Overview
Over the past few years, diversity, equity, and inclusion practices have become hot-button political issues and the subject of heated debate. Since President Trump’s inauguration in January 2025, the federal government, and many state governments, have often decried “illegal DEI” and sought to refocus civil rights enforcement on protecting groups they contend were previously overlooked: often white, male, and Christian workers.
Until recently, the risks to employers from this shifting emphasis have been primarily (though not exclusively) reputational. Two recent decisions, however, suggest that courts and agencies may be increasingly receptive to claims by employees that sound in this register, particularly when the claims arise out of employees’ vocal opposition to employers’ DEI practices (often themselves intended to prevent unlawful discrimination) or support of DEI-coded causes.
On June 24, 2026, the Ninth Circuit issued its decision in Brown v. Alaska Airlines, Inc. (No. 24-3789), reviving for trial the Title VII and state-law religious discrimination claims of two flight attendants fired over intranet comments objecting—one in expressly religious terms—to the company’s public support for the federal Equality Act.
Exactly one month later, on July 24, an administrative law judge of the National Labor Relations Board (“NLRB”) issued a decision in Apex Fintech Services, LLC (No. 12-CA-325317), holding that an employer violated federal labor law when it terminated an employee over public LinkedIn posts attacking the company’s DEI programs as discriminatory against men.
Employers previously rested (fairly) easily taking action against employees who loudly and publicly criticized them for supporting socially progressive legislation or implementing (most) DEI-related programs. And in fact, many employers reasonably believed that doing so was a necessary, or at least useful, prophylactic against hostile work environment claims.
These decisions suggest that may no longer be the case.
Brown v. Alaska Airlines, No. 24-3789 (9th Cir. June 24, 2026)
In February 2021, an Alaska Airlines representative posted on the company’s internal forums a statement expressing the company’s support for the federal Equality Act then pending in Congress that would have expanded federal civil rights protections for LGBTQ+ individuals. In response, Plaintiffs Marli Brown and Lacey Smith posted criticisms of the law and the airline’s support of it, broadly suggesting that the legislation was an improper attempt to “regulate morality,” that it would “endanger[] the Church, encourag[e] suppression of religious freedom,” “obliterat[e] women [sic] rights and parental rights” and otherwise generally threaten freedom of conscience, civil rights, and women’s safety. Their posts sparked a predictable firestorm on the internal forums with several employees complaining that the posts were highly offensive. Both employees were terminated and then filed suit alleging (among other things) that they were the victims of religious discrimination.
The District Court granted summary judgment for Alaska Airlines, holding, in relevant part, that there was insufficient evidence that Alaska Airlines fired plaintiffs because of their religious beliefs, rather than because the company viewed their posts as violating the company’s anti-harassment and discrimination policy and potentially creating a hostile work environment.
The Ninth Circuit reversed, holding that there was at least a genuine dispute of material fact over the company’s motivations, reasoning, in part, that it was not clear that the posts had in fact violated any company policies or actually created anything close to an actionably hostile work environment. While the court acknowledged that “[t]here is no dispute that an employer can punish discrimination and harassment, even if it is religiously inspired,” the court thought it far from clear that the plaintiffs’ conduct in fact crossed that line. As a result, the court concluded, a reasonable jury could find that the company’s explanation was a pretextual cover for religious discrimination.
Apex Fintech Services, LLC and John D. Richardson, No. 12-CA-325317 (N.L.R.B. Div. of Judges July 24, 2026)
In November 2021, shortly after being hired, John Richardson emailed the Human Resources department at Apex Fintech to complain that he was not allowed to participate in a company-sponsored program called Poker Powher, which was limited to female-identifying employees. He was later told that he could only participate if he was accompanied by someone who identified as female.
About two years later, Richardson emailed his boss and other company executives to report “sexism in company slack channels,” including messages promoting an external women-only mentoring program (the Women in Tech Alliance) and jokes that he viewed as anti-male.
The company retained outside counsel to investigate the complaints and asked that Richardson “maintain confidentiality and avoid naming specific employees or discussing details” while the investigation was pending. A few days later, Richardson posted an 11-page article on LinkedIn excoriating Apex. He accused the company of “allow[ing] outright hate to proliferate as a demonstration of what they think DEI is,” and accused an HR representative of going “on a tirade about ‘white males’” during a company DEI panel. He followed up with another 3-page article titled “A culture of bigotry at Apex Fintech Solutions, Pt. 2” expressing similar sentiments and encouraging Apex employees to file charges with the EEOC. Two days later, Apex terminated his employment.
Richardson filed an unfair labor practice charge with the NLRB alleging that he was terminated in violation of the National Labor Relations Act (“NLRA”), and the NLRB’s General Counsel took the case to trial before an NLRB Administrative Law Judge (“ALJ”). The General Counsel argued that Richardson’s posts constituted protected concerted activity within the meaning of the NLRA and that Apex therefore engaged in unlawful retaliation by terminating Richardson for those posts.
The ALJ agreed. While Richardson’s LinkedIn posts were far from core examples of protected concerted activity, the ALJ viewed them as a clear attempt “to enlist other employees in his crusade against what he perceived as [Apex’s] discrimination against males,” and reasoned that “[t]he conduct of a single employee in enlisting the support of fellow employees for their mutual aid and protection is as much concerted activity as ordinary group activity.”
The ALJ further found that Apex could not justify terminating Richardson for merely using overheated or exaggerated rhetoric where there was no evidence that Richardson’s posts were “deliberately or maliciously false or made with a reckless disregard for the truth” (something Apex made little genuine effort to establish), which would have rendered them unprotected.
The Shifting Risk Profile for Employers
Neither decision reflects any substantial change in legal doctrine. Instead, both decisions reflect employees’ increased willingness and ability to use existing doctrine for what previously might have been surprising purposes, and courts’ and agencies’ increased receptivity to their arguments.
That contextual change is still significant, however, and, from a practical perspective, is perhaps no different than a doctrinal shift.
Employees who, like the plaintiffs in Brown, vocally oppose anti-discrimination legislation risk creating an actionably hostile work environment in violation of federal and state anti-discrimination laws, and often violate company anti-harassment policies.
Likewise, employees who, like the complainant in Apex, publicly accuse their employer of “allow[ing] outright hate to proliferate,” describe an HR representative at a DEI panel as going on a “tirade about ‘white males’,” and claim that the company “[c]reate[d] a culture of discrimination and sharing bigoted thoughts” would often raise the same types of concerns and would, at least, often be on the wrong side of company codes of conduct that emphasize the need to engage in professional and respectful communication.
Both Alaska Airlines and Apex cited these rationales as the basis for their decisions, and many employers have historically relied on similar grounds for taking various forms of disciplinary or corrective action with little fear of liability.
But when the employees’ speech is credibly cast as religiously motivated (as in Alaska Airlines) or as an (overheated) attempt to oppose allegedly discriminatory practices, and when courts and agencies are receptive to such characterizations, the employer’s response might suddenly appear driven by religious animus or an attempt to stop employees from advocating and organizing for better working conditions.
Employers need not tolerate every broadside against their DEI commitments, nor otherwise put up with genuinely hostile, harassing, demeaning, or abusive behavior. But employers should consider exercising greater caution than they might have previously thought necessary when confronting employee speech that is critical of, or hostile to, those commitments.
Responding to critical employee speech is an increasingly fraught exercise. Issues arise quickly following a heated post or an internal complaint and are often accompanied by significant pressure to act. Barack Ferrazzano is following these developments closely and can help employers navigate these situations thoughtfully.
