This post originally appeared on the Connecticut Employment Law Blog.
There’s been lots of talk lately about the Confederate flag and its symbolism in the aftermath of the Charleston shootings.
But I wondered: How has this flag come up in the context of employment discrimination cases?
It’s actually referenced a bunch according to a quick search by Google. A case out ofAlabama alleged a racially hostile environment with displays of the flag in 2011. Indeed, in another case, an employee complained that various co-workers wore lots of clothes adorned with the Confederate flag.
So yes, displays of the flag at work can cause issues and give rise to discrimination claims. Not a big surprise. (Notably, my search did not highlight any particular displays of the Confederate flag coming up in Connecticut state or federal court cases.)
Then I came across the case of Duke v. Hamil, a federal court case from 2014 out of Georgia, in which a university police officer was demoted after he displayed a Confederate flag on his Facebook page along with the phrase “It’s time for the second revolution.” He claimed that being demoted violated his First Amendment speech rights.
And on that ground, you might be surprised that the court agreed with him — in part. The court held the display was actually a matter of public concern and subject to the protections of the First Amendment:
However, the Court finds that Plaintiff’s speech can be fairly considered to relate to matters of political concern to the community because a Confederate flag can communicate an array of messages, among them various political or historical points of view. Combine this symbol with a statement calling for a revolution right after an election, and it is plausible that Plaintiff was expressing his dissatisfaction with Washington politicians. Even if Plaintiff had intended to convey a more radical message by using the Confederate flag and the word revolution, that message would also relate to political and social concerns of the community regardless of how unpopular or controversial that point of view may be. Plaintiff’s speech was thus a matter of public concern because it expressed disapproval of elected officials, certainly a topic “upon which `free and open debate is vital to informed decision-making by the electorate.’”
But before you start ranting about this decision on Reddit, there’s more. The court went on to apply a balancing test in which the plaintiff’s speech is weighed against the interest of the police to take action when speech “may unreasonably disrupt the efficient conduct of government operations.”
And this is where the employee’s claim ultimately falls apart”
Appearing to advocate revolution during a presidential election, and to associate that idea with a Confederate flag, Plaintiff likely sent a partisan, if not prejudicial, message to many in the … Police Department and the community it serves.
After carefully weighing these factors, the Court finds that the … Police Department’s interests outweigh Plaintiff’s interest in speaking. It is obvious that speech invoking revolution and the Confederate flag could convey a host of opinions that many would find offensive, especially when associated with a senior law enforcement official.
Even though the case concerned a police officer, it’s likely that other courts could come to similar conclusions. Any right to display the flag, will be outweighed by the disruption in the workplace.
Of course, Connecticut has its own flag case – Cotto v. United Technologies — in which the court had to look at whether an employee’s refusal to display an American flag was protected speech. I’ve talked about that case here.
If you want to learn more about “good” and “bad” flag design, I highly recommend this discussion of vexillology here.