Wednesday, July 4, 2018

Does discrimination against Confederate Americans violate federal EEO law?

On July 4, 1863, General Robert E. Lee began his withdrawal after a devastating defeat at Gettysburg, Pennsylvania, the sight of the bloodiest battle of the Civil War.

An interesting question that has sometimes been raised in EEO cases is whether discrimination against someone for being a Confederate American is covered by Title VII of the Civil Rights Act. Generally, this has arisen where someone has been disciplined for displaying a Confederate flag. In Storey v. Burns International Security Services, 390 F.3d 760 (3d Cir. 2004), for instance, the court concluded that, even assuming Curtis Blaine Storey was a member of a protected class, he was not fired because of his religion or national origin group but because he refused to cover up or remove Confederate flag stickers while at work.

Although the majority found it unnecessary to address whether being a Confederate American is a religion or national origin, Judge Scirica's concurrence did reach those issues, and it rejected the plaintiff's contentions. More understandable is Scirica's rejection of claims of religious discrimination, reasoning that the complaint did not "contend that [Storey] displayed the stickers for religious reasons, but 'because he is proud of being a Confederate Southern-American.'"

Less persuasive is Scirica's rejection of the national origin claim. Scirica explained that "national origin" refers to the country where a person, or his or her ancestor's, came from. Citing Supreme Court precedent, Scirica notes that the Confederacy was never an independent nation, and therefore, discrimination based on status as a Confederate American does not qualify as national origin discrimination.

This analysis has some superficial appeal, but it is quite frankly too clever by half. Although you might think "national origin" discrimination is limited to discrimination associated with countries of origin, that is not in fact the case.  National origin" discrimination may be grounded in discrimination against individuals from a particular country, but much more commonly, it will involve discrimination based on ethnicity, such as discrimination against Hispanics or Middle Easterners. The issue, therefore, is whether Confederate Americans can be considered an ethnic group in that same sense.

Even if such discrimination is covered, that would not mean that offensive racist conduct, such as the display of a Confederate flag, would be protected. As I noted in a previous post, the display of a Confederate flag may contribute to a  racially hostile work environment, so an employer would be responsible for addressing it. But if someone is not hired merely because he has ancestors who defended the Confederacy in the Civil War, there's a strong argument that Title VII has been violated. Such situations, I would imagine, are unlikely to arise. And indeed, the majority in Storey noted that the plaintiff was not fired merely for his status as a Confederate American. Nevertheless, courts should be consistent in applying the law and should not reject a claim -- as Scirica may have done -- merely because it is perceived as being distasteful.

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.