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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