Third Circuit Affirms Injunction Enjoining Public Agency from Banning “Black Lives Matter” Masks in the Workplace

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By Kristine V. Ryan, Esq.

The Third Circuit recently affirmed a District Court’s preliminary injunction preventing a public employer from enforcing its policy against “Black Lives Matter” face masks in the workplace because it violated employees’ First Amendment rights.  The precedential decision is Amalgamated Transit Union Local 85 v. Port Auth. of Allegheny Cnty., 39 F.4th 95 (3d Cir. 2022).

In April 2020, the Port Authority of Allegheny County required its employees to wear face masks.  Because the Port Authority was unable to procure masks for all employees at that time, employees supplied their own.  Some employees chose to wear masks conveying political or social-protest messages including “Black Lives Matter”.  The Port Authority, which had a laxly enforced uniform policy that prohibited employees from wearing buttons of a political or social protest nature, extended this policy to include face masks and disciplined employees wearing “Black Lives Matter” masks for violating that policy.  After the Port Authority procured more masks, it revised the policy to specify masks that may be worn and expressly stated that masks may not have any logos or writing, other than the Port Authority or union logo. The disciplined employees, along with their union, sued the Port Authority alleging it had violated their First Amendment rights.  The District Court entered a preliminary injunction rescinding the discipline and preventing Port Authority from enforcing the policy against “Black Lives Matter” masks.  The Port Authority appealed.  The Third Circuit affirmed.

Citing Supreme Court precedent, the Third Circuit recognized that speech by government employees receives less protection than speech by members of the public.  However, a court considering a restriction on employee speech must engage in a fact intensive inquiry and arrive at a balance between the interests of the employee as a citizen commenting upon matters of public concern and the interests of the State as an employer in promoting the efficiency of the public services it performs.  Here, the employees’ masks bore messages relating to matters of public concern in which they had a strong interest in commenting.  In contrast, the Port Authority – which itself supported the Black Lives Matter movement and previously allowed employees to wear political buttons and hats in violation of its own policy – could demonstrate only minimal risk that the masks would cause workplace disruption.  The Port Authority, which bore the burden of showing that its policy is constitutional, failed to show the broad range of expression prohibited by the policy will cause disruption to its operations, nor did it show that its policy was narrowly tailored to address real (and not merely conjectural) harm in a direct and material manner.  That the policy was facially neutral, and made it easier for employees to comply with the policy, did not justify the broad bans it imposed.

After balancing the applicable factors required to determine whether a preliminary injunction should issue, the Third Circuit held the District Court did not abuse its discretion.  In doing so, the Court expressly stated that its decision was narrow and limited to the specific facts and circumstances at issue and did not mean the Port Authority could not prohibit employee masks with messages that categorically fall outside the scope of First Amendment protection, including messages that do not implicate matters of public concern.   While the requirement of masks in the workplace are waning, the decision provides guidance to public employers with respect to creating and enforcing uniform policies in the workplace. 

Please contact an NFC team member if you have any questions or seek further assistance.


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