Exposure to the Confederate flag in the workplace can support an employee's claim of racial discrimination, according to a recent decision of the United States Court of Appeals for the Eleventh Circuit, Adams v. Austal U.S.A., LLC (11th Cir., June 17, 2014).
The plaintiffs, 24 African American current and former employees of shipbuilder Austal, U.S.A., alleged that they were subjected to a racially hostile work environment. The district court granted summary judgment in favor of the company on the claims of 13 of the employees on the grounds that their work environments were not objectively hostile. On appeal, the Eleventh Circuit affirmed the summary judgments against six of the employees. The court reasoned that these employees could not rely on evidence of which they were not personally aware to prove that their work environment was objectively hostile. This result makes sense and comports with the decisions of numerous other courts on the same issue.
The Eleventh Circuit reversed the district court's summary judgment against seven of the plaintiffs on the grounds that these employees personally were exposed to numerous incidents of racial slurs, racial graffiti, and, notably, the display of the Confederate flag in the workplace.
To be clear, the court did not hold that a single instance of an African American employee's exposure to the Confederate flag constitutes actionable discrimination. Nevertheless, exposure to the Confederate flag was part of the "totality of the circumstances" that may have created a hostile work environment for the seven employees whose cases were reversed.
Based on the Adams decision, employers may want to consider banning all displays of the Confederate flag in the workplace.
And in case you were wondering, the display of the Confederate flag is not likely to be deemed protected activity. In Storey v. Burns International Security Services (3d Cir., December 9, 2004), the plaintiff argued that Title VII's ban on national origin and religious discrimination protected the display of the Confederate flag because being "Confederate Southern-American" is a national origin, and the Confederate flag is a religious symbol because it incorporates the cross of Saint Andrew. The court rejected this argument, holding that an alleged "personal need to share [one's] heritage cannot be equated with something endemic to national origin or a religiously mandated observance."