Jan 31

Lost Cause: The Campaign to Make “Confederate-Americans” a Protected Class

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Fifty-four years after South Carolina re-raised the Confederate Battle Flag, it will no longer fly on state capitol grounds. But those who are celebrating the removal of the flag have their work cut out for them. You can’t throw a rock in the South without hitting the flag. Like the song goes, old times there aren’t soon forgotten – and some modern-day rebels don’t want their co-workers to forget those old times. In a strange twist, these rebels argue that they’re a national-origin group – “Confederate Southern-Americans” – and that denying them the right to stick their Confederate Battle Flag decals to their toolboxes is national-origin discrimination under Title VII of the Civil Rights Act.

I. The Dearth of a Nation: Federal District Courts Hold that “Confederate Southern-Americans” Aren’t a National-Origin Group

The federal courts addressed the question of whether “Confederate Southern-Americans” were a national-origin in Chaplin v. Du Pont Advance Fiber Systems, 293 F.Supp.2d 622 (E.D. Va. 2003). In Chaplin, seven Virginia-based employees of Du Pont wore Confederate Battle Flag belt buckles and t-shirts and stuck Confederate Battle Flag bumper stickers to their vehicles. Du Pont subsequently banned all employees from wearing or displaying any Confederate symbols at work. The seven employees complained that the flag ban “discriminated” against them. Sure enough, a Du Pont manager confirmed, “I’m discriminating against you, and there ain’t nothing you can do about it.”

Nonetheless, Du Pont didn’t so much as slap any of the employees on the wrist, though when one of them showed up to a company-sponsored “multicultural workshop” in a Confederate Battle Flag t-shirt, management made him sit in the back of the room. Unable to persuade Du Pont to lift its flag ban, the seven modern-day rebels hired North Carolina attorney Kirk Lyons, the de facto general counsel to the white supremacist movement, and sued Du Pont for, among other things, “discriminating” against them based on their “national origin” in violation of Title VII. The nation from which the employees claimed to originate: the Confederate States of America.

The court held that “Confederate Southern-American” wasn’t a “national-origin group” and granted Du Pont’s motion to dismiss. But the court declined to explain why “Confederate Southern-American” wasn’t a national-origin group. Instead, the court cited to Terrill v. Chao, 39 Fed.Appx. 99 (4th Cir. 2002), an unpublished decision that reached the same conclusion – also without explaining why “Confederate Southern-American” wasn’t a national-origin group. Even if the Chaplin court had found that the Du Pont employees belonged to a national-origin group, such a finding wouldn’t have affected the outcome, as not one of them lost his job, took a pay cut, or experienced any other adverse employment action.

II. Same Storey: The Third Circuit Ducks the Question of Whether “Confederate Southern-Americans” Are a National-Origin Group

Chaplin wasn’t the last time an employee sued to vindicate his “right” to wear or display the Confederate Battle Flag at work. In Storey v. Burns International Security Services, 390 F. 3d 760 (3rd Cir. 2004), Curtis Storey, a Pennsylvanian whose family hailed from the South, was yet another employee who wanted to stick Confederate Battle Flag decals to his lunchbox. His employer, Burns International Security Services, asked him to remove the decals because they could offend his co-workers. Storey noted that he, as a Christian, took offense to his co-workers’ profanity, but nonetheless accepted it. Burns concluded that Storey had “resigned” and took him off the payroll.

But Storey didn’t believe he had “resigned” from Burns, and the next day, he headed back to work. When Storey arrived at work, a guard denied him entry and explained (allegedly) that the company had “fired” Storey “because of his stickers.” Storey promptly hired Lyons and sued Burns for discriminating against him based on his national origin in violation Title VII. Like the employees in Chaplin, Storey claimed that Burns fired him because he was a “Confederate Southern-American.” Storey elaborated that “Confederate Southern-Americans” were a national-origin group because its members shared a “common culture” and “history of persecution” dating back to the Civil War era.

Storey’s case for national-origin discrimination seemed stronger than the Du Pont employees’ story because, unlike them, he undoubtedly experienced an adverse employment action – he lost his job. The trial, however, court granted Burns’ motion to dismiss, and Storey appealed. The Third Circuit affirmed. Like in Chaplin, the Third Circuit ducked the question of whether “Confederate Southern-Americans” were a national-origin group. In fact, the Third Circuit assumed for the sake of argument that Storey’s allegations were true, but held that he still couldn’t have prevailed – the reason being that Burns’ firing of Storey somehow wasn’t an “adverse employment action.”

III. Part of the South Shall Rise Again: Why West Floridians Are a National-Origin Group

The Third Circuit clearly erred in Storey by holding that Storey’s termination wasn’t an adverse employment action. Evidently, the Third Circuit felt that it had to find some way to affirm the trial court’s dismissal – and the only other way to have done so would’ve been to conclude that “Confederate Southern-Americans” weren’t a national-origin group. But the Third Circuit couldn’t have reached that conclusion. The term “national origin” under Title VII can mean any “place,” not just any “nation,” in which one’s ancestors lived.1 Thus, courts have held that Cajuns, Gypsies, Native Americans, and other “stateless” peoples are all national-origin groups.2 

Courts should have even less trouble finding that “Confederate Southern-Americans” are a national-origin group. The Southern states certainly believed they had formed an independent nation, the Confederacy, and they sacrificed 260,000 men to prove it. But the U.S. Supreme Court disagreed that the Confederacy was ever an independent nation. In Texas v. White, 74 U.S. 700 (1869), Chief Justice Salmon B. Chase, a Lincoln appointee, wrote that the Framers of the Constitution, having sought to “form a more perfect Union,” made the Union “perpetual” and “indestructible.” Therefore, the South didn’t leave the Union, even if it believed it had done so.3

Even  assuming the Confederacy was never a “real” nation, that doesn’t mean “Confederate Southern-Americans” aren’t a real national-origin group. The Equal Employment Opportunity Commission (EEOC) simply defines the terms “national-origin group” as “a group of people sharing a common language, culture, ancestry, and/or other similar social characteristics.”4 In other words, just about any group that thinks it’s a national-origin group is a national-origin group. For obvious reasons, however, federal courts have a policy of dismissing national-origin discrimination claims where the plaintiff alleges that his origin is a state or region of the United States.5

But federal courts have held that an individual whose ancestors’ “nation of origin” existed in North America before the United States (i.e., Native Americans) can belong to a national-origin group.6 Thus, if an employer discriminates against Hopis in favor of Navajos, he will be liable for national-origin discrimination, even if he wouldn’t be liable for racial discrimination.7 But the rule that anyone whose ancestors’ North American “nation of origin” predated the United States belongs to a national-origin group could mean that those whose ancestors lived in the short-lived Republic of Texas or the even shorter-lived Republic of West Florida also belong to national-origin groups.8

The vague nature of the term “national origin” and the judicial recognition of certain stateless peoples as national-origin groups have forced courts to duck the question of whether “Confederate Southern-Americans” are also a national-origin group. The federal district court in Chaplin cited to the Fourth Circuit’s non-precedential decision in Terrill to find that “Confederate Southern-Americans” weren’t a national-origin group. Meanwhile, the Third Circuit in Storey avoided the issue altogether. The question of whether “Confederate Southern-Americans” are also a national-origin group, then, remains unsettled. Consequently, the South and its flag might yet rise again in a workplace near you.

  1. Dawavendewa v. Salt River Project Agricultural Improvement & Power Dist., 154 F.3d 1117, 1119 (9th Cir. 1998). 

  2. Roach v. Dresser Indus. Valve & Instrument Div., 494 F.Supp. 215, 216 (W.D. La. 1980)(Cajuns); Janko v. Illinois State Toll Highway Auth., 704 F.Supp. 1531, 1532 (N.D. Ill. 1989)(Gypsies); Dawavendewa v. Salt River Project Agricultural Improvement & Power Dist., 154 F.3d 1117, 1119 (9th Cir. 1998)(Native Americans); see also Metoyer v. State of Kansas, 874 F.Supp. 1198 (D. Kan. 1998)(suggesting Creoles were also a national origin). 

  3. Texas v. White, 74 U.S. 700, 725 (1869). 

  4. EEOC Compliance Manual 13-II(B); see also SaintFrancis College v. Al-Khazraji, 481 US 604, 614 (1987)(Brennan, J., concurring). 

  5. Fowler v. Visiting Nurse Serv. of N.Y., 06 CIV. 4351 (NRB), 2007 WL 3256129 (S.D.N.Y. Oct. 31, 2007) (explaining that “the regional differences among the people of this country do not create protected classes”); Langadinos v. Appalachian Sch. of Law, 1:05CV00039, 2005 WL 2333460, at *8 (W.D. Va. Sept. 25, 2005) (holding that plaintiff’s background in the Northeastern part of the United States was not a protected trait); Williams v. Frank, 757 F.Supp. 112, 120 (D. Mass. 1991)(mentioning that plaintiff’s “Southernness” was not a protected trait). 

  6. Dawavendewa, 154 F.3d at 1119. 

  7. Id

  8. See, e.g, United States v. Texas, 339 U.S. 707, 717-718 (1950)(indicating that “Texas prior to her admission was a Republic,” but “[w]hen Texas came into the Union, she ceased to be an independent nation”); Charrier v. Bell, 547 F.Supp. 580, 585 (M.D. La. 1982)(noting that “Louisiana’s ‘Florida Parishes’ became a part of the United States only after rebellion, declaration of independence by the short-lived West Florida Republic[,] and petition to the United States for annexation”). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.