Government Agency Gets OK for Dress Code Change

December 20, 2006 ( - A federal appellate court has turned aside constitutional objections by three fired employees who claimed their violation of a new dress code imposed two years ago by the Kentucky State Parks was a deliberate act of protest.

The 6 th  US Circuit Court of Appeals upheld a ruling by US District Judge Danny Reeves of the US District Court for the Eastern District of Kentucky that officials had the right to impose a series of personal appearance rules covering hair length for men, body piercings, tattoos and “proper wearing of the prescribed uniform.”   Employees were told that meant uniform shirts and blouses had to be tucked in and they faced possible suspension or firing for failing to comply.

Plaintiffs Genell Roberts, Sandra Dale, and William Leslie were fired in May 2004 for having untucked shirts – which they said was a deliberate act of defiance to protest the new policy. In addition, one employee complained that the department took issue with a “USN” tattoo on his arm.

The workers’ resulting suit included several claims against the park director and the Commonwealth of Kentucky alleging wrongful discharge under First Amendment free speech rights, equal protection, due process and the Kentucky Civil Rights Act. The employees also complained of the uniform policy as well as the prohibition against tattoos.

The appellate court agreed with   Reeves that the claims had no merit. On the employees’ First Amendment issue, appellate judges noted the standard for such claims when the government was the employer was that the government entity has “broad discretion” to regulate employee speech as long as it does not involve a matter of public concern.

“The plaintiffs provide little argument to rebut the determination that untucked shirts do not amount to speech on a matter of public concern,” the appellate judges wrote. “There is no suggestion, for example, that they were untucking their shirts to express their opinion on some political question. Rather, they emphasize that the rule was arbitrary and unreasonable, and that they kept their shirts untucked because they were uncomfortable when they tucked them in.”

The court dismissed the due process claims, finding that the employees had no property interest in their jobs. Likewise, the equal protection claims were thrown out because the policy was equally applied and the employees failed to show a disparate impact in its application. The state civil rights act claims failed due to the absence of allegations of discrimination based on disability, race, color, religion or national origin.

Finally, judges held that the employee’s US Navy tattoo, if worn to show support for the military and in an effort to contribute to serious public discussion of the issue, might be protected speech. Finding the violation of the uniform policy was enough to warrant the dismissal of all the employees, however, the court put off a ruling on the tattoo issue.

The opinion in Roberts vs. Ward is here .