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The federal agency that oversees workplace discrimination is considering whether wearing attire with the Gadsden flag constitutes racial harassment.

The familiar insignia of the coiled rattlesnake above the words "Don't Tread on Me" was designed during the Revolutionary War in 1775 and has been a rallying symbol of conservatives and the Tea Party Movement.

But the EEOC said it received a complaint in January 2014 from an African-American federal employee about a coworker wearing a hat bearing the flag.

The complainant claimed the Gadsden flag denotes racism because its creator, Christopher Gadsden, was a slave trader.

The complainant alleged that the flag is a "historical indicator of white resentment against blacks stemming largely from the Tea Party."

The EEOC hasn't issued a final ruling on the case, saying that it needs more evidence about the context in which the hat was worn. The agency said in a preliminary ruling that the flag is not inherently racist, but acknowledged it has been displayed in racially-tinged situations.

However, if the agency determines that the flag is offensive, all employers - private and public - where employees wear the flag could be held liable for workplace harassment if they receive complaints.

Read more on The Washington Post's "Volokh Conspiracy" blog.

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