Stories
Slash Boxes
Comments

SoylentNews is people

SoylentNews is powered by your submissions, so send in your scoop. Only 18 submissions in the queue.

Preliminary Ruling in EEOC Gadsden Flag Case [Updated]

posted by n1 on Monday August 08 2016, @08:31PM   Printer-friendly
from the don't-kick-me-when-i'm-down dept.

MrPlow writes:

[Update. It appears the original submission was skewing the facts. From the What You Should Know about EEOC and Shelton D. v. U.S. Postal Service (Gadsden Flag case) on the EEOC (US Equal Employment Opportunity Commision) web site:

What You Should Know about EEOC and Shelton D. v. U.S. Postal Service (Gadsden Flag case)

  • This decision addressed only the procedural issue of whether the Complainant's allegations of discrimination should be dismissed or investigated. This decision was not on the merits, did not determine that the Gadsden Flag was racist or discriminatory, and did not ban it.
  • Given the procedural nature of this appeal and the fact that no investigative record or evidence had been developed yet, it would have been premature and inappropriate for EEOC to determine, one way or the other, the merits of the U.S. Postal Service's argument that the Gadsden Flag and its slogan do not have any racial connotations whatsoever.
  • EEOC's decision simply ordered the agency - the U.S. Postal Service - to investigate the allegations. EEOC's decision made no factual or legal determination on whether discrimination actually occurred.

The original story follows. --martyb]

Submitted via IRC for TheMightyBuzzard

The Equal Employment Opportunity Commission (EEOC) has determined in a preliminary ruling that wearing clothing featuring the Gadsden Flag constitutes legally actionable racial harassment in the workplace. In short, wearing the Gadsden flag while at work can earn you the title of "racist", earn you harassment charges, and cost you your job. The ideological witch hunt started back in 2014 when a black employee at a privately owned company filed a complaint with the EEOC when he saw a co-worker wearing a hat featuring the Gadsden flag and the words "Don't tread on me." The EEOC has decided to side with the over-sensitive employee, despite already admitting that the flag originated in a non-racial context and has been adopted by multiple non-racial political groups, countless companies and more, since it was created.

The ruling is a preliminary ruling and has not yet been made "official" but the preliminary ruling says that you can be charged with "racial harassment." They have not indicated when an "official" ruling will be made and it is ongoing.

Source: American Military News

Better Source: Washington Post

Facts: EEOC

Original Submission

 
This discussion has been archived. No new comments can be posted.
Preliminary Ruling in EEOC Gadsden Flag Case [Updated] | Log In/Create an Account | Top | 136 comments | Search Discussion
Display Options Threshold/Breakthrough Mark All as Read Mark All as Unread
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.

  • (Score: 0) by Anonymous Coward on Monday August 08 2016, @10:53PM

    by Anonymous Coward on Monday August 08 2016, @10:53PM (#385521)

    U.S. Postal Service dismissed the complaint for failure to state a cognizable claim of discrimination. On June 20, 2014, the EEOC Office of Federal Operations reversed the agency's dismissal, determining that Complainant had raised a cognizable claim of harassment, and ordered the agency to investigate the claim

    USPS dismissed the complaint based on it not meeting the criteria of a valid complaint. The EEOC said that the complaint was valid and that the USPS had to investigate the complaint.

  • (Score: 0) by Anonymous Coward on Monday August 08 2016, @11:39PM

    by Anonymous Coward on Monday August 08 2016, @11:39PM (#385542)

    https://www.eeoc.gov/laws/statutes/titlevii.cfm [eeoc.gov]

    There's the listing.

    You point out which sections apply to justify an investigation.

    • (Score: 2) by Scruffy Beard 2 on Tuesday August 09 2016, @04:22AM

      by Scruffy Beard 2 (6030) on Tuesday August 09 2016, @04:22AM (#385619)

      I believe that would be section 703(k)1:

      (k) Burden of proof in disparate impact cases

      (1) (A) An unlawful employment practice based on disparate impact is established under this subchapter only if-

              (i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or

              (ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

              (B) (i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.

              (ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.

              (C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of “alternative employment practice”.

              (2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this subchapter.

              (3) Notwithstanding any other provision of this subchapter, a rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in schedules I and II of section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or any other provision of Federal law, shall be considered an unlawful employment practice under this subchapter only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin.

      My interpretation is that the USPS is now required to investigate if allowing the flag to be displayed constitutes a "disparate impact". The complainant now has to show that displaying the flag is in fact racist.

      • (Score: 0) by Anonymous Coward on Tuesday August 09 2016, @07:04AM

        by Anonymous Coward on Tuesday August 09 2016, @07:04AM (#385667)

        And it still doesn't pass muster.

        Disparate impact is specific to an employment practice, and unless the argument is no employee should be able to wear anything besides but their uniform during work hours (such as the military), it is singling out a person, not a practice.

        So again, by what justification did the EEOC determine this warranted further investigation? I've read through the entire law and thus far the justification seems to be "because we say so".