Jon
Yarbrough's
"Employment
Law Corner"
courtesy of the
Asheville Citizen-Times
The
Employment Law Corner is the property
of the Asheville
Citizen-Times to whom we extend our thanks for allowing us to
republish the article.
April 19, 2006:
"Neither
Confederate Identity nor its Symbols Protected in Workplace Law"
In Pennsylvania, a terminated employee of a security firm sued his
employer under Title VII of the Civil Rights Act of 1964, claiming
that he had been discharged because of his national origin and
religion.
According to the former employee, his national origin claim was based
on his claimed identity as a “Confederate Southern American” and on
his display of a Confederate battle flag in his workplace.
His religion claim was premised on his “Confederate Southern Identity”
and the Confederate battle flag’s incorporation of the cross of St.
Andrew.
The employee had placed a Confederate sticker on his lunch box and put
two Confederate stickers on his pickup truck. His then-employer asked
him to cover or remove the stickers since the employer was about to
implement a “diversified hiring program” and since the client for whom
the company provided security had a “zero tolerance” policy with
respect to the display of Confederate flags and symbols.
The employee refused and was subsequently fired.
Most courts that have considered similar issues have rejected claims
that being Confederate American or “Southerness” is a protected class.
But the court in Pennsylvania assumed for the sake of argument that
“Confederate Southern American” is a valid national origin and that
the Confederate flag had some religious significance.
Nevertheless, the court dismissed the employee’s claims.
The court noted that the employee was not claiming that anything
fundamental to his national origin or religion required the display of
confederate symbols. The employee’s personal need to share his
heritage was not part of his national origin or part of some
religiously mandated observance.
Quite a few other cases have addressed Confederate symbols in the
workplace. In one 4th Circuit case, the judge hypothesized that in
some cases, Confederate symbols in the workplace could expose an
employer to a hostile work environment claim under Title VII of the
Civil Rights Act of 1964.
Employees have also claimed that they have constitutional rights, such
as freedom of speech and association, that allow for the display of
Confederate symbols on toolboxes and other personal items at work.
These cases, including one from North Carolina, have universally
concluded that employees of private employers have no such
constitutional rights and that therefore private employers may ban the
display of such items in the workplace without infringing upon an
employee’s constitutional rights.
This is the opinion of Jonathan W. Yarbrough, a member of the law firm of Constangy,
Brooks & Smith LLC, which is dedicated to representing management
exclusively in all aspects of the employment relationship.
Contact
Yarbrough at 277-5137 or jyarbrough@constangy.com
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