Southwest told an appellate court they fired Charlene Carter for creating a "hostile" workplace. They have a point.

Jun 04, 2024

Lawyers for Southwest Airlines were back in court Monday, a year after a Trump-appointed federal judge ordered them to attend eight hours of “religious-liberty training” from the right-wing hate group Alliance Defending Freedom and pay around $800,000 to a Christian employee who claims she was fired because of her faith.

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All of this stems from a 2017 case involving Charlene Carter, a flight attendant who was fired by Southwest for posting anti-abortion messages online. Actually, it was much more than that. She repeatedly sent emails to and made social media posts about her union president for attending the Women’s March (“You truly are despicable in so many ways&rdquo and didn’t stop despite a lack of responses. She also accused the union president of “murder”… for supporting abortion rights.

Carter was soon fired for violating company policies "regarding civility” because she was “harassing” the union president and because, in her public Facebook posts, she was “identifiable as a Southwest Airlines Employee.” (There were pictures of her in uniform, alongside other employees, and displaying her employee badge.)

She claimed she was fired for expressing her Christian beliefs, suggesting this was religious persecution, even though there was no evidence Southwest was punishing her for her faith.

After she filed a grievance with the union, and an arbitrator sided with the airline, she decided to sue both Southwest and the union.

To my shock, a jury agreed with her. They decided Carter should get her job back, that Southwest had to stop discriminating against employees on the basis of religion, and that the company had to “notify its flight attendants of Title VII’s prohibition on religious discrimination.” They also awarded Carter $5.1 million, including nearly $1 million from the union. (The amount was later reduced to about $800,000.)

While the religious discrimination angle is what Monday’s court hearing was focused on, it was the notification bit, though, that became a bigger and separate controversy.

Southwest was supposed to tell its flight attendants that the company “may not discriminate” against them due to their religious practices and beliefs. That future tense was important. It implied they wouldn’t do such a thing ever again. When the notice went out, however, it said Southwest “does not discriminate” on the basis of religion. As in: We don’t currently do that but who knows what the future holds. They also didn’t include a mention of Title VII in their notice.

Carter then asked the court to basically punish Southwest for not doing what it was ordered to do.

Last August, U.S. District Judge Brantley Starr issued a decision, stating that “It’s hard to see how Southwest could have violated the notice requirement more.” Then, just to offer up some examples of how egregious he thought Southwest’s behavior was, he offered “modified historical and movie anecdotes”… from the Bible and Lord of the Rings. (I repeat: He treated the Bible as historical.)

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.

Starr held Southwest in contempt, even writing out a new memo the company had to send its employees. But because Starr said there was a “chronic failure” regarding “federal protections for religious freedom,” he said three lawyers for Southwest needed to go through religious freedom training.

Starr even suggested who should provide that training: Alliance Defending Freedom.

In explaining that sanction, Starr argued Southwest wouldn’t have to pay for the training, merely the cost of flying someone from ADF to the company’s headquarters in Dallas, which he claimed was a “minimal burden.”

But why that group? It’s not like they had anything to do with this case.

Starr claimed ADF was one of many “esteemed non-profit organizations that are dedicated to preserving free speech and religious freedom.” ADF offered it free of charge, he added.

Nowhere in the order was there any explanation for why ADF, and not a more credible organization, had to provide the training.

Journalist Chris Geidner explained at Law Dork why this was an absurd idea. ADF, he explained, was hardly some neutral party:

ADF’s lawyers — including Erin Hawley, whose husband is Sen. Josh Hawley — are the ones currently litigating to end the availability of one abortion medication drug, mifepristone, nationwide. The group was behind 303 Creative v. Elenis, the case from this past U.S. Supreme Court term about the woman who didn’t want to make wedding websites for same-sex couples — another case that could have substantial fallout.

ADF is not an unbiased, educational institution — nor does it pretend to be. The only relevant “training” its website discusses in the training section is a “Legal Academy” connecting “like-minded attorneys” in an effort to show lawyers how “to effectively advocate for religious liberty, free speech, the sanctity of life, and marriage and family.“

Geidner was right; ADF is a conservative legal group that only sees religious freedom while wearing Jesus-tinted glasses. They have argued that “sodomy” should be illegal, spread lies about LGBTQ people supporting pedophilia, and defended forced sterilization of trans people in Europe. Bigotry in the name of Christianity counts as religious freedom for ADF lawyers even when non-discrimination laws are in play. Their arguments, regardless of right-wing judges ruling in their favor, have been widely criticized by legal scholars.

Geidner also pointed out that this was a bizarre choice since Carter herself never asked for this (even if she supported the idea of Southwest’s lawyers going through a training). It wasn’t until that ruling that Starr even suggested ADF conducting the sessions.

So what would an ADF religious freedom training look like? Who knows. There were no specifics offered. Plus, their track record suggests they don’t know what religious freedom is. It seems to be whatever conservative judges will let them get away with.

It wasn’t even clear ADF would agree to this, though the fact that Starr mentioned one person from ADF flying to Dallas on Southwest’s dime suggested there was someone in mind. But what else would you expect from a right-wing Federalist Society judge with a lifetime appointment on the bench?

On Monday, lawyers for Southwest appeared in front of the 5th U.S. Circuit Court of Appeals, arguing that the monetary award should be reversed in its entirety because this wasn’t a case of religious persecution:

Carter’s attorneys argue in briefs that she made clear to management she sent the material because she was a Christian and an opponent of abortion. They say firing her violated federal law shielding employees from religious-based discrimination and that Southwest management and the union, which complained about Carter’s messages, should be held liable for her firing.

The judge asked Carter’s attorney whether any worker should be allowed to get away with harassing coworkers “as long as it’s cloaked in religious conduct or religious practice.”

…

Southwest argues it broke no laws firing Carter because she violated company rules requiring civility in the workplace by sending “hostile and graphic” anti-abortion messages to the union leader, who was a fellow flight attendant.

The ADF-led training, which still hasn’t occurred yet, wasn’t brought up during oral arguments but the court’s decision could impact that as well. Southwest’s lawyers, in their appellate brief, argued that getting training from ADF was a violation of their rights because it “forces Southwest and its in-house attorneys to listen to the views of an ideological advocacy group.”

In a separate amicus brief, the Freedom From Religion Foundation’s Sam Grover wrote that it was “entirely unprecedented” for a court to force attorneys to attend training “by a specific ideological advocacy organization, let alone one that bakes religious teachings into its training.”

… rather than creating an avenue for judges to insert their personal viewpoint into sanctions orders by allowing for the selection of specific advocacy organizations to conduct training, this Court has the opportunity to keep Pandora’s box firmly shut. The Court should seize this opportunity.

As Bloomberg’s Patrick Dorrian explains, the training could be dropped entirely depending on the outcome of this case:

The myriad issues on appeal include whether the verdict against Southwest was supported by the evidence, so the training sanction may not be considered if that verdict is overturned or a new trial is granted.

It’s also possible that the Fifth Circuit will say the contempt finding is unsupported and that Starr had no basis for the sanction. That might mean the court won’t address whether religious-liberty training was appropriate.

What about ADF conducting the training? That, too, may not hold up:

The appeals court won’t wade into whether the ADF was properly designated as the trainer even if it does reach the sanctions issue and upholds the underlying contempt finding, University of North Texas at Dallas College of Law associate professor Michael Maslanka predicted. It will instead find a way to say the parties should agree on who will conduct the training, he said.

It’s also more likely that the Fifth Circuit will rule the Southwest attorneys should be sent for ethics training rather than religious liberty training, Maslanka said.

ADF filed its own brief saying it was absolutely well-equipped to provide religious freedom training in part because they’ve been very successful at winning Supreme Court cases involving the First Amendment. (They never mention that the Supreme Court has a right-wing supermajority stacked with ideologues like themselves.) They also cite praise from several Republican lawmakers.

I have no clue why they think any of this shows their neutrality.

The bottom line for now, though, is that the case is in the hands of different judges. Ideally, they’ll reverse the earlier ruling and nix the training sessions in the process. It never should have gotten to this point. Carter was never fired for her religious faith; she was fired for being a terrible employee. But professional victims can never admit that they’re the problem.