Judge Sanctions Southwest’s Attorneys, Orders ‘Religious-Liberty Training’ by Alliance Defending Freedom
The sanctions came after Southwest Airlines’ “willful” distortion the court’s order in a religious liberty case: “the Court didn’t stutter.”
A federal judge in Texas sanctioned three Southwest Airlines attorneys for defying his order after the company lost a religious freedom lawsuit brought by flight attendant Charlene Carter. The judge ordered three company attorneys to attend eight hours of “religious-liberty training” conducted by the Alliance Defending Freedom.
“We are happy to help Southwest achieve that goal by providing training on Title VII and other applicable laws barring religious discrimination,” ADF Chief Legal Counsel Jim Campbell told Legal Insurrection.
After Southwest engaged in religious discrimination, the court ordered a remedial statement
A jury found Southwest violated Title VII and discriminated against Carter based on her religion. Southwest fired her for violating the company’s social-media “civility” policy with her anti-abortion posts.
To prevent future religious discrimination, the judge ordered Southwest to email its flight attendants a statement informing them that under Title VII, Southwest may not discriminate against its employees “based on religious practices or beliefs.” The judge left the exact language to Southwest, provided the statement conveyed Title VII’s prohibition.
Southwest’s attorneys circulated drafts of the statement before settling on a version and emailing it to the company’s flight attendants: “The court . . . ordered us to inform you that Southwest does not discriminate against our Employees for their religious practices and beliefs.” (emphasis added)
The flight attendant object to the language
The flight attendant against whom Southwest discriminated moved for sanctions, arguing Southwest defied the court order by using “does not.” The judge agreed.
The judge found the three Southwest attorneys deliberately contorted the message of a court-ordered statement. The sanctions order dissects the statement’s language, noting that “Do conveys nothing about a prohibition” and merely refers to Southwest’s current practice, which could change in the future.
The judge contrasted “does not” with “may not”: “May—the word the Court used—means ‘have permission to. So may conveys the presence or absence of a prohibition.” By substituting “does not” for “may not,” Southwest failed to inform its flight attendants of Title VII’s prohibition.
Worse still, the judge found, the statement implied the court believed Southwest does not engage in religious discrimination: “By saying ‘the court ordered us to inform you,’ the notice suggests that whatever follows that statement is a communication from the Court.”
The judge found Southwest compounded the problem by issuing a follow-up message to the effect that the social-media “civility” policy remained in effect and would be enforced in a manner the jury found discriminatory.
The judge sanctioned Southwest’s attorneys to ensure compliance, infuriating an atheist organization
The judge ordered Southwest to send three of its attorneys involved in drafting the statement to ADF “religious-liberty training” for “a minimum of 8 hours of instructional time.” The company “must transport ADF’s representative . . . and be responsible for any food, accommodation, or other travel expenses for ADF’s representative.”
The atheist organization Freedom From Religion Foundation voiced strident objections to the court’s order. The judge “revealingly referenced the biblical story of Adam, referring to it as ‘historical,'” which the FFRF apparently found “bizarre.”
The judge referenced the biblical story of Adam, and The Fellowship of the Rings, to highlight the difference between “may” and “does”:
After God told Adam, “[Y]ou must not eat from the tree [in the middle of the garden],” imagine Adam telling God, “I do not eat from the tree in the middle of the garden”—while an apple core rests at his feet. Or where Gandalf bellows, “You shall not pass,” the Balrog muses, “I do not pass,” while strolling past Gandalf on the Bridge of Khazad-dûm. (footnotes omitted)
FFRF also took the judge to task for selecting a Southern Poverty Law Center-designated “anti-LGBTQ hate group” to provide “religious-liberty training.”
An ADF representative challenged these accusations, accusing SPLC of being “a thoroughly discredited, blatantly partisan activist outfit.”
The judge ordered Southwest to send a new statement—verbatim
The judge acted to avoid a repeat of the “does not” statement and ensure Southwest informed its flight attendants of that statement’s inaccuracy. To that end, the sanctions order includes a statement Southwest must email verbatim:
The United States District Court for the Northern District of Texas . . . found that the statement’s use of “does not discriminate” was incorrect. Accordingly, the Court has ordered Southwest’s Legal Department to issue the following amended statement:
Under Title VII, Southwest may not discriminate against Southwest flight attendants for their religious practices and beliefs, including—but not limited to—those expressed on social media and those concerning abortion.
The National Right to Work Foundation, which represented Carter, praised this decision. “[T]he District Court’s order rightly shuts down Southwest Airlines’ bald-faced attempt to dodge its responsibility to inform flight attendants of its wrongdoing,” according to Mark Mix, president of NRWF.
Southwest objected to the sending court-order language verbatim, arguing “a particular statement would violate Southwest’s First Amendment right against compelled speech.”
The judge rejected this argument, finding “a compelling governmental interest in informing flight attendants of their rights under Title VII.” The judge also noted that Title VII requires courts to craft remedies for violations and that the verbatim requirement was the least onerous means the court had of ensuring compliance.
Southwest told Legal Insurrection the company “plan[s] to appeal the recent court order and [is] in the process of appealing the underlying judgment to the Fifth Circuit Court of Appeals.”
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Comments
Is there no one in SW management that will remove the shovel from their hands?
They are not only digging deeper they are hitting each other over the head.
Southwest attorneys: Hey, Grammerly said it was alright.
It’s not with appealing – move on. Yet they SW fights tooth-and-nail like idiots.
I’m going to start calling them Oberlin Airlines.
The woke never give up
Oberlin Airlines. That’s really good!
This is a great decision and award of sanctions but will it be sustained on appeal?
It depends on whether the SWA legal department gets adult supervision quickly enough.
Freedom of religion is still the magic formula for beating freedom of association having been taken away by the civil rights act.
“least onerous means the court had of ensuring compliance“
What would be the “maximum” onerous means by which the court could compel compliance? Because I’d like to see that happen.
Requiring—as many organizations do—that ALL members (current and future) get at least 8 hours of instruction in things like this. Every year. Examples of this sort of required instruction are things like DEI* training, racism, etc. Many to most universities have been doing this sort of thing for some time now. A number of alumni have started fighting back against this in earnest. The result is that many universities have stopped the offensive practices. But certainly not all of them.
That’s “diversity, equity, inclusion” in case anyone isn’t aware.
Permit me to add to what I already wrote.
The maximum would be to find the attorneys guilty of “conspiracy to deprive” Carter, and likely others who might come forward, of their Constitutional rights. I doubt most people reading this will recall the bad old days in the 1960s when the FBI infiltrated the KKK to acquire information that led to the conviction and imprisonment of some of its members.
A conspiracy exists when two or more people 1) discuss the commission if a crime and then 2) “take a step in furtherance” of committing it. It sure looks to me like there’s an explicit, defiant ongoing commission of a conspiracy to deprive.
And anticipating the “we didn’t know it was a crime” defense: ignorance of the law is not an excuse. This would be particularly comical if the defendants hold themselves out to be lawyers.
Which they do.
“An ADF representative challenged these accusations, accusing SPLC of being “a thoroughly discredited, blatantly partisan activist outfit.”
Ooh! Let the record show, bab-eee!
Counsel must attend “training” from opposing counsel? Where does that come from?
It comes from the Southwest counsel getting miseducated in law school about the First Amendment, so he is prescribing education from the experts.
He is actually letting them off quite easily. He could have initiated disbarment proceedings.
“Southwest objected to the sending court-order language verbatim, arguing ‘a particular statement would violate Southwest’s First Amendment right against compelled speech.’ “
Which is rich: it’s OK for SWA to trample its employees’ 1A rights, but heaven forfend should someone compel SWA to confess the crime explicitly to its employees who might in the past , present, or future know about the illegality of the policy.