Discrimination
Ninth Circuit Revives Flight Attendants’ Religious Discrimination Claims
Updated
In Brown v. Alaska Airlines, Inc., the Ninth Circuit reversed a grant of summary judgment for Alaska Airlines and the flight attendants’ union, holding that two former flight attendants raised genuine disputes of material fact over whether they were fired because of their religious beliefs in violation of Title VII and state law. The court also held that the Railway Labor Act’s duty of fair representation did not preempt the employees’ state-law discrimination claims against the union. The case was remanded for further proceedings.
Background
Marli Brown and Lacey Smith were flight attendants at Alaska Airlines and members of the Association of Flight Attendants—CWA AFL—CIO (AFA). In February 2021, Alaska posted on its internal intranet to announce support for the Equality Act, proposed federal legislation extending nondiscrimination protections to cover sexual orientation and gender identity, and invited employee comments.
Smith commented, “As a company, do you think it’s possible to regulate morality?” Hours later, Brown posted a longer comment asserting that the act would endanger the church, suppress religious freedom, and eliminate conscience protections. Alaska deleted both posts, opened investigations, and terminated both employees the same day for violating its anti-discrimination and anti-harassment policies.
Brown, who had an unblemished record, identified her post as religiously grounded during the investigation. Smith, who was on probation from an earlier suspension over a Black Lives Matter petition, described her post as a “philosophical” question and did not invoke religion until after she was fired. The district court granted summary judgment for Alaska and AFA and held that the Railway Labor Act preempted the state-law claims against the union.
What the Court Held on the Discrimination Claims
Reviewing the grant of summary judgment de novo, the Ninth Circuit emphasized that “very little” evidence is needed to raise a genuine issue about an employer’s motive. The question, the court explained, was not whether Alaska could punish discrimination or harassment—it can—but whether each plaintiff was in fact fired for that reason or whether the company used its policies as cover for firing them because of their religious beliefs.
As to Brown, the court found her post was facially religious and understood that way by Alaska and the union. Internal emails, a union officer’s remarks about “unifying their faith with inclusivity,” the outright termination of an employee with a clean record, and arguably overstated language in the discharge notice together created a triable dispute over pretext.
As to Smith, the court declined to decide the claim on her facts alone. Because Alaska worked the two cases up together, fired both employees the same day, and knew the Equality Act would draw religious objections, the court held that the substantial overlap with Brown’s case created a genuine dispute over whether Smith’s stated reasons were pretextual. The court also held that both plaintiffs raised triable disputes over whether AFA attempted to cause or acquiesced in their firings on a religious basis.
An employer’s reliance on a facially neutral anti-discrimination policy does not foreclose a Title VII claim where a reasonable jury could find the stated reason pretextual or that religious belief was a motivating factor in the termination.
What the Court Held on Railway Labor Act Preemption
The court next addressed whether the Railway Labor Act’s duty of fair representation impliedly preempted the plaintiffs’ Oregon and Washington anti-discrimination claims against the union. Agreeing with the Second and Eighth Circuits, the court held that it does not.
The court reasoned that Title VII covers labor unions and expressly preserves state anti-discrimination law absent an actual conflict, so it would be incongruous to read the judicially implied duty of fair representation to preempt those same state laws. Compliance with anti-discrimination statutes, the court explained, reflects duties beyond the normal incidents of the union–employee relationship and works in tandem with federal labor law.
What This Means for You
This decision addresses Title VII and state-law religious discrimination claims arising from employee comments on a company forum, holding that a neutral-policy rationale can still present a jury question on pretext. It also holds that the Railway Labor Act’s duty of fair representation does not preempt state anti-discrimination claims against a union.
I write these summaries as general information about developments in California employment law. They are not legal advice and don’t create a mediator–client relationship. For guidance on a specific matter, consult a qualified attorney.