Burr Alert: Employee Relations, Title VII, and the Confederate Battle Flag

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Many workplaces situated below the Mason-Dixon line will employ both those who feel the Confederate flag is a vital part of their heritage and self-expression, and also those who see the Confederate flag as a symbol of racism, fear and intimidation. The issue and controversy surrounding Confederate flag-flying is by no means a new one. However, after the brutal and horrific slaying of nine African Americans at a prayer meeting in Charleston, and subsequent removal of the flag from official government buildings in several southern states, the Stars and Bars has recently become a flash point for southern tempers. What's a manager to do when one employee claims another's display of the flag makes her fearful? What if the flag-waver claims that it has no racial significance for him, but only historical pride? What if she retorts that the flag is creating a "hostile work environment" and threatens a harassment claim under Title VII of the Civil Rights Act of 1964? What if he answers that his right to fly the flag is actually protected by Title VII, under a "national origin" or "religious" category?

Many of these questions have been asked and answered in the courts. First, for the flag-waver: The federal courts have not embraced claims that Title VII protects the right to display the Confederate flag at work (either as a religious symbol or show of pride in national origin). For example, in Storey v. Burns Intern. Security Services, 390 F.3d 760, 761 (3rd Cir. 2004), a Pennsylvania security guard brought claims for discrimination based on his national origin (as a "Confederate Southern-American") and religion (Christian). He was asked to remove Confederate bumper stickers from his lunchbox and truck, and was terminated when he refused. The Third Circuit held that his termination was not because of his national origin or religion, but because of his failure to cover up the Confederate stickers despite the employer's request. Furthermore, his desire to display the stickers was not a sincerely held belief that was fundamental to his religious identity, and so the employer had no duty to accommodate his requests to keep them. The Court distinguished his case from a case involving a request for a Sabbath day off, and another involving a facial hair ban that violated a Muslim's religious requirement to grow a beard. These latter religious practices were endemic to a religiously mandated observance, as opposed to the plaintiff's personal (but not religiously mandated) need to share his heritage. An employee's display of the Confederate flag is not protected activity under federal discrimination laws.

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