A Texas federal court ordered three in-house lawyers for Southwest Airlines to take religious freedom courses from the Alliance Defending Freedom (ADF) as a sanction for civil contempt. In Carter v. Transport Workers Union of America, the judge issued the sanctions after reviewing the content of a court-ordered company notice on employee nondiscrimination rights. The U.S. Court of Appeals for the Fifth Circuit has stayed that order pending appeal, however, holding that the district court likely exceeded its authority to sanction civil contempt.
The religious-liberty training sanctions came about as part of an employment discrimination claim. Southwest Airlines fired an employee claiming that her anti-abortion posts violated Southwest’s social media policies regarding civility. The fired employee filed a religious discrimination lawsuit under Title VII of the Civil Rights Act, and a jury awarded the employee seven-figure damages, which were later reduced to $800,000.
In addition to the monetary award, the district court ordered Southwest to inform its employees that the airline “may not” engage in religious discrimination against them based on “their religious practices and beliefs.” The notice that Southwest actually sent advised its workers that Southwest “does not” discriminate against them. The district court found “that change radically shifted the meaning of the notice” and that “[i]n the universe we live in—the one where words mean something—Southwest’s notice didn’t come close to complying with the Court’s order.”
The district court determined that Southwest’s failure to comply with its order demanded sanctions and ordered three of Southwest’s in-house counsel to attend religious-liberty training classes offered by the ADF as a sanction for not using the direct notice language set forth in the court’s order. “Southwest needs to understand, when communicating with its employees, that federal protections for religious freedom override any company civility policy,” the district court emphasized.
The Fifth Circuit granted Southwest’s stay of the sanctions order pending appeal, finding that Southwest was likely to succeed on the merits of its appeal. First, the appellate court identified the four factors it considers in determining whether to stay an order pending appeal: (1) whether the applicant has made a strong showing that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured in the absence of a stay; (3) whether issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
The Fifth Circuit held that Southwest was likely to succeed on the merits of its appeal because “there is a strong likelihood that the contempt order exceeded the district court’s civil contempt authority.” The appellate court found that the religious-liberty training order would not compel compliance with the district court’s order that Southwest provide the nondiscrimination notice to its employees. The court also noted that the religious-liberty training sanction order would provide no benefit to the plaintiff—one of the requirements of a valid civil contempt sanction.
ABA Litigation Section leaders understand why the court ordered Southwest’s in-house counsel to take training courses on religious equality—but not why a specific organization’s training was used. “While it certainly can be appropriate to order training, no one thinks it is appropriate to order indoctrination. Ordering someone to receive training from an overtly partisan organization raises at least the appearance of impropriety,” says Aaron Krauss, Philadelphia, PA, Litigation Section Book Board member. “At the very least, the district court could have ordered the lawyers to take a class but leave it up to them as to which exact class to take,” he offers.
Other Section leaders note that skepticism about the sanction order is not the same thing as a valid legal challenge to it. “The district court’s choice of ordering that the eight hours of mandatory training of the relevant Southwest individuals be conducted by a representative of ADF, self-proclaimed as an organization that is very political and ‘advances the God-given right to live and speak the Truth,’ may raise some eyebrows,” observes Rebecca Sha, New Orleans, LA, cochair of the Section’s Minority Trial Lawyer Committee. “However, the district court cited authorities regarding the propriety of ADF conducting the training, and it likely cannot form the basis for challenging the district court’s choice given the relatively low burden the training imposes to Southwest,” Sha suggests.
