Christian Flight Attendants' Religious Discrimination Case Against Union Can Go Forward

As I noted this morning, on Wednesday the Ninth Circuit allowed a religious discrimination claim against Alaska Airlines to go forward. The plaintiffs (Marli Brown and Lacey Smith) were Christian flight attendants who were fired for objecting on a company-run intranet to the company's statement in favor of a federal ban on sexual orientation and gender identity discrimination. (The case is Brown v. Alaska Airlines, Inc., written by Judge Daniel Bress and joined by Judge Kenneth Lee and, in large part, by Judge Morgan Christen.)

But the plaintiffs also sued their union, the AFA (the Association of Flight Attendants-CWA AFL-CIO), for religious discrimination. And the panel also unanimously allowed that claim to go forward. First, a bit of the factual allegations:

While drafting the company's response [to the two plaintiffs' posts], Andy Schneider, Alaska's Senior Vice President of People, coordinated with AFA Master Executive Council President Jeffrey Peterson. The AFA Master Executive Council is the main governing body for AFA's membership at Alaska. As Master Executive Council President, Peterson was the executive officer in charge of administering the collective bargaining agreement between Alaska and AFA. Peterson had substantial communications with Alaska about plaintiffs' posts on Alaska's World as the company was contemplating its response and disciplinary actions against the plaintiffs….

Peterson, the AFA Master Executive Council President, separately sent an email to his AFA colleagues expressing dismay about Smith's post. Referencing Smith, he wrote, "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 added that "the post is reprehensible and there should be repercussions." Peterson also told others at AFA that "this will be an ongoing and evolving conversation with management over the next couple weeks."

Peterson separately texted "I hate her" (referring to Smith) to a friend who was an Alaska pilot. He also texted Toni Monroe, an Alaska employee, that Smith's post was "bullshit" and that "Mngmt needs to send [Smith's] bigoted ass packing for a variety of reasons." Still, Peterson informed his AFA colleagues that the union would "represent [Smith] through the grievance process fairly, in good faith, and without discrimination." …

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.

Independently, AFA representative Terry Taylor posted in a Google chat with other union officials: "Can we PLEASE get someone to shut down comments, or put Marli and Lacey in a burlap bag and drop them in a well" (Taylor later revised that message), and also that Brown "needs to go!" In an email to another flight attendant who had complained about the posts, Taylor called the posts "reprehensible." Taylor would later serve as Brown's union representative in Alaska's disciplinary proceedings against Brown.

Union Grievance Chairperson Stephanie Adams privately described Brown's comments as "shitty," also telling Taylor that she expected Brown to receive "[a]t least a suspension," to which Taylor responded: "I certainly hope so!" Adams in private texts also distinguished Brown from her own friends, who are "good women with good values and believe in equality." …

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." …

AFA filed a grievance on Brown's behalf. According to Brown, she wanted to raise her concerns about Alaska's treatment of her religious beliefs in the grievance process, but AFA urged her not to. AFA did not otherwise raise religious discrimination at the grievance hearing. Instead, at the grievance meeting on March 30, 2021, Brown reiterated that she never intended to hurt her coworkers, with Taylor highlighting Brown's "unblemished" employment record at Alaska. Taylor also stated that Brown's comment was "unfortunate" and "offensive," but that in Taylor's opinion, Brown was not "beyond salvation."

Brown's grievance was denied on April 13, 2021, and Alaska refused to afford Brown a "last chance agreement" to be conditionally reinstated. AFA subsequently declined to arbitrate Brown's case, concluding that it was unlikely to succeed….

And from the court's legal analysis:

Brown … established a genuine dispute of material fact over whether AFA "discriminated against" Brown, "adversely affected h[er] status as an employee," or "caused or attempted to cause" Alaska to discriminate against Brown "because of" her religious beliefs. Under our cases, a union under Title VII "has an affirmative obligation to oppose employment discrimination against its members," and if the union instead "acquiesce[s] or join[s] in the Company's discrimination practices, it too is liable to the injured employees."

In this case, as we recounted above, AFA (through Peterson) became immediately engaged in Alaska's efforts to investigate Brown and Smith, even though it was "rare" for Peterson to get involved in discipline cases. In the case of Brown (and also Smith), it appears that Peterson affirmatively reported Brown's post to Alaska leadership, which was also rare for him to do. Peterson was otherwise intimately involved in communicating with Alaska about the company's response to the Smith and Brown posts. And critically, it was Peterson who used the words "bigots" and "bigoted," and who had expressed exasperation to Alaska over plaintiffs' purported inability to "unify[ ] their faith with inclusivity." …

In addition, there is a genuine dispute whether AFA's representation of Brown reflected bias against her because of her religious beliefs. Brown maintains that in the lead-up to her March 4, 2021 meeting with Alaska investigators, her AFA representative, Terry Taylor, was dismissive of Brown's understanding of the Equality Act and her request for a religious accommodation. During that meeting, Brown maintains that "Terry said very little in my defense," and "[e]ven though [Brown] had told Terry that [Brown's] question came from [her] religious beliefs, [Terry] did not mention that."

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. As noted above, Adams had written to others that Brown was unlike her own friends, whom she described as "good women with good values and [who] believe in equality."

Taylor had also earlier written in private communications to other AFA colleagues that Brown "needs to go!," that the Smith and Brown posts on Alaska's World were "reprehensible," and that someone should "put Marli and Lacey in a burlap bag and drop them in a well." Although not all these comments had a clear religious valence considered in isolation, in the context of the rest of the record as a whole, a jury could regard them as additional evidence that AFA personnel harbored general disagreement with Brown's religious beliefs, which may have affected their representation in the disciplinary process.

Going into the March 30, 2021 grievance hearing, Brown again claims that Taylor was dismissive of her religious concerns, with Taylor allegedly telling Brown that her post on Alaska's World was "wrong and hurtful" and that Brown "did not have religious protections because what [she] did was wrong." Brown further claims that Taylor tried to dissuade her from raising religious discrimination and accommodation at the grievance hearing. At the grievance hearing itself, moreover, Brown claims that "Terry never defended my comment as arising from my religious beliefs and concerns, nor did she raise my concern that I was being discriminated against on the basis of religion." Taylor instead reportedly described Brown's comments as "unfortunate" and "offensive," while maintaining that Brown had a strong employment record and was not "beyond salvation."

For its part, AFA maintains that it adequately defended Brown and protected her interests, even if some AFA employees may have disagreed with Brown's position on the Equality Act as a policy matter. AFA also points out that after the grievance hearing, Brown expressed that AFA had done a good job defending her. AFA's account may ultimately carry the day with the jury. But between the comments that could be interpreted as expressing a negative view of Brown's faith, Taylor's claimed unwillingness to defend Brown on religious discrimination grounds, and Taylor's efforts to dissuade Brown from raising this defense, it is genuinely disputed whether AFA attempted to cause Brown's termination based on her religious beliefs or acquiesced in it. …

For substantially the same reasons as Brown, we further hold that there is a genuine dispute of material fact whether AFA attempted to cause Smith's termination based on her religious beliefs or acquiesced in it.

As was true in the case of Brown, AFA's Peterson was heavily involved in Alaska's efforts to investigate and discipline Smith, even though this level of involvement was rare for him. Peterson's "struggle with faith" text extended to Smith as well as Brown, and he repeatedly referred to Smith as a "bigot" and "bigoted." As we noted above, Peterson did tell others at AFA that the union would "represent [Smith] through the grievance process fairly, in good faith, and without discrimination." But a reasonable jury could find that Peterson's explanation was not believable when, among other things, he was internally saying that "Mngmt needs to send [Smith's] bigoted ass packing for a variety of reasons."

Similarly, during the investigatory and grievance process, Smith claims she felt pressured not to raise her religious objections to the Equality Act, although it is not as clear from the record that this claimed pressure came from AFA. However, during internal AFA deliberations over whether to arbitrate Smith's grievance, notes reflect Peterson stating that Smith "[c]an be a bigot at home but not at work."

Ultimately, although there is less evidence that AFA attempted to dissuade Smith from raising a religious defense than in the case of Brown, the fact remains that the union was handling both cases at the same time, and the "bigot" comments were specifically directed to Smith. Under these circumstances, we believe that a jury should consider the question of whether AFA violated Title VII in its handling of Smith's investigation and grievance….

Stephanie N. Taub, David J. Hacker, Jeffrey C. Mateer, Rebecca R. Dummermuth, and Tabitha M. Harrington (First Liberty Institute) and Andrew W. Gould (Holtzman Vogel Baran Torchinsky & Josefiak PLLC) represent plaintiffs.