism.

    The Rattlesnake symbol dates back to at least 1751, when Benjamin Franklin wrote an article (probably satire) for the Pennsylvania Gazette suggesting that as a way to thank the British for their policy of sending convicted felons to America, American colonists should send rattlesnakes to England. In 1754, he used a woodcut rattlesnake, captioned “Join, or Die”, as an illustration for an article urging unity in defending the colonies during the French and Indian War. At that time there was a common superstition that a snake which had been cut into pieces could come back to life if the sections were joined back together before sunset. The article and woodcut were reprinted extensively throughout the colonies. In July 1774, Paul Revere, one of the Sons of Liberty, modified the “JOIN or DIE” snake by joining its pieces into one snake, for the masthead of Thomas’ Boston Journal. By 1775, British troops were occupying Boston. The Rattlesnake symbol, as a symbol of resistance to British oppression and denial of the common law rights of the English colonists in America, was appearing on uniform buttons, military units’ drums, paper currency, banners and flags throughout the colonies. In December 1775, an anonymous article by “An American Guesser” (probably Benjamin Franklin) appeared in the Pennsylvania Journal, which suggested that a Rattlesnake should be adopted as a symbol for America, and resistance to the British occupation. In 1775, Christopher Gadsden, a member of the Sons of Liberty, was representing South Carolina in the Continental Congress in Philadelphia. The Congress chose Commodore Hopkins as commander-in-chief of the newly formed Continental Navy, and Gadsden presented Congress “an elegant standard, such as is to be used by the commander in chief of the American navy; being a yellow field, with a lively representation of a rattle-snake in the middle, in the attitude of going to strike, and these words underneath, ‘Don’t Tread on Me!’” This appears to be the first time The Gadsden Flag was used. It is believed that Navy 1st Lieutenant John Paul Jones, ran it up the gaff of the warship Alfred, which, it is believed, was the first time the flag was displayed. So Jones may have run up The Gadsden Flag, or, it may have been The First Jack, since in both there is a Rattlesnake over the words “Don’t Tread On Me!”

    On August 7, 2016, the Secretary of the Navy authorized Sailors to wear the subdued “Don’t Tread On Me!” patch (showing a uncoiled snake superimposed over 13 stripes) on the Navy Working Uniform Type III, starting October 1st. SEALs and other Naval Special Warfare Unit sailors, or those specifically authorized to wear the desert digital NWU Type II, may also wear a similarly-camouflaged DTOM patch. During garrison and non-tactical exercises or operations, the non-tactical DTOM patch may be optionally worn at the discretion of the unit Commanding Officer. See Navy Administrations Message 174/16, dated 4 August 2016.

    While I hope that the news media will thoroughly roast the EEOC, I have little confidence of that, since I doubt most “reporters” have the skills to investigate even the fairly straightforward facts about the matter.

  • Nicely done wfjag.
    I knew some of it, but, the difference between the two flags I did not know.

    The problem is that they don’t teach US History in school, they way that they used to. I’ll take any and all bets that the guy who complained, only knows that the evil Tea Party people fly that flag. He’s been told by the media that they are all racist, so therefore that flag has to be racist.

  • It seems to me that the anger at the EEOC is somewhat misplaced.

    The USPS dismissed the claim on procedural grounds saying that the guy had not made a cognizant claim.

    The EEOC disagreed and said he had. The USPS appealed. The EEOC again ruled he had.

    With the now cognizant complaint, the USPS (not the EEOC) had to investigate the claim, just as any agency would have to investigate any complaint.

    If the USPS had investigated in the first place, we would not be here. Instead, it really does seem that the USPS tried to weasel out of the claim.

    I agree that the claim itself seems to be meritless, but it is a claim nonetheless and should have been investigated by the USPS. If they had come back and said “the claim is without merit,” then you move on. If the EEOC had said AFTER that, there is merit to the claim, that’s a different story too.

    I am just having a problem getting worked up about the USPS trying to get out of investigating a claim and the EEOC saying they are required to investigate it.