On June 30, the Third Circuit ruled that Allegheny Port Authority’s (Port Authority) policy prohibiting political and social adornments on employee uniforms is likely unconstitutional.

In April 2020, Port Authority began requiring its uniformed employees to wear masks at work. When some employees wore masks bearing political or social-protest messages, Port Authority prohibited such masks out of concern they would disrupt the workplace. Several employees who wore masks expressing support for Black Lives Matter were disciplined under the policy. The employees, together with their union, filed suit alleging that Port Authority’s policy violated their First Amendment rights. The Western District of Pennsylvania entered a preliminary injunction rescinding the discipline and preventing Port Authority from enforcing its policy. On Wednesday, the Third Circuit affirmed the District Court’s order.

The Third Circuit noted that government employers may limit speech of their employees more than they may limit speech of the public, but those limits must still comport with the protections of the First Amendment. It held that Port Authority did not meet its burden of showing its policy is constitutional.

When employees speak as citizens, rather than pursuant to official duties, on matters of public concern, the Court applies a balancing test that weighs an employee’s interest in speaking against the government employer’s interest in quelling such speech. The Third Circuit found that Port Authority employees were speaking as citizens and that the mask rules restricted speech on matters of public concern. Indeed, the policy was instituted specifically to prevent commentary on political and social issues. Accordingly, to establish the constitutionality of its policy, Port Authority had to show its interests outweighed those of its employees.

The Third Circuit upheld the District Court’s finding that Port Authority failed to make this showing because it could not demonstrate more than a minimal risk of workplace disruption. Further, Port Authority itself publicly supported Black Lives Matter and consistently allowed employees to wear social protest and political buttons on their uniforms without incident, despite having a longstanding policy prohibiting such buttons.

The Third Circuit also found a subsequent modification to the mask policy, which restricted masks to limited styles and colors, to be likely unconstitutional. Specifically, the Court reasoned:

For many years, Port Authority has not enforced its political-button prohibition. And it became concerned about political masks in response to growing division over the messages on those masks. These facts suggest that the prevailing political conditions, rather than employees’ mode of speech, dictates how contentious employees’ workplace political debates will be.

As a result, Port Authority failed to show the mask ban was sufficiently tailored to address the service disruption concern it advanced in support of the policy.

Public employers that restrict social and political messages by employees during working hours should carefully review their policies to make sure they are consistently enforced and narrowly tailored to address the concern posed by such speech in the workplace. Should you need assistance with this, the Labor and Employment attorneys at Ballard Spahr LLP have experience advising public and private employers in policies and compliance and any other labor-related issues that may arise.