Labor & Employment Law Daily County employer ban on employees wearing ‘Black Lives Matter’ facemasks enjoined
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Monday, January 25, 2021

County employer ban on employees wearing ‘Black Lives Matter’ facemasks enjoined

By Ronald Miller, J.D.

The government can restrict or punish workplace speech only if it is, in fact, likely to be disruptive of the workplace.

Employees of the Allegheny County Port Authority were granted a preliminary injunction against the employer’s ban on the wearing of facemasks with political messages, including support for the Black Lives Matter movement. The employer’s sweeping ban on facemasks displaying any “political or social-protest” message was based only on a generalized and speculative fear that a “political or social-protest” message, passively displayed on a facemask, might cause other employees, or members of the public, to engage in more disruptive counter-speech, the federal district court in Pennsylvania stated (Amalgamated Transit Union Local 85 v. Port Authority of Allegheny County, January 19, 2021, Ranjan, J.).

The employer is a public transportation authority employing over 2,700 employees, including approximately 1,700 bus operators and 600 to 700 maintenance employees. Its employees are represented by a labor union. To promote “consistency” and ensure that its employees are representing it in a cohesive manner, the employer requires its employees to wear a uniform while on the job.

Mask policy. Since 1972, the employer has prohibited its employees from wearing uniform adornments, such as buttons and stickers, that reflect “political or social-protest” messages. It did so based on its belief that such messages were likely to lead to disruption in the workplace. Over the years, the employer’s enforcement of its ban on political and social-protest uniform adornments has been lax and largely non-existent. Employees often wore political buttons and other items that seemingly violated the policy, and they were rarely, if ever, disciplined for doing so.

In the wake of the COVID-19 pandemic, the employer directed its employees to wear a facemask as a part of their uniform. Many employees chose to wear masks that reflected political or social-protest messages related to “Black Lives Matter.” The employer itself publicly supported the “Black Lives Matter” movement.

The employer became aware of employees wearing “Black Lives Matter” masks after a complaint from another employee, who asked how management would feel if he wore a “White Lives Matter” mask in response. Thereafter, the employer adjusted its policy to prohibit employees from wearing “Black Lives Matter” masks, by extending its preexisting policy against uniform adornments containing political or social-protest messages to apply to facemasks.

Following the policy change, several union employees were disciplined or threatened with discipline for wearing “Black Lives Matter” masks. In attempting to enforce its facemask policy, the employer found it difficult to navigate the “gray area” of deciding what was or was not prohibited. As a result, it sought to make its mask policy “easier” and “clearer to comply with.” Thereafter, it promulgated a new and more restrictive policy that required employees to wear one of a few specified facemasks and banning all others.

Injunction request. This suit was brought by four of those disciplined employees, along with their labor union. They sought a preliminary injunction against enforcement of the mask policy, arguing that it violates the First Amendment because the employer did not have a substantial interest in prohibiting its employees from engaging in innocuous expressions of personal, political, or social views. For its part, the employer argued that, in the context of managing its workplace, it had a strong interest in heading off potential employee conflicts and customer-relations issues, and that the political and social-protest speech it sought to ban was likely to create just those sorts of problems.

Evidence of disruption. The government can restrict or punish workplace speech only if it is, in fact, likely to be disruptive of the workplace. And when such restrictions are challenged in a lawsuit, the government must support its predictions of disruption with specific evidence, that is, at least evidence that disruption can reasonably be expected to occur.

Here, the employer’s sweeping ban on facemasks displaying any “political or social-protest” message was based only on a generalized and speculative fear that a “political or social-protest” message, passively displayed on a facemask, might cause other employees, or members of the public, to engage in more disruptive counter-speech. The court explained that the employer’s policy was arbitrary and overbroad, while its predictions of likely disruption were unsupported by the evidence.

In fact, there was no evidence that any member of the public had complained to the employer about a bus driver, or any other employee, wearing a “Black Lives Matter” or other similar mask during the time-period where such masks were permitted. Moreover, there was no evidence that any work stoppage or strike was caused by an employee wearing a “Black Lives Matter” or other similar mask. Additionally, there was no evidence of any disruption of bus operations or reduction in employee productivity attributable to an employee wearing a “Black Lives Matter” or other similar mask. Further, there was no evidence of any instances of workplace violence, either between coworkers or with the public, attributable to an employee wearing a “Black Lives Matter” or other similar mask.

Neutral policy. Moreover, the court concluded that the employer’s subsequently adopted, facially “neutral” policy, requiring employees to wear one of a few specified facemasks, suffered from the same problems. The only proffered justification for the new policy remained the same—to prevent a perceived risk of disruption caused by employees wearing “political or social-protest” masks. An employer may not cure a First Amendment violation by restricting even more speech, explained the court.

“Mere incantations that a pristine uniform is necessary to provide safe public transportation” are “clearly insufficient” to justify broad restraints on non-disruptive employee speech like political buttons or masks. That was particularly so where the evidence overwhelmingly suggested that the employer’s uniform policy was laxly enforced, such that political and social-protest uniform adornments have been tolerated for years without incident. Despite the employer’s good faith desire to maintain a safe and productive workplace, the vast majority of the employee speech it banned here—including its effective ban on “Black Lives Matter” masks—would not materially undermine that goal. Moreover, the court observed that any truly disruptive behavior could readily be deterred and dealt with on a case-by-case basis, and likely by using non-speech-based means.

Issuance of injunction. Finding that the employer had not carried its burden to prove that any restrictions on its employees’ speech rights were constitutional, the court concluded that the union was likely to succeed on the merits of its First Amendment claim concerning the prohibition of masks with political or social-protest messages.

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