By Matthew Santoni

Law360 (September 30, 2020, 5:17 PM EDT) -- A union representing employees at the Port Authority of Allegheny County, Pennsylvania, filed a federal lawsuit Wednesday claiming that a uniform policy banning workers from wearing masks that say "Black Lives Matter" violated the workers' freedom of speech.

The Port Authority — which operates buses, light rail and incline services in and around Pittsburgh — had previously spread messages showing support for LGBTQ Pride, Black History Month, women's rights, the victims of the October 2018 Tree of Life Synagogue shooting, and Pittsburgh police after three officers were killed by a white supremacist in 2009, the complaint said, but the agency barred workers from wearing face masks with messages supporting the Black Lives Matter movement.

"The Port Authority opines on one hand that it supports Black Lives Matter, but then threatens to discipline employees if they silently express support by wearing a mask stating 'Black Lives Matter.' Such conduct is a per se violation of the employees' rights to free expression," said the complaint, which was filed in Pittsburgh's federal court by the Amalgamated Transit Union Local 85 and three employees.

The lawsuit claims Port Authority — sometimes abbreviated as PAT — violated its employees' rights to free speech and equal protection under the First and 14th Amendments of the U.S. Constitution, and their freedom of association as guaranteed by the Pennsylvania Constitution. The suit asked the court to declare the policy illegal and to make the agency undo any discipline it had imposed upon workers for allegedly violating the policy.

According to the lawsuit, Port Authority revised its employees' uniform policy on July 23 to say that "Buttons, stickers, jewelry and clothing (including masks or other face coverings) of a political or social protest nature are not permitted to be worn." The union said employees, who had previously been required to wear masks because of the COVID-19 pandemic, had not initially faced any discipline, pushback or service disruptions when some started to add messages to their masks supporting the Black Lives Matter movement following the death of George Floyd in police custody.

The policy contradicted previous practices of allowing buttons and signs on buses that supported similar causes, the suit said.

On Aug. 5, plaintiffs Sasha Craig and Monika Wheeler, who are "first level supervisor/instructors" for Port Authority, were warned that they could not work while wearing the "Black Lives Matter" masks they brought to work that day, and when they refused to change, they were barred from performing their duties, the suit said.

Union steward James Hanna, another of the named plaintiffs, was wearing a similar mask when he came onto Port Authority property on Aug. 13 to represent another employee in a grievance proceeding when a Port Authority supervisor conducting the disciplinary hearing told him to take it off, the suit said.

"Upon being told to remove the 'Black Lives Matter' mask, Mr. Hanna refused to do so. He was given a direct order to remove it and again refused," the complaint said. "He was then advised that PAT was canceling the remainder of the grievance hearings and was sent home and told to await a call for a disciplinary hearing to impose discipline upon him."

The union said it warned Port Authority that it thought the uniform policy was unconstitutional and threatened a lawsuit. A demonstration in early September outside the authority's downtown Pittsburgh offices prompted CEO Katharine Kelleman to release a statement that Port Authority supported the movement's campaign against harassment and injustice.

"Port Authority's uniform policy isn't directed at Black Lives Matter or any other specific message, group or ideology," Kelleman's statement said. "While private businesses have the ability to permit employees to display certain messages while preventing other employees from displaying other messages, federal law prohibits public agencies such as Port Authority from doing the same … In legal terms, our policy is viewpoint neutral and simply aims to keep our transit system from being disrupted unnecessarily."

The union, however, contended that the restriction was content-based and illegal and accused the agency of singling out Black Lives Matter.

"The Authority's policy also constitutes unconstitutional viewpoint discrimination, racially tainted, and motivated by animus towards the BLM movement, and equal justice," the complaint said. "By effectively prohibiting only the expression of support for the BLM movement, the Authority has engaged in viewpoint discrimination in violation of plaintiffs' rights under the First Amendment as incorporated by the 14th Amendment to apply to the Commonwealth of Pennsylvania and its instrumentalities."

A representative of the Port Authority declined to comment on the lawsuit Wednesday.

Joseph Pass of Jubelirer Pass & Intrieri PC, representing the union, told Law360 that Port Authority was the only transit agency he knew of that had implemented such a policy.

"Just because they're public employees doesn't strip them of their rights under the Constitution," he said.

ATU Local 85 and the individual employees are represented by Joseph J. Pass and Patrick K. Lemon of Jubelirer Pass & Intrieri PC.

Counsel information for the Port Authority was not immediately available.

The case is Amalgamated Transit Union Local 85 et al. v. Port Authority of Allegheny County in the U.S. District Court for the Western District of Pennsylvania. It did not yet have its own case number Wednesday.

--Editing by Haylee Pearl.

For a reprint of this article, please contact reprints@law360.com.