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Allowing Bus Worker BLM Masks Is Viewpoint Bias, Agency Says

Dec. 7, 2021, 10:30 AM

A Pennsylvania federal judge’s order that only bars enforcement of a restriction on political and social messaging on employee uniforms with respect to Black Lives Matter is unconstitutional, the Allegheny County Port Authority will tell the Third Circuit on Tuesday.

The U.S. District Court for the Western District of Pennsylvania’s order forces the Pittsburgh-based agency to engage in constitutionally prohibited “viewpoint discrimination,” it said in briefing in advance of oral argument. The port authority is the commonwealth’s second largest public transit agency and the U.S.'s 26th largest.

Judge J. Nicholas Ranjan wrongly discounted evidence of likely disruption that will ensue, in a Jan. 19 ruling allowing bus operators, supervisors, and other employees to continue wearing masks or other garments showing support for BLM, the agency said.

The district court “refused to consider the potential harm that might result if Port Authority employees wore other political or social protests facemasks (in addition to Black Lives Matter facemasks),” the agency said in briefing in advance of oral argument.

Wearing face masks on the job came in April 2020 in the wake of the Covid-19 pandemic, and some employees began wearing masks bearing BLM messaging after George Floyd “died in Minnesota after being handcuffed and pinned to the ground by” a White police officer, the authority said.

It updated its ban on employees wearing pins or other adornments on their uniforms carrying political or social messages, which had been in place since the 1970s, after an employee complained about workers wearing BLM face coverings and asked what the work repercussions would be if he wore a “White Lives Matter” mask, the authority said.

Sanctioning Bias

In granting a workers’ union a preliminary injunction against enforcement of the updated policy, Ranjan wrongly suggested that despite being a public employer, the authority could engage in viewpoint discrimination by allowing some, but not all, facemasks bearing political or social protest statements, it said.

Its revised uniform policy is designed for the authority to remain “viewpoint neutral,” despite its public support for the BLM movement, the agency said.

Ranjan didn’t block enforcement of the revised policy in its entirety, the agency said.

He instead only barred enforcement with regard to employees wearing BLM-related facemasks, and said the agency could assess other political and social messaging on uniforms on a case-by-case basis, it said.

But allowing employees to wear messaging on a particular topic that is viewed as “peaceful” or “kind” while banning other employees from wearing messaging on the same topic that’s viewed as “hateful” or “unkind” is prohibited viewpoint bias by a government employer under the First Amendment, the authority said.

Recent U.S. Supreme Court precedent confirms as much, it said.

Disruption Likely

The trial court also mistakenly found the authority’s concern about service disruption if employees wear BLM messaging while working unreasonable, the authority said.

The court said no riders had complained and no employee conflicts had erupted in the workplace during the first few months when employees occasionally wore BLM facemasks.

But the agency’s ridership had “plummeted by upwards of 70% during the summer of 2020" as a result of the Covid-19 pandemic, the authority said.

Other evidence indicated that a service or operations disruption was likely if employees, who are constitutionally free to protest as they like when off the clock, are permitted to wear BLM messaging on the job, the agency said.

That evidence includes general violence, vandalism, and looting during a BLM social protest in downtown Pittsburgh on May 31, 2020, and the harassment of restaurant patrons during another BLM protest in the city, it said. It also included heated social meeting exchanges among union members regarding political and social messaging and an employee being called a racist for wearing a Thin Blue Line facemask while on duty to support the police, the agency said.

It has a significant interest in maintaining a stance of neutrality on political and social issues that outweighs its workers’ free speech rights, which are reduced while they’re on duty because they’re public employees, the authority said.

Enforcement Lax

But the authority enforced its uniform policy barely, if at all, prior to workers wearing BLM masks “in the wake of the murder of George Floyd while in police custody,” Local Amalgamated Transit Union Local 85 will tell the U.S. Court of Appeals for the Third Circuit.

For nearly five decades after the policy was put in place, port authority workers wore buttons and other uniform adornments expressing support for political candidates, the union said in its brief. They also expressed support for gay pride, Black power, MAGA, “the peace symbol,” and various other causes or movements, it said.

They did so while on duty and “without censure or discipline,” the union said.

Yet the agency unilaterally changed its policy and began enforcing “for the first time ever” its ban on political and social messaging while on duty by directing employees to remove BLM masks and sending them home or otherwise reprimanding or disciplining them when they refused, the union said.

The authority doubled-down on its “blatant censorship” of BLM support when it later again revised its policy to limit the facemasks that workers can wear on duty to “a few acceptable styles,” the union said.

That further frustrated its members free speech rights and the union’s goal of promoting equal justice in the face of the “repeated murder of People of Color at the hands of the police,” Local 85 said.

High-Value Speech

Wearing BLM facemasks “is a matter of utmost public concern” and, like other political and social protest messaging, “is the very core type of speech the First Amendment protects,” the union said.

The judge properly found the agency’s concern about potential disruption was too speculative, it said.

The authority’s blanket prohibition on silent, “passive peaceful expression in support of BLM” and similar workplace speech is therefore “too sweeping and vague to pass constitutional muster,” it said.

Judge Ranjan didn’t suggest the agency “could or should engage in viewpoint discrimination,” the union said. His ruling only involved the speech and issues before him, it said.

This isn’t a case where an employee wore a swastika or another symbol of racial, ethnic, or other hatred, it said.

It may be reasonable for public employers to view such expressions “as potentially disruptive,” but the agency’s “assertion that if it allows one message, it must allow all is fanciful,” the union said.

Jubelirer, Pass & Intrieri PC represents the union and other plaintiffs. McGuireWoods LLP and Campbell Durrant PC represents the authority.

The case is Local 85 v. Port Auth. of Allegheny Cty., 3d Cir., No. 21-1256, oral argument 12/7/21.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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