PHILADELPHIA (CN) — Defending its refusal to let uniformed employees display a political or social protest message, the Allegheny County Port Authority told the Third Circuit on Tuesday that it could open a can of worms for other messages if it allows face masks proclaiming Black Lives Matter.
“What happens when someone wants to wear a Confederate flag mask,” asked Greg Krock, representing the Port Authority. “We’ve had an employee threaten to wear a ‘White Lives Matter’ mask.”
The policy took effect in July 2020 during the Covid-19 pandemic and a time of nationwide social unrest over the murder of George Floyd at the hands of a Minneapolis police officer. Since employees had to wear masks, a few began sporting ones that read Black Lives Matter, or the abbreviation BLM.
The Port Authority says other employees began to complain, but the employees disciplined for wearing the BLM masks under the new uniform policy filed suit with their labor union the following September.
In January, a federal judge granted the employees a preliminary injunction, finding that, though well intentioned, the policy improperly restricted speech.
With the Port Authority now seeking a reversal, Krock told the panel Tuesday that it's as simple as requiring employees to confine their support of Black Lives Matter to when they are off the clock.
“This is not about what an employee does on their own time,” the McGuire Woods attorney said. “This is about what’s done on duty.”
U.S. Circuit Judge Patty Shwartz pressed Krock on an issue she felt undermined his argument.
“The Port Authority embraced the Black Lives Matter movement,” said Schwartz, an Obama appointee. “How is it OK for the employer to support this view but it's not OK for the employees?”
Shwartz had been referring to a statement that Port Authority CEO Katharine Kelleman issued after the employees sued in September.
"I want to be absolutely clear: Port Authority unequivocally believes that Black lives matter,” Kelleman said in the statement at the time.
Krock noted that it is fine for the public agency to have a stance, but the employees should not express their stance while in uniform.
Shwartz pressed Krock again on how he distinguishes between BLM and "Stronger Than Hate," a message the city of Pittsburgh adopted and put on all sorts of apparel, some worn by Port Authority employees, after the Tree of Life Synagogue shooting that killed 11 people.
Krock said Stronger Than Hate was a message taken on by the Port Authority, along with the entire city, and was important to demonstrate since the buses go through those communities.
Joseph Pass, an attorney representing the employees, noted meanwhile that minorities are the predominant population in the communities where the Port Authority operates.
“More than 50% of the population using public transportation are minorities,” said Pass. “And 47% of the employees are minorities.”
Pass added that public employees have a constitutional right to speak about issues of public concern.
U.S. Circuit Judge David Porter questioned Pass on where the line should be drawn, referencing a Confederate flag, Make America Great Again and other politically charged sentiments.
The Jubelirer Pass and Intrieri attorney said that those are viewpoints that should also be allowed, but distinguished between BLM and the Confederate flag.
“A Confederate flag caused a war in this country," said Pass. “I don’t think BLM is causing a war.”
Porter, a Trump appointee, pushed back.
“The summer of 2020 looked like a war in some cities,” said Porter.
Neither Pass nor Krock immediately responded to emails seeking comment.
U.S. Circuit Judge Mike Fisher, a George W. Bush appointee, rounded out the panel.
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