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Display of Confederate flag could cause problems in workplace

Category: Hostile Work Environment

The recent decision by South Carolina to remove the Confederate flag from its statehouse has been very controversial. While most Americans view the flag as a symbol of bigotry, a small minority believe it is a symbol of Southern heritage and have begun defiantly displaying it or wearing clothing that depicts it in order to show their support. This is occurring in the South and around the country, including California.

Employers and employees should be aware that the U.S. Equal Employment Opportunity Commission has repeatedly stated that the display of the Confederate flag, like the swastika or nooses, may be used as evidence of unlawful harassment in the workplace. Legal experts suggest that employees not be allowed to display the Confederate flag in their work areas, on their bodies or on their vehicles while at work. Several court decisions have also backed up the EEOC’s position on this issue, holding that the flag can be used to support an employee’s claim of a hostile workplace environment.

In order to avoid such harassment claims, employers should review their company’s discrimination policy, which likely already contains language forbidding the display of offensive words, symbols or photographs. If the company policy does not contain such language, employers should add it as soon as possible.

California employers wishing to update their company’s discrimination policies to ban the display of the Confederate flag may wish to consult with an attorney to make sure that proper, enforceable language is used. Meanwhile, employees who believe they have been the victim of a hostile work environment may benefit by speaking with an attorney to determine the remedies that may be available.

Source: National Law Review, “South May Rise Again Someday, But Not In Your Workplace,” Douglas Oldham, July 30, 2015

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