Some excerpts from Wednesday's long Ninth Circuit opinion in Brown v. Alaska Airlines, Inc., written by Judge Daniel Bress and joined by Judge Kenneth Lee and, in large part, by Judge Morgan Christen:
Alaska … maintains an internal intranet communication network that it calls Alaska's World. Alaska's World is visible to all Alaska employees, with the company describing it as a "key vehicle for employee communications."
Alaska posts messages on Alaska's World, and employees are invited to reply and comment. Alaska explained to employees that the "[c]omments are here for us to openly and constructively share ideas, ask respectful questions, and understand one another and our company." According to Alaska's employee guidance on posting, "[w]e're a big team, inclusive of many people and perspectives," and "[o]ur differences make us better when we support and respect each other, allowing each of us to be who we are." The company has expressed its commitment to providing "a safe space culture where employees feel empowered to have open and critical dialogue with their peers and leaders." …
On February 25, 2021, Alaska posted on Alaska's World to announce the company's support for the Equality Act. The Equality Act is proposed federal legislation that would extend certain federal nondiscrimination requirements to cover discrimination involving sex, sexual orientation, and gender identity in various contexts…. As was typical for Alaska's World posts, Alaska allowed its employees to comment on the company's Equality Act announcement.
Plaintiffs Marli Brown and Lacey Smith are Christians who worked as flight attendants at Alaska Airlines for eight and six years, respectively…. Shortly after Alaska posted about the Equality Act on Alaska's World, Smith posted in response: "As a company, do you think it's possible to regulate morality?" Smith's comment prompted responses on Alaska's World from other commenters, some of whom expressed disagreement…. Alaska did not initially remove Smith's post but instead decided to respond to it on Alaska's World, [writing] …:
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.
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."
Later that day, plaintiff Marli Brown independently saw Alaska's post and … felt religiously compelled to post a response[, writing] …:
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[.] …
That night, Alaska deleted Brown and Smith's comments on Alaska's World, shut down further comments, and began investigating both plaintiffs. The company subsequently changed its commenting rules to [among other things] … state that comments on Alaska's World should not "express partisan or personal (such as religious or political) opinions." Prior to that change, and referencing correspondence he received from a pilot who was concerned over Smith's and Brown's posts being taken down, Brad Tilden, the retiring CEO of Alaska, expressed concern to Alaska leadership "that we not [c]ensor people for having conservative Christian views." …
