A Pennsylvania transit agency’s policy prohibiting political and social adornments on employee uniforms that was updated to include Black Lives Matter messaging is likely unconstitutional and a lower court properly blocked its application against BLM supporters, the Third Circuit ruled Wednesday.
A subsequent policy revision by the Allegheny County Port Authority, which limited employees to wearing certain masks to allegedly make it easier for them to comply with the BLM messaging ban, also is likely unconstitutional and its enforcement was properly enjoined, the court said.
The agency, as a governmental entity, failed to meet its burden of showing each version of the policy was constitutional, the court said.
According to the agency, its uniform display policy was instituted in the 1970s and was updated once workers began wearing face masks during the Covid-19 pandemic with BLM messages stemming from the murder of George Floyd. The policy was changed again after the agency obtained enough face coverings to distribute to workers, the port authority said.
The US District Court for the Western District of Pennsylvania in a January 2021 ruling blocked the updated policy after the port authority was sued by a union representing bus operators, supervisors, and other employees.
The agency didn’t make its showing on constitutionality with regard to employees disciplined for wearing BLM masks after the policy was first updated because the workers had a strong First Amendment interest in conveying their social-protest message and allowing the employees to wear BLM masks would cause only minimal disruption to the agency’s workplace, the US Court of Appeals for the Third Circuit said.
Only one employee ever complained about other workers wearing BLM masks and the three race-related incidents among employees within the prior 15 years pre-dated and had nothing to do with employee face coverings, the court said.
The agency didn’t show its further revised policy is likely constitutional because its provisions weren’t narrowly tailored to any service disruption the agency might expect if it allowed employees to wear masks with BLM messaging, Judge David J. Porter said.
Political and social speech that would have no disruptive effect also falls under the ban, Porter said.
In addition, the harm to employees from not being allowed to wear BLM masks while the suit proceeds is greater than any the agency might experience if the policy’s enforcement isn’t enjoined until it’s determined whether the policy is lawful under the First Amendment, Porter said.
The public interest also favors allowing the injunction to remain in place until the constitutionality of the port authority’s policy is determined on the merits, Porter said.
Judges Patty Shwartz and D. Michael Fisher joined the opinion.
Porter also wrote a separate concurring opinion. The original policy update is also unconstitutional because, among other things, it invites viewpoint discrimination, he said.
Jubelirer, Pass & Intrieri PC represented the union and other plaintiffs. McGuireWoods LLP and Campbell Durrant Beatty Palombo & Miller PC represented the agency.
The case is Local 85 v. Port Auth. of Allegheny Cty., 3d Cir., No. 21-1256, 6/29/22.
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