Legal landscape note: This article was originally published in 2016 and describes the law as it stood at that time. New Jersey law changes frequently.
Overview
A coworker keeps wearing a "Don't Tread on Me" hat to work. Another employee complains that it creates a racially hostile environment. Which side does the law take? In 2016, the U.S. Equal Employment Opportunity Commission (EEOC) confronted that exact dispute, issuing a decision that placed the Gadsden Flag -- the yellow banner bearing a coiled rattlesnake and the words "Don't Tread on Me" dating back to 1775 -- under review for potential racial significance in the workplace. The decision, issued in EEOC Decision No. WL 3361228, arose from a complaint filed in January 2014 by an African-American employee who alleged that a coworker's wearing of a Gadsden Flag hat created a racially hostile work environment.
For New Jersey employers, the case raised practical questions about where the line falls between protected political expression and actionable workplace harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
The Complaint
The complainant, an employee of private industry, objected to a coworker's hat displaying the Gadsden Flag emblem. The complainant noted that Christopher Gadsden, the flag's designer, was a slave trader and owner of enslaved people. Management had previously ordered the coworker to refrain from wearing the hat at work, but the coworker continued to do so. An additional incident involved another employee photographing the complainant without consent in September 2013.
The complainant characterized the flag as "a historical indicator of white resentment against blacks stemming largely from the Tea Party."
The EEOC's Analysis
The Commission did not issue a blanket ban on the Gadsden Flag in the workplace. Instead, it determined that further investigation was warranted to assess the specific context in which the flag was displayed. The EEOC acknowledged that the flag originated in a non-racial context and is commonly associated with the American Revolution, military service, Second Amendment advocacy, and the Tea Party political movement.
However, the Commission cited two post-2014 incidents that complicated this analysis. First, the 2014 Las Vegas shooting in which a white supremacist couple draped Gadsden Flags over the bodies of two slain police officers. Second, a 2014 Connecticut fire department incident in which an African-American firefighter successfully objected to the flag's display as racially discriminatory, resulting in its removal.
What This Meant for Employers
The EEOC's decision signaled that symbols with ostensibly non-racial origins could acquire racial significance depending on context, history, and the specific workplace environment. For New Jersey employers operating under the New Jersey Law Against Discrimination (N.J.S.A. 10:5-1 et seq.), the case reinforced the importance of investigating complaints about workplace symbols on a case-by-case basis rather than applying categorical rules.
Employers who failed to take complaints seriously risked exposure under both federal and state anti-discrimination frameworks. The New Jersey Law Against Discrimination provides broader protections than Title VII in many respects, including coverage of smaller employers and additional protected categories.
The Broader Implications
The Gadsden Flag case illustrated how the meaning of symbols can evolve over time. A flag created during the Revolutionary War to symbolize American unity and resistance to tyranny had, in certain contexts, been appropriated by groups with racially exclusionary ideologies. The EEOC's approach left open the possibility of future restrictions depending on how additional cases developed.
Key Takeaways
- The EEOC did not ban the Gadsden Flag but held that its racial significance requires case-by-case analysis
- Context matters: the same symbol may be innocuous in one setting and harassing in another
- New Jersey employers must evaluate complaints under both Title VII and the NJLAD
- Two violent incidents involving the flag in 2014 influenced the Commission's reasoning
- Workplace dress code and expression policies should be reviewed periodically for compliance
Reviewed by Britt J. Simon, Esq., Managing Partner -- Simon Law Group, LLC -- May 2026
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