Should you lose your job because of your opinion? What if that opinion is religiously based? That is the exact question asked in the case Brown v. Alaska Airlines.
Alaska Airlines
Let’s start by looking at Alaska Airlines and the conditions that led to the lawsuit.
Alaska is a large airline that employs approximately 26,000 people. It 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.”
Brown v. Alaska Airlines – Ninth Circuit Court
Like many corporations, Alaska Airlines has an internal communications network. Theirs is called Alaska’s World, and it’s there purposely 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.”
Brown v. Alaska Airlines – Ninth Circuit Court
Here I read a lot of words common to corporate America. “[O]penly and constructively share ideas,” ‘[A]sk respectful questions,” and “understand one another and our company” are things I heard when I worked for major corporations. Like any organization, Alaska Airlines has rules for the use of their communications.
Alaska maintains various rules for the Alaska’s World comments section. Among other things, commenters must be “civil and respectful,” “disagree respectfully,” and use appropriate language.
Brown v. Alaska Airlines – Ninth Circuit Court
Again, rules I think most of us can agree with. When I ask for questions I ask that people be “civil and respectful.”
Alaska’s typical practice is to remove any comment that violates its policies. If Alaska deletes three of an employee’s comments, the employee is blocked from future commenting under a “three-strikes” policy (as discussed below, this rule has since changed). Separately from its commenting policy, Alaska maintains a zero-tolerance policy for “harassment or discrimination of any kind.” The company’s employee handbook provides that harassment includes offensive jokes, threats, intimidation, ridicule or mockery, insults, offensive pictures, and interference with work performance. The handbook also forbids “[t]he use of discriminatory or hurtful language or slurs . . . regardless of the intent or the context.”
Brown v. Alaska Airlines – Ninth Circuit Court
What are rules without consequences? Alaska Airline’s policy seems fair, three strikes and you cannot post. I’m generally concerned when I see a “zero-tolerance policy” though, since they rarely seem to be fairly enforced. The question I have is will Alaska Airlines live up to their rules?
The Posts
Now that we know the ground rules, let’s look at the posts that led to this lawsuit.
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.
Brown v. Alaska Airlines – Ninth Circuit Court
As a private company, Alaska Airlines is free to support or oppose any legislation they want. Telling their employees of their support on their internal message board is the right thing to do. And records show the company understood their position may not sit well with their religious employees.
Internal company records show that Alaska “underst[ood] the issue touches on religious freedom concerns for some, and respect[ed] there are differing interpretations of the legislation on that point.” As Tiffany Dehaan, Alaska’s Managing Director for Culture, Learning & Inclusion, testified, “we knew that there was religious concerns that were continuing to come up.” As was typical for Alaska’s World posts, Alaska allowed its employees to comment on the company’s Equality Act announcement.
Brown v. Alaska Airlines – Ninth Circuit Court
Alaska Airlines knew there were freedom of religion concerns with the Equality Act, and they did ask for comments on their post, so they should have expected some people would speak out against it.
Plaintiffs Marli Brown and Lacey Smith are Christians who worked as flight attendants at Alaska Airlines for eight and six years, respectively. Both were members of AFA, a flight attendants’ union representing roughly 50,000 flight attendants at Alaska Airlines and other carriers nationwide.
Brown v. Alaska Airlines – Ninth Circuit Court
Both Marli Brown and Lacey Smith, who were members of the Association of Flight Attendants union, commented on the airline’s Equity Act announcement. Let’s look at Ms. Smith’s comment first.
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. Other employees voiced complaints about Smith’s comment to AFA.
Brown v. Alaska Airlines – Ninth Circuit Court
Alaska Airlines did say they wanted respectful questions and to understand their employees. Does the company think it’s possible to regulate morality? This was a respectful question, and represents the thoughts of at least one of their employees. I find it interesting that people disagreed with the question while some complained the question was even asked. After some deliberations, Alaska Airlines had a response to Smith’s question.
Following internal company discussions and consultations with Peterson, Schneider posted the company’s response to Smith’s comment on Alaska’s World. The response read:
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.
Brown v. Alaska Airlines – Ninth Circuit Court
All legislation is about regulating morality. The purpose of legislation is to take what someone thinks is a moral position and put it into law. Alaska Airlines seems concerned about their LGBTQ+ employees not being discriminated against, but not so much those who disagree with those lifestyles.
Not only does Alaska Airlines think it is right to support the Equity Act, they expect their employees to do so as well. I guess when they say they expect differences to be respected they don’t really mean it, since they just disrespected a very simple question, respectfully asked. And that wasn’t all.
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.”
Brown v. Alaska Airlines – Ninth Circuit Court
Employees do not have the right to disagree with the company? So much for “respectful disagreement.”
Meanwhile, Marli Brown commented on the post as well.
Later that day, plaintiff Marli Brown independently saw Alaska’s post and decided to read up on the Equality Act. After her research, Brown felt religiously compelled to post a response. Brown posted the following comment on Alaska’s World:
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[.]
Brown later explained that her post contained information that she copied and pasted from elsewhere.
Brown v. Alaska Airlines – Ninth Circuit Court
After some research, Marli Brown brought up some important questions. Again, they were asked both intelligently and respectfully. Although she did later admit that these points were all hers, she pasted them from somewhere else.
That same day, Peterson flagged Brown’s comment to Alaska management in a text chain that included Alaska’s Carmen Williams and Michaela Littman, the Managing Director of Flight Operations. Peterson texted these Alaska executives to “[c]heck out Marli Brown’s post on [Alaska’s World] re: Equality Act. Definitely lighting up social media tonight, as if Lacey [Smith] wasn’t enough.” Peterson then lamented, “I wish fewer people would struggle so much with unifying their faith with inclusivity.” Peterson later confirmed that it was unusual for him to get involved with Alaska’s internal response to disciplinary incidents.
Brown v. Alaska Airlines – Ninth Circuit Court
Again, it appears Alaska Airline’s management is only interested in perspectives if they match their own. Which led to their next steps.
That night, Alaska deleted Brown and Smith’s comments on Alaska’s World, shut down further comments, and began investigating both plaintiffs.
Brown v. Alaska Airlines – Ninth Circuit Court
No discussion, no questions about the concerns these two women have, just shut down all conversation on the topic. Real respectful and understanding Alaska Airlines. However, that wasn’t enough.
The company subsequently changed its commenting rules to remove the three-strikes policy. It also revised its policy to state that comments on Alaska’s World should not “express partisan or personal (such as religious or political) opinions.”
Brown v. Alaska Airlines – Ninth Circuit Court
I guess Alaska Airlines really doesn’t want their employees to share their ideas or to get to know one another. At least one person at Alaska Airlines was concerned about the companies policy change.
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 v. Alaska Airlines – Ninth Circuit Court
So Alaska Airlines knows there are differing opinions, and some of their employees are concerned about censorship.
The Investigation
Now that Alaska Airlines has initiated an investigation into these comments, let’s take a look at how that was conducted.
During the investigatory meeting in which Brown relayed her religious concerns, her AFA representative, Terry Taylor, privately texted AFA’s Stephanie Adams, “[a]pparently [Brown] can’t stop herself . . . I may hurl,” with the text exchange culminating in Adams writing to Taylor: “Nice poker face . . . NOT.” Brown’s supervisor, meanwhile, believed that Brown’s concerns were sincere and recommended that she be given a “record of discussion” but no discipline.
Brown v. Alaska Airlines – Ninth Circuit Court
With union representation like this, who needs adversaries? This explains why the union is a party to the lawsuit.
Meanwhile Ms. Brown’s supervisor thought simply noting the discussion was sufficient, no need for discipline. That didn’t happen.
On March 19, 2021, Alaska determined that Brown’s comments violated the company’s anti-discrimination and anti-harassment policies and terminated her employment.
Brown v. Alaska Airlines – Ninth Circuit Court
So Alaska Airlines is going to discriminate against Ms. Brown for asking a question about their support for a piece of federal legislation. Sounds like they are discriminating against her and harassing her for her opinion, claiming it violates their “anti-discrimination and anti-harassment policy.
Brown’s Notice of Discharge stated that Brown’s comment was “offensive, discriminatory, and did not align with Alaska Airline’s values.” In particular, “[y]our comment stating that providing equal rights to LGBTQ individuals threatens others and equating LGBTQ individuals to sexual predators is hateful and discriminatory” and “targets a group of individuals based on their legally protected characteristics.”
Brown v. Alaska Airlines – Ninth Circuit Court
You know, a man going into the women’s rest room used to be a crime. Now Alaska Airlines claims even pointing out the dangers of doing so is “offensive.” Well, if you believe the dumb idea that men can become women if they want to, you might find the truth offensive.
Alaska also explained that Brown’s “misconduct cannot be excused by requesting a religious accommodation after the fact,” because Alaska is “not required to provide an accommodation that permits actions that demean and degrade . . . other employees.” Before Brown was terminated, she had no record of prior discipline.
Brown v. Alaska Airlines – Ninth Circuit Court
What did Alaska Airlines think Brown meant when she asked if they supported endangering the church? Seems like a religious statement to me. And how is she supposed to ask for a religious accommodation before an infringement on her religious beliefs actually happens? After all, she was just following company policy, respectfully asking questions about their position. It was Alaska Airlines that determined that question was worthy of terminating her employment.
During Smith’s investigatory interview, Smith did not tell Alaska that her comment on Alaska’s World was based on her Christian faith. Instead, acting according to advice from her AFA representatives, Smith told investigators that her post was merely posing a “philosophical” question. … Smith claims she did not raise her religious beliefs during this meeting because she feared that Alaska would discriminate against her if she “used the word ‘religion.’”Smith later described the meeting as “hostile” and recalled that during “repeated, aggressive questioning,” she broke into tears.
Brown v. Alaska Airlines – Ninth Circuit Court
Interesting that her union advised Ms. Smith not to mention her faith and instead state that her comments were philosophical questions. How would you react in a meeting if you feared discrimination for your viewpoints? Hostility and aggressive questioning seemed to support her fear.
Alaska’s internal “Fact Finding Report” confirms that Alaska understood Brown to be offering, at least in part, a religious perspective on the Equality Act. As Alaska’s Carmen Williams similarly testified, “if you read her comment . . . you can tell that she’s talking about religious concerns that she may have.”
Brown v. Alaska Airlines – Ninth Circuit Court
In Alaska Airlines internal investigation of Ms. Brown’s post they noted that it was, at least partially, religiously motivated. They also claimed their actions were not discrimination against her religious beliefs.
Alaska terminated Smith’s employment on March 19, 2021, the same day it terminated Brown. In Smith’s Notice of Discharge, Alaska based its termination on Smith’s violation of the company’s anti-harassment and anti-discrimination policies.
Brown v. Alaska Airlines – Ninth Circuit Court
Alaska Airlines terminated Ms. Smith for, allegedly, violation of the company’s anti-harassment and anti-discrimination policy. As we’ll see, the company was itself discriminating against Ms. Smith.
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.”
Brown v. Alaska Airlines – Ninth Circuit Court
Apparently, Alaska Airlines does support discrimination, if it’s against those who believe the millennia of human history regarding morals. Even questioning their philosophy is considered discrimination to the airline. Definitely a case of the pot calling the kettle black.
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.”
Brown v. Alaska Airlines – Ninth Circuit Court
Again, Alaska Airlines claims that any speech is “offensive, discriminatory” if the speech is not politically correct. Alaska Airlines is a private company, so they can believe whatever they want. But to call discrimination anti-discrimination is not only linguistically flawed but irrational.
The Opinion
How did the Ninth Circuit find in this case?
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.
Brown v. Alaska Airlines – Ninth Circuit Court
I guess finding a religious point of view “discriminatory and offensive” does point to Alaska Airlines own discrimination.
The district court additionally determined that Brown’s post was not “grounded in religious belief at all” because “Brown testified that her Christian faith taught her to speak up for the vulnerable,” which the court described as not “anything other than a universal human precept.” The court further discounted that Alaska discriminated on the basis of religion because Brown “was unable to point to any specific passage in the Bible, teaching of her religious leaders, or other religion-specific source,” and because any view concerning the binary nature of human sexuality was “neither unique to, nor a particular tenet of, Christianity specifically or religion more broadly.”
This reasoning was mistaken. The role of the courts in assessing a plaintiff’s religious beliefs is limited to determining “whether the beliefs professed by the [plaintiff] are sincerely held and whether they are, in [her] own scheme of things, religious.”
Brown v. Alaska Airlines – Ninth Circuit Court
This District Court got it wrong. Just because Ms. Brown is not a biblical scholar doesn’t mean her position isn’t based on a sincere religious belief. The fact that no one representing Ms. Brown or Ms. Smith could make a coherent biblical arguments says more about the training of the attorneys than the content of Scripture.
The district court considered the comments of Peterson and others at AFA “coarse and unprofessional” but determined that none “raise[d] an inference of discrimination on the basis of religion.”
Brown v. Alaska Airlines – Ninth Circuit Court
The comments of the union representatives was more than just “course and unprofessional,” they showed an anti-religious bias. Which means that neither Ms. Brown nor Ms. Smith received adequate representation during their ordeals.
In addition, the fact that Brown was terminated outright, rather than given any lesser punishment under Alaska’s progressive discipline policy, contributes to the inference that she was terminated because of her religious beliefs. … That conclusion is made more plausible in this case by the fact that Brown was an employee with an otherwise unblemished disciplinary record who got along well with her LGBTQ coworkers, received positive customer feedback, and showed contrition at her internal investigatory meeting.
Brown v. Alaska Airlines – Ninth Circuit Court
It would have been one thing if Alaska Airlines had followed their progressive discipline policy. By jumping right to termination, Alaska Airlines overreaction adds weight to the claim of religious discrimination.
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. This argument captures the genuine dispute in this case; it does not settle it.
Brown v. Alaska Airlines – Ninth Circuit Court
Again, Alaska Airlines was willing to discriminate and harass Ms. Brown for merely questioning the company’s stance on legislation.
In sum, the issue is not whether Alaska can punish employees who engage in discrimination and harassment (it can). The issue here is instead a factual one of whether Brown was in fact fired for engaging in discrimination or harassment, or whether Alaska instead used the cover of its employee policies to fire Brown because of her religious beliefs.
Brown v. Alaska Airlines – Ninth Circuit Court
Yes, a company like Alaska Airlines can punish employees for discrimination and harassment. But can the company discriminate and harass its employees under the cover of their anti-discrimination and anti-harassment policies? And what about the union?
The record raises factual questions about whether AFA’s representation of Brown was colored by potential disagreement with her religious views. As Brown was advocating a religious defense during her investigatory meeting, it was AFA’s Taylor who privately texted “I may hurl” to her AFA colleague Stephanie Adams, who was also participating in the meeting.
Brown v. Alaska Airlines – Ninth Circuit Court
Did the union faithfully represent Ms. Brown? Based on the statements made by the union reps, I would say no.
As was true for Brown, Alaska argues that it fired Smith for the neutral reason that she violated company anti-harassment and anti-discrimination policies. But perhaps even more so than in the case of Brown, a reasonable jury could find the company’s stated reasons pretextual.
Brown v. Alaska Airlines – Ninth Circuit Court
It seems the court saw right through Alaska Airlines pretext.
Conclusion
After all of this, what was the decision of the Ninth Circuit?
Having surveyed the case law, we agree with the Second and Eighth Circuits and hold that the RLA’s duty of fair representation does not preempt plaintiffs’ Oregon and Washington anti-discrimination claims against their union.
Brown v. Alaska Airlines – Ninth Circuit Court
Like the other two circuits, the Ninth Circuit agrees that the Railroad Labor Act does not preempt state level anti-discrimination claims.
For the foregoing reasons, we reverse the district court’s grant of summary judgment to Alaska and AFA and its dismissal of plaintiffs’ state law discrimination claims against AFA. We remand for proceedings consistent with this opinion.
Brown v. Alaska Airlines – Ninth Circuit Court
Therefore the district court’s decision is reversed, and the case remanded back for further proceedings.
While the case isn’t over, let’s consider the facts of the case. Alaska Airlines is a private corporation. They have every right to hold whatever position they want. However, many states have passed laws that do not allow companies to fire employees simply for their religiously held beliefs, which is what Alaska Airlines appears to have done. Using a so-called anti-discrimination law to discriminate against those who disagree, or even question the company’s position, is just plain wrong and evil. If Alaska Airlines had merely taken down the posts and closed comments, we probably hadn’t even heard about it.
If you owned a company, or shares in a company, would you be OK with them reacting like Alaska Airlines did? Would you take a job at Alaska Airline? Would you fly on Alaska Airline? Would you buy stock in Alaska Airlines? Maybe to speak up at a shareholder meeting? Regardless of what the courts finally decide, you get to decide how you respond to what appears to be an egregious reaction to some simple questions about Alaska Airlines. Something their policies say they are supposed to accept, even encourage. As I said, this seems like discriminating in the name of anti-discrimination.
