Background
Marli Brown and Lacey Smith were Christian flight attendants at Alaska Airlines with eight and six years of service, respectively, and members of the Association of Flight Attendants-CWA AFL-CIO (AFA). In February 2021, Alaska posted on its internal employee intranet, Alaska’s World, announcing the company’s support for the Equality Act—proposed federal legislation extending nondiscrimination protections to cover sexual orientation and gender identity. Employees were invited to comment. Smith responded by asking, “As a company, do you think it’s possible to regulate morality?” Brown separately posted a longer statement warning that the Equality Act would “endanger the Church,” “encourage suppression of religious freedom,” and “eliminate conscience protections,” among other objections. Both posts drew complaints from coworkers. AFA Master Executive Council President Jeffrey Peterson privately texted that Smith’s comment was “bullshit” and that management needed to send her “bigoted ass packing,” and separately flagged Brown’s post to Alaska management with the remark that he wished “fewer people would struggle so much with unifying their faith with inclusivity.”
Alaska investigated both employees. During her investigatory meeting, Brown identified as Christian, explained that her post reflected religious concerns about the Equality Act’s impact on people of faith, and requested a religious accommodation. Her own AFA representative, who privately texted a colleague “I may hurl” while Brown spoke, did not raise religious discrimination at the grievance hearing. Smith, acting on advice from her AFA representatives and fearing discrimination if she mentioned religion, described her comment as merely “philosophical.” Both plaintiffs were terminated on March 19, 2021, for violating Alaska’s anti-harassment and anti-discrimination policies. AFA filed grievances on behalf of both women but declined to pursue arbitration in either case, citing low likelihood of success.
Brown and Smith sued Alaska and AFA in the Western District of Washington, asserting Title VII religious-discrimination claims and parallel state law claims under the Washington Law Against Discrimination and Oregon’s anti-discrimination statute. The district court granted summary judgment to both defendants on the federal claims and dismissed the state law claims against AFA as preempted by the Railway Labor Act’s duty of fair representation. Plaintiffs appealed.
The Court’s Holding
A divided Ninth Circuit panel (Judge Bress, joined in most respects by Judge Lee, with a partial concurrence and partial dissent by Judge Christen) reversed and remanded. As to Brown, the majority held that she produced sufficient evidence of a genuine dispute of material fact on her Title VII and state law claims against both Alaska and AFA. Brown’s post was facially religious in nature, Alaska and AFA both understood it to reflect religious beliefs, her supervisor recommended only minimal discipline, and yet Alaska terminated her without progressive discipline and refused to offer a last-chance agreement—circumstances a reasonable jury could find consistent with termination because of religion rather than a neutral policy violation. The majority also held that AFA’s private expressions of hostility and its failure to raise religious discrimination in the grievance process raised a genuine factual dispute about whether the union attempted to cause or acquiesced in Brown’s termination on a religious basis.
As to Smith, the majority similarly concluded that a reasonable jury could find Alaska’s stated neutral justifications pretextual, given that Alaska considered Smith’s situation in connection with Brown’s, worked the two investigations together, and that AFA officials expressed personal animus toward Smith and privately advocated for her termination. The majority further held that the Railway Labor Act’s implied duty of fair representation does not preempt state law anti-discrimination claims against a union, agreeing with the Second and Eighth Circuits on that question. Judge Christen concurred in all holdings except the reversal as to Smith’s claims against Alaska, concluding that Smith—who did not raise religion during her investigatory interview, had a prior disciplinary record, and whose post contained no facially religious content—did not demonstrate a triable issue on whether Alaska fired her because of her religion.
Key Takeaways
- An employee who posts a facially religious statement in response to an employer’s policy announcement, and whose religious motivation is known to both the employer and the union, has raised a triable Title VII claim if she is terminated—even if the employer frames the termination as a neutral policy violation.
- Privately documented hostility by union officials toward a member’s religious expression can create a genuine dispute of material fact on whether the union “attempted to cause or acquiesced in” discriminatory termination under Title VII § 2000e-2(c).
- The Railway Labor Act’s duty of fair representation does not impliedly preempt state law religious-discrimination claims brought by union members against their union—a circuit split question the Ninth Circuit now resolves in alignment with the Second and Eighth Circuits.
- Under McDonnell Douglas at summary judgment, very little evidence of discriminatory motive is required to survive; courts must view all facts—including the employer’s internal communications and the union’s private statements—in the light most favorable to the plaintiff.
Why It Matters
This decision establishes that employees who express religiously grounded disagreement with employer diversity policies in a company forum may have viable Title VII claims if they are fired, even when the employer characterizes the termination as enforcement of neutral conduct standards. The ruling puts airlines—and other employers with large, politically active workforces and internal communications platforms—on notice that documented awareness of an employee’s religious motivation for a post can become evidence of discriminatory intent at trial.
The preemption holding has broader labor law significance: by joining the Second and Eighth Circuits in refusing to read the Railway Labor Act’s duty of fair representation as displacing state anti-discrimination law, the Ninth Circuit preserves an independent avenue for unionized employees to pursue state civil rights claims against their own unions, regardless of any overlap with federal labor law grievance obligations. For employment and labor counsel representing flight attendants and other RLA-covered employees, the decision underscores the litigation risk that arises when union representatives allow personal views about a member’s speech to influence their representational conduct.