Eugene Volokh has two recent posts (here and here) on current Confederate flag controversies and a troubling ruling by the EEOC. Hans Bader has a long, thorough analysis of the issue here. “If the EEOC is right,” as Eugene wrote in the first of his posts,
then employers essentially have a legal duty to suppress Confederate flag displays whenever they are engaged in by an employee and a coworker is offended. Employers also have such a duty whenever they are engaged in by patrons and an employee is offended, since employers have a duty to prevent “hostile work environments” created by patrons. Bars and other places of public accommodation would also have a similar duty not to display Confederate flags and similar imagery, and to eject patrons who do the same, so long as a patron complaints that he is offended.
And of course the same could in principle apply not just to speech that is perceived as racist, but also speech that is perceived as anti-Islam, anti-Christianity, anti-Hispanic-immigrant, anti-women, anti-men, and so on….
Nearly a decade ago I wrote about another Confederate flag controversy, Freedom of (or from?) Confederate Flags. It involved a newly elected black U.S. Senator from Illinois. Many of the links on that old post are now broken (and not worth fixing), but I think its substance holds up.
