Two flight attendants fired for questioning the Equality Act may proceed with a lawsuit alleging religious discrimination against both their company and labor union, the U.S. Court of Appeals for the Ninth Circuit ruled Wednesday in Brown v. Alaska Airlines. “The Ninth Circuit’s decision today reinforces that federal civil rights laws protect people of faith from discrimination by their employer or their union,” cheered First Liberty Institute senior counsel Stephanie Taub, who argued the case before the court. “You cannot be fired because your employer does not like your religious beliefs.”

District Judge Barbara Rothstein in the Western District of Washington had previously ruled against Lacey Smith and Marli Brown, granting summary judgment to the airline and labor union and dismissing the women’s claims. The Ninth Circuit reversed, concluding “that both plaintiffs have established a triable issue.” Their lawsuit will now proceed to trial.

“In this case, Smith and Brown both established, at minimum, a genuine dispute,” the court reasoned. “Smith and Brown claim they were discriminated against based on their religious beliefs, a protected ground. … Alaska argues that it did not fire Brown [or Smith] 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. That is because for the reasons we have given, a reasonable jury could find Alaska’s position pretextual.”

“In sum, the issue is not whether Alaska can punish employees who engage in discrimination and harassment (it can),” the court stated. “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.”

The Ninth Circuit opinion was written by Judge Daniel Bress, a Trump appointee, and joined by Judge Kenneth Lee, another Trump appointee. Judge Morgan Christen, an Obama appointee, wrote a separate opinion concurring in all respects but one. Christen would have disallowed Smith’s claim against Alaska Airlines.

The substance of the case hearkens back to the repressed and boiling days of early 2021, when passengers were getting booted from airlines left and right, and flight attendants were losing their jobs for refusing to take the jab. “On February 25, 2021, Alaska posted on Alaska’s World to announce the company’s support for the Equality Act,” the court observed. The bill proposed to statutorily railroad religious liberty by creating civil rights protections for sexual orientation and gender identity, and allowing these categories to trump any religious objections. Fortunately, it has never become law.

“Alaska’s World” is “an internal intranet communication network” visible to all Alaska Airlines employees. Before this controversy, the company encouraged employees to reply and comment on company communications, explaining that “[c]omments are here for us to openly and constructively share ideas, ask respectful questions, and understand one another and our company.”

Shortly after the airline announced its endorsement of the Equality Act, Christian flight attendant Lacey Smith responded, “As a company, do you think it’s possible to regulate morality?” Later that day, after researching the issue, Christian flight attendant Marli Brown posted a fuller rebuttal:

“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[.]”

Alaska Airlines management received complaints about Smith’s post and discussed it internally. Instead of taking it down, they initially drafted a response:

“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.”

Notably, the internal communications were even more censorious than this hard put-down. “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,’” the court recorded.

That night, Alaska shut down comments on the post and deleted the comments by Smith and Brown. It later changed its comment policy to forbid “partisan or personal (such as religious or political) opinions.”

These offending (but not offensive) posts did not go unnoticed by the employee union. Jeffrey Peterson, president of the Master Executive Council for the Association of Flight Attendants-CWA (AFA), became personally involved in the incident to an unusual extent. “Employees get to be bigots in their private lives and to express their bigoted and misinformed opinions while not at work — as horrifying as that may be,” he told AFA colleagues. But Smith’s “post is reprehensible and there should be repercussions.” He separately texted “I hate her” with reference to Smith and, “Mngmt needs to send [Smith’s] bigoted [censored] packing for a variety of reasons.”

Smith had previously faced discipline in 2020 after organizing a petition to keep Alaska Airlines from politicizing itself with pro-BLM statements.

With regard to Brown, Peterson made clear that he knew the religious freedom implications of his intolerant attitude. “I wish fewer people would struggle so much with unifying their faith with inclusivity.”

Peterson was not the only AFA official to disparage the views expressed by Brown and Smith. AFA representative Terry Taylor initially blurted out, “Can we PLEASE get someone to shut down comments, or put Marli and Lacey in a burlap bag and drop them in a well” — before revising the comment. Taylor also called the posts “reprehensible” and hoped for “[a]t least a suspension” for Brown.

Taylor later served as Brown’s union representative in her grievance dispute against Alaska Airlines. During a March 4 investigatory meeting, the court noted, “Taylor, privately texted AFA’s Stephanie Adams [also virtually present in the meeting], ‘[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,” the Ninth Circuit said. Instead, “On March 19, 2021, Alaska determined that Brown’s comments violated the company’s anti-discrimination and anti-harassment policies and terminated her employment.” The AFA eventually declined to defend Brown’s case further.

Alaska Airlines held an investigatory meeting with Smith on March 11. “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,” the court noted. Alaska terminated Smith on the same day as Brown, and the AFA again declined to carry the case any further.

In Smith’s Notice of Discharge, Alaska Airlines claimed that “[d]efining gender identity or sexual orientation as a moral issue … is not a philosophical question, but a discriminatory statement.”

Brown and Smith had worked as flight attendants for Alaska Airlines for eight and six years, respectively. Brown had no marks on her disciplinary record, while Smith only had one 30-day suspension related to her petition against BLM. Notably, “Both plaintiffs had good working relationships with LGBTQ colleagues, with no history of negative interactions,” the court noted, but they were nevertheless fired for “discrimination” for speech they argue was religiously motivated.

“After 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,’” the court found. “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.’”

“Indeed, Alaska was fully aware that some would object to the Equality Act for religious reasons,” the court said. “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.”

The case will now proceed to a trial, where Brown and Smith will have a chance to prove that Alaska Airlines and the Association of Flight Attendants discriminated against them because they dared to express political opinions motivated by religious beliefs in a public forum.