Some excerpts from Wednesday’s long Ninth Circuit opinion in Brown v. Alaska Airlines, Inc., written by Judge Daniel Bress and joined by Judge Kenneth Lee and, in large part, by Judge Morgan Christen:
Alaska … maintains an internal intranet communication network that it calls Alaska’s World. Alaska’s World is visible to all Alaska employees, with the company describing it as a “key vehicle for employee communications.”
Alaska posts messages on Alaska’s World, and employees are invited to reply and comment. Alaska explained to employees that the “[c]omments are here for us to openly and constructively share ideas, ask respectful questions, and understand one another and our company.” According to Alaska’s employee guidance on posting, “[w]e’re a big team, inclusive of many people and perspectives,” and “[o]ur differences make us better when we support and respect each other, allowing each of us to be who we are.” The company has expressed its commitment to providing “a safe space culture where employees feel empowered to have open and critical dialogue with their peers and leaders.” …
On February 25, 2021, Alaska posted on Alaska’s World to announce the company’s support for the Equality Act. The Equality Act is proposed federal legislation that would extend certain federal nondiscrimination requirements to cover discrimination involving sex, sexual orientation, and gender identity in various contexts…. As was typical for Alaska’s World posts, Alaska allowed its employees to comment on the company’s Equality Act announcement.
Plaintiffs Marli Brown and Lacey Smith are Christians who worked as flight attendants at Alaska Airlines for eight and six years, respectively…. Shortly after Alaska posted about the Equality Act on Alaska’s World, Smith posted in response: “As a company, do you think it’s possible to regulate morality?” Smith’s comment prompted responses on Alaska’s World from other commenters, some of whom expressed disagreement…. Alaska did not initially remove Smith’s post but instead decided to respond to it on Alaska’s World, [writing] …:
Supporting the Equality Act is not about regulating morality. It’s about supporting laws that allow our LGBTQ+ employees and guests, no matter what state they live in or fly to, to be protected against discrimination. Our values are our guide, and we strongly believe that doing the right thing and being kind-hearted require us to support this act. As we said above, we aren’t the kind of company that stands by and watches—we’re going to use our voice and be a leader on these issues.
We also expect our employees to live by these same values. Our differences are to be respected. As stated in our People Policies, harassment and discrimination will not be tolerated.
In internal Alaska emails discussing this draft, Taylor Ball of Alaska’s legal department wrote, “Employees actually do not have the right to believe that LGBTQ rights are ‘immoral,'” to which Carmen Williams, Alaska’s Vice President of Inflight replied, “I 100% agree.”
Later that day, plaintiff Marli Brown independently saw Alaska’s post and … felt religiously compelled to post a response[, writing] …:
Does Alaska support: endangering the Church, encouraging suppression of religious freedom, obliterating women rights and parental rights? This act will Force every American to agree with controversial government-imposed ideology on or be treated as an outlaw. The Equality Act demolishes existing civil rights and constitutional freedoms which threatens constitutional freedoms by eliminating conscience protections from the Civil Rights Act. The Equality act would affect everything from girls’ and women’s showers and locker rooms to women’s shelters and women’s prisons, endangering safety and diminishing privacy. Giving people blanket permission to enter private spaces for the opposite sex enables sexual predators to exploit the rules and gain easy access to victims. This is Equality Act[.] …
That night, Alaska deleted Brown and Smith’s comments on Alaska’s World, shut down further comments, and began investigating both plaintiffs. The company subsequently changed its commenting rules to [among other things] … state that comments on Alaska’s World should not “express partisan or personal (such as religious or political) opinions.” Prior to that change, and referencing correspondence he received from a pilot who was concerned over Smith’s and Brown’s posts being taken down, Brad Tilden, the retiring CEO of Alaska, expressed concern to Alaska leadership “that we not [c]ensor people for having conservative Christian views.” …
Brown and Smith were eventually fired:
In Smith’s Notice of Discharge, Alaska based its termination on Smith’s violation of the company’s anti-harassment and anti-discrimination policies. The Notice of Discharge stated that “[d]efining gender identity or sexual orientation as a moral issue, or questioning the company’s support for the rights of all people regardless of their gender identity or sexual orientation, is not a philosophical question, but a discriminatory statement.” The Notice of Discharge found that Smith’s post “was offensive, discriminatory, and did not align with Alaska Airline’s values,” and that “we cannot tolerate speech that is discriminatory in nature or targets a group of individuals based on their legally protected characteristics.”
Unlike Brown, Smith had a prior disciplinary history, which Alaska referenced in its Notice of Discharge. Less than one year before Smith commented on the Equality Act initiative, she created an online petition entitled “Depoliticizing Alaska Airlines,” which opposed Alaska’s public support for the Black Lives Matter (“BLM”) movement. Smith viewed the company’s support for BLM as tantamount to promoting “a specific political party/ideology and creat[ing] bias.” Alaska issued Smith a thirty-day suspension for posting the petition and instructed her to take the petition down. Alaska told Smith that any misconduct in the 18 months following her suspension could result in termination. Smith’s post on Alaska’s World fell within this window….
Both sued under Title VII, claiming the firing was based on their religious opinions, and the Ninth Circuit allowed the claims to go forward:
The fact that Brown was terminated after posting a facially religious statement, by a company (and cooperating union) that understood the religious basis for the post, provides the initial grounding for a genuine dispute of material fact regarding whether Alaska terminated Brown because of her religious beliefs…. [O]ther circumstantial evidence … [also] supports the inference that Alaska may have terminated Brown based on her religious beliefs. Internal Alaska emails showed the company discussing how “[e]mployees actually do not have the right to believe that LGBTQ rights are ‘immoral.'” And the change in company policy that Brown’s post engendered came only after the CEO expressed concern about “[c]ensor[ing] people for having conservative Christian views.”
The communications involving AFA Master Executive Council President Jeffrey Peterson also support Brown’s assertions of possible anti-religious bias. Despite AFA’s role as Brown’s union representative, it is apparent that AFA and Peterson in particular were heavily involved in Alaska’s investigation of Brown, perhaps to an unprecedented degree. Soon after Brown posted on Alaska’s World, Peterson reported the matter to Alaska management and, critically, wrote to various Alaska executives by text: “I wish fewer people would struggle so much with unifying their faith with inclusivity.”
A reasonable jury could conclude that Peterson’s comment specifically connected Brown’s post to her religious faith, and that it did so in a disparaging way by suggesting an infirmity in Brown’s religious beliefs. The same is true of Peterson calling Smith a “bigot” and “bigoted,” terms that in the context of this case could be understood as pejorative references to religious beliefs….
Alaska argues that it did not fire Brown for her religious beliefs but because it regarded her as having violated the company’s anti-discrimination and harassment policies…. [But] for the reasons we have given, a reasonable jury could find Alaska’s position pretextual that [the] asserted finding [of policy violation] was instead motivated by an improper discriminatory reason.
This genuine dispute is underscored … by the Notice of Discharge … set[ting] forth Alaska’s reasoning for firing Brown. That Notice referred to Brown as having engaged in “actions that demean and degrade, or are designed to demean or degrade, other employees.” A reasonable juror could find that this was an overstated or even inaccurate accounting of Brown’s post, which does not discuss Alaska employees. Similarly, the Notice of Discharge asserts that Brown’s post was “hateful” and “equat[ed] LGBTQ individuals to sexual predators.” [A] reasonable jury could … find this description overwrought or misleading….
There is no dispute that an employer can punish discrimination and harassment, even if it is religiously inspired. But … employers [may not] always avoid further inquiry into their employment decisions under Title VII whenever they hold up a facially neutral company policy as the reason for their decision, because an employee may demonstrate that the reason was pretextual or that unlawful discrimination otherwise motivated the decision….
[M]oreover, this case does not involve direct employee-to-employee harassment. Rather, it concerns a post in response to Alaska’s own invitation to share comments that reflect “[o]ur differences”—in this case, as to a piece of proposed federal legislation with which many people may disagree, including on religious grounds.
Indeed, Alaska was fully aware that some would object to the Equality Act for religious reasons. That Alaska created a forum for employee discussion on controversial issues, then fired Brown after she made religious objections of the kind Alaska anticipated, provides a further reason for regarding this case as presenting a genuine dispute of fact on the reason for Brown’s termination….
{[Likewise, a]fter initially treating Smith’s post as sufficiently legitimate to warrant a measured response from the company on Alaska’s World, Smith’s Notice of Discharge changed tunes and asserted that Smith’s single-line comment, offered in the form of a question, was “offensive” and “discriminatory,” going so far as to characterize it as speech “that targets a group of individuals based on their legally protected characteristics.” Once again, a reasonable jury could conclude that these descriptions of Smith’s post are overwrought or inaccurate, and thus pretextual, especially given that Smith made her comment in an open employee forum in which Alaska invited employees to explore “our differences.”} {Nor, in our view, is it plausible that a failure to terminate Smith would have generated hostile work environment exposure for Alaska. See Harris v. Forklift Sys., Inc. (1993) (observing that a hostile work environment is one “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”}
Smith’s situation is different than Brown’s in several respects. [Some details omitted. -EV] But although Smith’s post did not expressly invoke religion, “morality” is often associated with religious beliefs. See 29 C.F.R. § 1605.1 (EEOC guidelines defining “religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views”). “Moral” beliefs about the matters addressed in the Equality Act—which concern sexual identity and orientation—can likewise be understood to include religious beliefs…. Alaska … could have reasonably understood that Smith was invoking beliefs about “morality” that are commonly tied to religion, that is, moral beliefs that are held because of religious convictions….
But we ultimately need not decide how we would have resolved Smith’s Title VII claim against Alaska if the facts involved Smith alone…. [T]here is a genuine dispute of material fact whether Alaska discriminated against Brown because of her religious beliefs. And it is apparent that Alaska considered Smith’s situation in connection with Brown’s, working them up together. [Details omitted. -EV] …
Note that the court’s opinion focuses on a straight-up Title VII religious discrimination claim, which is that the plaintiffs were fired “because of their religious beliefs.” It doesn’t deal with a Title VII religious accommodation claim, which would be that, even if the employer was neutrally enforcing a religion-neutral rule, it had a duty to exempt religious objectors from the rule (unless granting such an exemption would cause an “undue hardship” to the employer). Here’s the court’s brief mention of the accommodation theory:
Although plaintiffs at times frame their case as one of religious accommodation, that theory is less apt for this case. That theory generally applies when an employee has a religious practice or obligation that conflicts with an employment duty, and where he asks his employer for an accommodation. What we have here is an allegation that plaintiffs were fired because of their religious beliefs, which is more naturally regarded as a straightforward discrimination claim as opposed to a failure to accommodate.
Judge Christen agreed with the analysis related to Brown, but dissented as to Smith, concluding that Smith hadn’t “demonstrated a genuine dispute of material fact about whether Alaska terminated her because of her religion.”
I expect to blog more in a separate post about another aspect of the case. (This post is long enough as it is.)
Stephanie N. Taub, David J. Hacker, Jeffrey C. Mateer, Rebecca R. Dummermuth, and Tabitha M. Harrington (First Liberty Institute) and Andrew W. Gould (Holtzman Vogel Baran Torchinsky & Josefiak PLLC) represent plaintiffs.
