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by Michelle Galbraith, J.D., Employment Law Adviser, CalChamber
Employers often must navigate between the conflicting interests of their employees, which may implicate different protected classes. What does an employer do, for example, when an employee with severe allergies can’t be around a disabled coworker's emotional support animal? Matters become even more complicated when an employee’s protected activity potentially violates company policy.
Recently, the Ninth Circuit Court of Appeals addressed this issue in a case involving the termination of two flight attendants for comments they made on an internal company message board. The employer determined these comments, which were critical of the employer’s stated support for a federal bill that would extend protections to LGBTQ individuals, violated its anti-discrimination and harassment policies. The flight attendants countered that their comments were grounded in their religion, so their terminations were the result of religious discrimination.
Although the court’s decision allows the case to proceed to trial to decide the issue, this case still has some helpful best practices for employers (Brown v. Alaska Employers, Inc., No. 24-3789 (9th Cir. 2026)).
In this case, an airline maintains an intranet communication network where the company could post messages, to which employees were invited to react and comment. It was touted as a place to “openly and constructively share ideas,” and the employee guidance on posting stated, among other things, that “[o]ur differences make us better.”
The employer established guidelines for employees’ posts — cautioning that employees must be civil and respectful — and noted that it would remove any comment that violated company policies. Separate from this message board, the employer also maintained a zero-tolerance policy for harassment or discrimination of any kind.
In February 2021, the employer posted a message expressing support for the Equality Act, which was proposed federal legislation that would prohibit discrimination based on sex, sexual orientation and gender identity.
Shortly after the post was created, a flight attendant, Lacey Smith, responded, “[a]s a company, do you think it’s possible to regulate morality?” Some subsequent commenters expressed disagreement with her statement, while others complained about it to the flight attendants’ union, the Association of Flight Attendants-CWA AFL-CIO (AFA).
The employer and the AFA began internal discussions about how to respond. Some communications released during discovery revealed strong corporate sentiments against Smith’s opinions. For example, the AFA Master Executive Council President Jeffrey Peterson sent texts and emails to colleagues referring to Smith’s opinion as “bigoted and misinformed.” He also stated that her post was “bullshit” and the employer should send Smith’s “bigoted ass packing.”
A legal team member also wrote that employees “do not have the right to believe that LGBTQ rights are ‘immoral,’” to which a vice president responded, “I 100% agree.”
Following these discussions, the employer posted a response to Smith’s comment, explaining their reasoning for supporting the Equality Act and reminding employees that “harassment and discrimination will not be tolerated."
Another flight attendant, Marli Brown, saw Smith’s post, did some research on the Equality Act and wrote her own response. In it, among other things, she asked whether the employer supported “endangering the Church” and suppressing religious freedom.
Peterson saw Brown’s post, flagged it for the employer’s leadership and commented that he wished “fewer people would struggle so much with unifying their faith with inclusivity.” He later acknowledged that it was unusual for him to become involved in the employer’s disciplinary process.
As with Smith’s post, internal communications among the employer and the AFA demonstrated strong opposition to Brown’s comment. An AFA representative, Terry Taylor, referred to the posts as “reprehensible,” stating in a Google chat that Brown and Smith should be put in a burlap bag and dropped down a well and agreed with a coworker that Brown should at least receive a suspension. Taylor would later serve as Brown’s union representative in the employer’s disciplinary proceedings against her.
The employer deleted Brown and Smith’s comments, shut down further commenting and began investigating both women. During her interview with investigators, Brown clarified that she supports equity for her LGBTQ coworkers but had concerns about the Equality Act’s impact on religious people, women and children. She stated that her intent was not to discriminate but to express her religious beliefs. While Brown was speaking, her representative, Taylor, texted the grievance chairperson, mocking Brown’s statements and concluding, “I may hurl.”
At the conclusion of their investigation, the employer determined that Brown’s comments violated their policies prohibiting harassment and discrimination and terminated her employment. The employer stated that it was not obligated to provide any religious accommodation because doing so would require it to permit her to demean and degrade other employees.
A week after the investigatory meeting with Brown, the employer met with Smith. On the advice from her AFA representatives, Smith characterized her message board post as not religious in nature but rather as “philosophical.” The employer terminated Smith’s employment, writing in her termination paperwork that questioning their support for equal rights was not philosophical but discriminatory.
Brown and Smith filed a lawsuit against the employer and the AFA alleging discrimination based on their religious beliefs. The trial court granted summary judgment for the employer, and Brown and Smith appealed to the Ninth Circuit.
At the summary judgment stage, it’s not necessary for plaintiffs to demonstrate that they are likely to win at trial. Instead, they need only show that they have raised triable issues for a jury to resolve. Additionally, the court must view all facts in the light most favorable to the plaintiffs.
In Brown and Smith’s case, this meant that on appeal they only needed to demonstrate a genuine dispute over material facts as to whether the employer and AFA discriminated against them because of their religious beliefs. If they could, then the trial court must be overturned, and the case should proceed to a jury.
The court evaluated the plaintiffs’ claims separately because they were based on different message board communications: Brown’s post openly referenced her concerns about religious freedoms, while Smith’s questioned the employer’s ability to regulate morality.
Turning first to Brown, the appellate court concluded that because she was terminated shortly after posting a message referencing her religion, there was a triable issue of fact as to whether religious animus motivated the employer.
In making this holding, the Ninth Circuit noted that lower courts cannot require plaintiffs to essentially prove the religious foundations of their beliefs. All they need to demonstrate is that their religious beliefs are sincerely held, not whether those beliefs are legitimate or supported by canon.
The internal communications among AFA and the employer executives, some of which referenced Brown’s faith, also swayed the Ninth Circuit. The lower court had dismissed these statements as coarse and unprofessional but not related to religion. While the Ninth Circuit agreed that most of the comments did not reference religion specifically, it held that when read in the larger context of the case, a jury could find that the defendants made them with religious animus. For example, the court said that a reasonable jury might find the word “bigot,” in the context of this case, to be a pejorative reference to Smith’s religious beliefs.
Smith’s case was slightly different from Brown’s because her post was not overtly religious. Instead, it read, “As a company, do you think it’s possible to regulate morality?” During her investigatory meeting, she did not raise any religious objections to the employer’s post but instead characterized her opinion as “philosophical.” She only raised her religious beliefs later, after she’d already been terminated.
Again, the Ninth Circuit gave Smith the benefit of the doubt. It stated that although her post did not expressly reference religion, it did reference “morality,” which, the court held, is often associated with religious beliefs. Additionally, the employer’s internal communications acknowledged that the Equality Act could have religious implications for some employees. Therefore, the court said a jury could conclude that the employer was motivated by religious discrimination even though Smith made no expressly religious statements.
The court also noted that the employer essentially lumped both women together in its internal discussions about the posts. And since Brown’s post was expressly religious in nature, a jury could determine that the employer’s motivations toward both plaintiffs were the same.
The employer argued that it did not fire the plaintiffs because of their religion, instead it was because they violated their anti-harassment and discrimination policies. Again, the appellate court stated that a jury should decide whether these were the actual reasons for termination or whether they were simply a pretext for religious discrimination. A reasonable jury, the court said, could find that the employer’s investigation’s conclusion that the comments were offensive and discriminatory — was overstated and misleading.
For example, the court pointed out that the employer itself did not initially seem to find at least one of the comments to be egregiously discriminatory. After Smith posted her question about regulating morality, the employer did not take it down. Instead, it posted a measured response — an action that the court characterized as treating her post as “legitimate.” Only later, following its investigation, did the employer state that the post was offensive and discriminatory. The Ninth Circuit stated that a jury should weigh this disparity to determine whether the employer’s stated reasons for termination were “overwrought.”
The employer asserted that under the plaintiffs’ logic, any employee could harass or discriminate against coworkers and then escape punishment by claiming that their religion compelled them to act that way. On this issue, the court was seemingly swayed by the type of conduct the plaintiffs engaged in as this wasn’t a case of face-to-face harassment. Instead, the plaintiffs posted responses on a message board that was designed to welcome debate. Essentially, the court stated a jury could find that the employer created a forum for the discussion of controversial issues but then fired employees for expressing dissenting and potentially religiously motivated opinions.
Additionally, the plaintiffs claimed that the AFA discriminated against them based on their religion during the disciplinary and grievance processes, which led in part to their termination. In support of this claim, they presented evidence of the AFA employees’ distaste for them and their comments during the investigation, including texts and emails calling them bigots, suggestions to drop them into a well, hoping for their suspensions or terminations, and stating that their comments were reprehensible.
The AFA argued that although its employees may have disagreed with Brown and Smith on policy, it adequately represented them throughout the grievance process. Despite his critical comments, Peterson himself told colleagues that the union would represent the flight attendants fairly and without discrimination.
The Ninth Circuit said that the AFA’s argument may well “carry the day” with a jury, but that the case should proceed to trial to determine whether AFA allowed or participated in the plaintiffs’ terminations because of their religious beliefs.
The court overturned the trial court’s decision to dismiss the plaintiffs’ case and sent the matter back to the trial court.
Employers can face the complex challenge of navigating conflicting interests between protected classes, which becomes even more complicated when an employee's protected activity potentially violates company policy. Here are some best practices for employers: