Friday, May 19, 2017

Both heritage and hate: Does the workplace display of the Mississippi state flag violate federal EEO law?

Monument to the Defenders of Little Round Top
With New Orleans in the process of removing several Confederate monuments, I figured it was appropriate to highlight a recent case brought by an African American attorney challenging the Mississippi state flag, the only one that still includes the Confederate flag.

In  Moore v. Bryant, No. 60616 (5th Cir. Mar. 31, 2017), the court rejected Carlos Moore's claim that the Mississippi state flag violates his rights under the Equal Protection Clause of the U.S. Constitution, concluding that Moore did not have standing (the right to bring a claim in court) because he had not suffered a sufficient injury. The court noted that, although Moore had alleged that the state flag stigmatizes him, he had not alleged that he had been personally denied unequal treatment.

Moore also tried to establish that he had standing by noting that he encounters the state flag in his work as a prosecutor and that the display of a Confederate flag can contribute to a hostile work environment in violation of federal EEO law. Rejecting this argument, the court explained that under EEO law, exposure to a hostile work environment is sufficient injury in and of itself, whereas equal protection standing requires something more.

Interestingly, while the court rejected Moore's constitutional claim, it opened the door to a potential EEO claim by an African American employee whose exposure to the Mississippi state flag in the workplace arguably contributes to a racially hostile work environment. Even if there are Mississippi laws requiring the display of the state flag, Title VII of the Civil Rights of 1964 preempts state and local laws that "purport[] to require or permit the doing of any act which would be an unlawful employment practice under [Title VII]."

There are numerous cases in which the display of a Confederate flag has been identified as one of the circumstances allegedly creating a hostile work environment. One particularly notable example is the Fourth Circuit's 2004 en banc decision in Dixon v. Coburg Dairy. In that case, Matthew Dixon, a member of the Sons of Confederate Veterans, alleged that the defendant violated South Carolina law by firing him because he refused to remove Confederate flag decals affixed to his personal tool box. An offended employee had complained to management about the decals, and the defendant concluded that the decals violated its anti-harassment policy. The main issue presented in Dixon was a procedural one dealing with whether the case involved a "substantial question of federal law," and therefore, could be removed by the defendant from state court, where Dixon had sued, to federal district court, where the defendant preferred to have the case tried.

Much more interesting than the majority decision is the eloquent concurrence by Judge Roger Gregory, explaining why he believed that the display of the Confederate flag could contribute to a hostile work environment that discriminates against African American workers:

Since the [Civil War], many people, likewise good and decent themselves, have proclaimed the Confederate flags as symbols of pride, of heritage not hate. Mr. Dixon states: "He has a keen interest in his family's geneology [sic].... His ancestors fought and died under the Confederate battle flag for a cause in which they believed." Compl. ¶ 4 (emphasis added). However, we cannot wholly divorce the flying of the flag from the system of beliefs and those practices -- which ... "no society should have sought to defend" -- that undergirded the Confederacy, including racial subordination and slavery. While many Southerners unquestionably embrace the flag, not out of malice or continued belief in racial subordination, but out of genuine respect for their ancestors, we must also acknowledge that some minorities and other individuals feel offended, threatened or harassed by the symbol. Unfortunately, to its supporters at the time of its creation as well as some proponents today, the Confederate flag undeniably represented, and represents, support for slavery, belief in Blacks as an inferior class, and opposition to the Republic. Over the years since the war, some have attempted to divorce the Confederate flags from their intimate connections to these principles of subordination, but for many viewers of the symbol such a disconnect is impossible because of the historical facts and the overwhelming negative connotations which continue to flow therefrom.

Some attempts to disgorge the Confederate flag of its negative content associated with the bleak realities of the Civil War and Jim Crow can be explained by the romanticism of what has been termed "Lost Cause" ideology. Since the war's end, Lost Cause proponents have cast the Civil War as a continuation of the revolution of 1776 -- a noble revolution against a despotic Northern regime, a battle for sovereignty in tune with America's core constitutional principles, clothed in the language of states' rights and Jefferson Davis's pleas for "Southern honor." Yet no matter how noble these proponents of the ideology attempted to make the Lost Cause seem, they have had difficulty divorcing it from slavery, white supremacy and the beginnings of Jim Crow and American Apartheid. . . .

Indeed, many offended by the Confederate flag find more current connections to oppression as the flag became an unfortunate symbol of the South's resistance to integration and equality from the late 1940s through the 1960s. For example, Georgia incorporated the Confederate battle flag into its state flag in 1956 "during a regrettable period in Georgia's history when its public leaders were implementing a campaign of massive resistance to the Supreme Court's school desegregation rulings." South Carolina began flying the Confederate flag above the State Capitol in 1962. Furthermore, much more recently the flag has continued to be associated with racial intolerance.
Against this historical backdrop, it becomes more apparent why co-workers might feel offended, harassed and even threatened by the Confederate battle flag in the workplace, even if those who display the flag do so with no ill will.
Reading Judge Gregory's words, it is impossible not to be moved. Although we may live in a society that values liberty above all else, we also live in a pluralistic society that strives to ensure equality of opportunity for all of its members. The Mississippi state flag is especially troublesome because it does not represent personal expression but institutionalized racism. If federal EEO law can restrict the workplace display of the Confederate flag as a form of personal expression, then surely it can restrict the much more odious government-sanctioned racism of the Mississippi state flag.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.