In 2004, the Kentucky director of state parks issued a dress code policy that set rules governing hair length for men, body piercings, tattoos, and uniforms. Employees who failed to comply with the policy were subject to suspension and termination.

In May of 2004, three seasonal maintenance employees were found to be working without their shirts tucked in. One of the employees also had a “USN” tattoo on his arm. The employees, who each had spotless work records and four-to-six years on the job, were terminated.

The workers filed several claims against the park director and Kentucky claiming wrongful discharge under the First Amendment free speech rights, equal protection, due process, and the Kentucky Civil Rights Act.

The appeals court dismissed all of the claims on the basis that a government entity has “broad discretion” to regulate employee speech, as long as it does not become a matter of public concern. The court found no evidence that failure to tuck in shirts was an expression of speech on a matter of public concern. The court conceded that the one employee’s U.S. Navy tattoo could be considered free speech, if the employee was using the tattoo to express support for the military and in an effort to contribute to serious public discussion of the issue. However, because the tattoo was in violation of the workplace dress code, the court deferred from ruling on the tattoo issue.

The due process claims were dismissed because the employees were not found to have any property interest in their jobs. The equal protection claims were dismissed because the policy was equally applied and there was no disparate impact in its application. Finally, the state civil rights act failed because there appeared to be no discrimination based on disability, race, color, religion, or national origin.