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Employers – Do Not Ignore Confederate Flag Sightings in the Workplace!

By Veronica Yu Welsh - Shawe Rosenthal LLP

October 20, 2021

Throughout the past decade, there have been efforts across the nation, at both the state and federal level, to ban the display of Confederate flags, a symbol associated with promoting hate, specifically racism.  In fact, some states have adopted laws that prohibit public displays of the Confederate flag, while other states, including Maryland, have phased out license plates that display the Confederate flag.  Private company giants, such as Amazon, Walmart and NASCAR, have also banned the display of the Confederate flag.

In Moore v. Conn. Dept. of Corrections, a federal court judge recently denied an employer’s efforts to have an employee’s hostile work environment claim thrown out. The employee alleged that she walked past another employee’s Confederate flag license plate at least 100 times when entering and exiting the workplace.  Despite two complaints to her employer, the Confederate flag license plate was never removed or concealed while on the employer’s premises.

In order to sustain a hostile work environment claim, a plaintiff must establish that the conduct at issue was both subjectively (to the employee) and objectively (to a reasonable person) offensive. The court determined that the employee’s evidence regarding the display of the Confederate flag license plate, including that the symbol made her feel “unwelcome and unsafe”, was sufficient to support the employee’s claim.  The court held that the employee presented sufficient evidence to demonstrate that she subjectively perceived her work environment to be hostile based on the presence of the Confederate flag license plate.  The court also held that the Confederate flag plate created an objectively hostile work environment because the court could not “conclude that no reasonable juror could find that walking by an image of a Confederate flag every day ... would not alter a black employee’s conditions of employment for the worse.”

This is not the first time that the Confederate flag served as the basis for workplace discrimination and harassment claims.  For example, in 2012, the EEOC held that an employer’s two-month delay in preventing an employee from repeatedly wearing Confederate flag t-shirts to work, after receiving an employee complaint, may constitute harassment and warranted further investigation.

The Moore case should serve as a reminder to employers to be proactive in addressing employee complaints relating to offensive symbols, including the Confederate flag, in the workplace (even if such displays are relegated to the parking lot).  Employers should also consider revising workplace policies, such as anti-harassment and personal appearance policies, to proactively address offensive symbols in the workplace before a complaint is lodged, and to promptly investigate and effectively address related employee complaints.

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