Charlene Carter was a flight attendant at Southwest. She allegedly claimed that she was fired because she objected to her union's participation in a protest for which Planned Parenthood was a sponsor. Prior to that, Carter sent repeated messages on social media to the president of Carter's flight attendant union, expressing outrage over the union president’s alleged pro-abortion beliefs. The union president attended the 2017 Women’s March in Washington, D.C. calling for the protection of abortion rights. Many of those messages contained graphic images of aborted fetuses.
Southwest claimed she was fired because her actions violated Southwest’s code of civility. Local 556 of the Transport Workers Union also said Carter harassed the union president in private messages.
After termination, Carter filed a discrimination claim saying she was terminated for her religious beliefs. A trial was held, and the jury found that Southwest violated Carter’s right to religious speech and awarded her $800,000.
In addition to damages, the District Court judge ordered Southwest to tell flight attendants that under federal law, it “may not discriminate against Southwest flight attendants for their religious practices and beliefs.” However Southwest attorneys did not follow the order to a “T.” The attorneys wrote that Southwest “does not discriminate against Southwest flight attendants for their religious practices and beliefs.”
The Judge in the case became incensed with the attorneys for Southwest and held them in contempt. The judge then ruled that Southwest “didn’t come close to complying with the Court’s order.” He schooled the airline on the definitions of “may,” “does,” and ”tolerate” — complete with footnotes citing the Merriam-Webster dictionary. The judge then ordered Southwest to email a new, verbatim statement declaring that the airline may not discriminate against flight attendants for religious beliefs “including — but not limited” to abortion.
The judge then ordered the three Southwest attorneys working the case to undergo eight hours of religious-liberty training this month by the Alliance Defending Freedom (ADF), calling the group “particularly well-suited” for the work.
On the other hand, the Southern Poverty Law Center has called ADF an anti-LGBTQ hate group.
This order for the attorneys to attend the training caused maelstrom to hit. First, groups have filed an ethics complaint against the judge for the order stating it is beyond the scope of the court’s power to do so. Southwest claims that the judge’s order imposes restrictions on Southwest's own free speech. "By ordering religious-liberty training — with the unprecedented requirement that the ADF, a group with a professed religious viewpoint, conduct the training — the court is sanctioning Southwest for its own protected activity of expressing its viewpoint," the airline said. Southwest said the ruling exceeds the civil-contempt authority, which can only be used to "coerce compliance with a court order or compensate a party for noncompliance."
Legal pundits are disturbed at the order for religious liberty training. "ADF is a religious advocacy group with a Christian mission, and self-identifies as such," University of Virginia School of Law professor Micah Schwartzman said. "Ordering training from a group whose mission is to promote a certain religious vision is a measure that I don't think I've ever seen from a federal judge in any kind of sanction order."
The question whether the NLRB would sanction the termination is still out there. Although not an NLRB case, if Carter and other flight attendants thought the same, would that be a concerted activity protected under the National Labor Relations Act? Further, would the civility policy that Southwest claims Carter violated be struck down by the NLRB as limiting the concerted efforts and speech of employees?
Religion in the workplace is only going to get muddier. HR needs to be prepared for any requests or actions and should contact legal counsel if a similar situation arises.
Source: Reuters 8/17/23, Law360 8/17/23, AP 8/9/23