Employment & Labor Insider

The U.S. Court of Appeals for the Ninth Circuit ruled this week that a major airline and a union will have to go to trial over religious discrimination claims brought by two former flight attendants.

The claims have to do with comments that the flight attendants, both Christian, made on the company's intranet about LGBTQ legislation. I’ll refer to the intranet platform as the “forum.”

The airline’s forum rules were that employees were free to express their views on just about anything, as long as they were generally courteous and respectful of each other. Inappropriate communications were to be handled with three warnings, followed by a ban from the forum. If the communications were really, really bad, disciplinary action could be imposed under the airline's harassment policy.

Do you really want to know the innermost thoughts of all these people?

In 2021, the powers that be at the airline wanted Congress to pass the Equality Act.

The Equality Act is legislation that has been introduced a number of times over the years. It would amend Title VII and other federal laws to provide broad protections based on sexual orientation and gender identity. Here is the version of the Act that was considered by Congress in 2021-22. The Equality Act has never become law, and arguably the employment-related provisions are less important since the Supreme Court's 2020 decision in Bostock v. Clayton County, in which the Court said that discrimination based on sexual orientation or gender identity was a form of "sex" discrimination prohibited by Title VII.

A brief interlude

This post is not about whether the Equality Act should become law.

. . . and the story continues . . . 

The airline posted that it endorsed the Equality Act. On the employee forum. You know, the place where employees were encouraged to express their views on just about anything.

Our two flight attendants replied, expressing their view that the Equality Act was not a good idea. Their comments seemed to be civil and constructive in nature.

Also, according to the court, in real life both flight attendants got along fine with their LGBTQ colleagues.

But the employer and the union did not appreciate the flight attendants’ comments. The forum policy was promptly amended to remove the “three strikes” rule for offensive posts, and the flight attendants were discharged. Then the union representatives arguably “mailed it in” when representing the attendants in their discharge grievances, and also bad-mouthed them behind their backs. (The bad-mouthing was documented.)

The flight attendants sued the airline and the union for religious discrimination, and also sued the union for breach of its duty of fair representation. A lower court granted summary judgment to both defendants on a number of grounds, including that there wasn’t enough evidence that the attendants were discriminated against because of their religious beliefs.

But this week the Ninth Circuit panel reversed, and said that the flight attendants’ claims should go to a jury.

Like I said, I am not going to discuss the merits or demerits of the Equality Act. Nor will I pontificate (get it?) about the conflict between LGBTQ rights and sincerely held “traditional” religious beliefs.

What this post is really about (five tips)

Here is what my post is about: Employers and unions, there is a lot to be said for minding your own business. Legally speaking, sometimes the less you know, the better.

That wise owl is no fool.

Here are five tips about employer proselytizing (get it?) to employees:

No. 1. If you are going to give your employees an “open forum,” then expect some employees to express views that you disagree with. All the more so if you express your own views first. If you don’t like that, then don’t provide an “open forum.” Problem solved.

No. 2. If you want to express views to your employees about legislative or political developments that directly affect your business or your employees’ jobs, that is probably OK. Maybe you’re a tech employer, and you want to encourage your employees – whose jobs depend on the existence of a data center – to oppose efforts to stop your data center from being built. Or maybe you’re a non-profit who may have to lay people off because of cuts in government funding, and you want to encourage your employees to oppose those cuts. Fine. Your existence, and your employees’ jobs, may be at stake. But even in this case, once you've made your views known, STOP. Don’t follow up to see who is on your side and who isn’t, and don’t pressure or retaliate against the ones who aren’t (or who agree with you but don’t get involved because they don’t have the time or motivation).

One important exception: If your operation is political or religious in nature, you would be justified in both sharing your organization’s views relevant to your "mission" and making sure that your employees support, or (if in certain ancillary roles, such as your custodian) at least don't undermine them.

No. 3. If you want to express views to your employees about legislative or political developments that do not directly affect your business, think thrice. In today’s climate, you can be sure that about 50 percent of your work force disagrees with your beliefs, no matter what those beliefs are.

Ignorance can be bliss.

No. 4. If you absolutely must express your non-business-related political views to your employees and can’t accept disagreement, then do it in a way that doesn’t encourage "dialogue." For example, a letter or memo stating the company position might be better than an all-employee email or an oral statement made in a meeting -- or a post on a free-for-all employee forum.

If you do invite employees to respond, don't expect the response to be, “Amen! [Get it?] Wish I’d said that! You rule! I’m so proud to be working for you!”

No. 5. Understand that the further you get from issues that directly affect your business, the greater your risk of incurring opposition-based legal claims if you take action against employees who disagree. These can include religious discrimination (as in the airline case), retaliation, and – if you are a public sector employer – the First Amendment. And, in the case of unions, breach of the duty of fair representation.