Alaska Airlines will have to explain to a jury why it terminated two flight attendants for making alleged discriminatory statements on an internal employee forum that was created by the Seattle-based carrier to discuss a subject that it fully expected to be controversial.
The two former flight attendants were fired in 2021 for the posts they shared on the airline’s internal social network, ‘Alaska World,’ but when they sued for religious discrimination, a lower court sided with Alaska Airlines, and the case was dismissed before it reached trial.
Backed by the conservative Christian legal organization, First Liberty, the two flight attendants, Lacey Smith and Marli Brown, appealed to the U.S. Court of Appeals for the Ninth Circuit, which, after years of legal wrangling, has overturned the lower court’s decision in a lengthy opinion.
As a result, the case is now expected to go to jury trial, unless Alaska Airlines is willing and able to reach an out-of-court settlement.
The case dates back to February 25, 2021, when Alaska Airlines created a post on ‘Alaska World’ in which it announced its support for the Equality Act, which would make it illegal for companies to discriminate on the grounds of sex, sexual orientation, and gender identity.
Alaska Airlines opened up the post to comments from employees, although the airline’s managing director for culture, Tiffany Dehaan, admitted in court testimony that the company was aware that the legislation raised religious concerns.
Smith, Christian flight attendant, responded to the post: “As a company, do you think it’s possible to regulate morality?”
Marli Brown then added her own, more lengthy, reply to the Alaska Airlines’ post, in which she said:
- “This act will Force every American to agree with controversial government-imposed ideology on or be treated as an outlaw.”
- “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.”
In response, a representative of the Association of Flight Attendants (AFA-CWA), which represents crew members at Alaska Airlines, wrote in a union group chat: “Can we PLEASE get someone to shut down comments, or put Marli and Lacey in a burlap bag and drop them in a well.”
Union officials commented that they believed Brown and Smith should be terminated, although they agreed to represent them in any grievance procedure if the airline went ahead and started disciplinary proceedings against them.
When Alaska did, in fact, decide to discipline Brown and Smith, the union official who suggested they should be ‘dropped in a well’ ended up being the person who represented Brown on behalf of AFA.
Prior to Brown and Smith’s comments, the airline had a ‘three strikes and you’re out policy’ on inappropriate comments. The rules were changed overnight.
By March 2021, both Brown and Smith had been terminated for breaching the airline’s anti-harassment rules. They later sued Alaska Airlines for religious discrimination a district court ruled that the Railway Labor Act (which also governs many airline employees) preempted state anti-discrimination claims.
In their ruling overturning the district court’s decision, the appeals court wrote: “We hold that the plaintiffs have demonstrated a genuine dispute of material fact whether Alaska terminated them because of their religious beliefs and whether AFA attempted to cause or acquiesced in their firing on this unlawful basis.”
The opinion added: “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.”
In the case of Smith, the judges concluded that “a reasonable jury could find the company’s stated reasons pretextual.”
Reacting to the judgment, Senior Counsel at First Liberty Institute, Stephanie Taub commented: “The Ninth Circuit’s decision today reinforces that federal civil rights laws protect people of faith from discrimination by their employer or their union. You cannot be fired because your employer does not like your religious beliefs.”
Until 2012, flight attendants at Alaska Airlines were expected to hand out “inspirational” cards that quoted from Psalms to First Class passengers during the meal service.
