Fifth Circuit issues mixed-bag ruling in case of flight attendant fired after sharing anti-abortion content

(CN) — A Fifth Circuit panel Thursday partially overturned a jury’s ruling that Southwest Airlines engaged in religious discrimination by firing a flight attendant for sending anti-abortion messages via Facebook to the president of the airline’s flight attendants’ union.

Southwest fired flight attendant Charlene Carter in 2017 after she sent Facebook messages containing graphic imagery of aborted fetuses to the president of flight attendant union TWU Local 556 and also posted similar content on her Facebook page. Carter was objecting to union members participating in the 2017 Women’s March. She perceived this as union-sponsored advocacy for abortion, which she opposed due to her Christian beliefs.

Southwest found that Carter had violated the company’s social media policy and that her messages constituted bullying and harassment.

Carter sued both Southwest and the union, arguing her termination constituted illegal religious discrimination. A federal jury in the Northern District of Texas found in Carter’s favor in 2022.

On appeal, a Fifth Circuit panel Thursday partially overturned the jury’s verdict, finding that Carter had not presented evidence to support her Title VII claim for discrimination based on religious beliefs, as she was fired for her conduct rather than solely for her beliefs. However, the panel also upheld the jury’s ruling that Southwest unlawfully refused to accommodate Carter’s religious practices, rejecting the airline’s argument that the lower court did not provide sufficient jury instruction on the issue.

The panel also upheld the jury’s verdict in Carter’s favor on her Title VII religious discrimination and Railway Labor Act breach of duty of fair representation claims against TWU Local 556 based on the union’s president, Audrey Stone, reporting Carter to Southwest Airlines for her Facebook messages. The panel upheld the jury’s verdict that the union discriminated against Carter and unlawfully attempted to cause her termination.

The panel ruled that a union “attempting to cause” an adverse employment action is an actionable offense under Title VII. It also rejected the union’s argument that Carter’s Facebook messages were not protected conduct under the Railway Labor Act. The key issue for a fair representation claim is whether the union acted arbitrarily or discriminatorily, the panel ruled, not whether Carter’s conduct was protected organizing activity.

The panel reversed the jury’s verdict against Southwest on Carter’s Railway Labor Act retaliation claim and upheld U.S. District Judge Brantley Starr’s dismissal of Carter’s Railway Labor Act interference claim against Southwest. Carter argued that Southwest retaliated against her for opposing union leadership and engaging in anti-union organizing activity and that it interfered with how its employees organize. The panel ruled that Carter had not alleged that the airline had shown anti-union animus as required for such claims.

Mark Mix, the president of the National Right to Work Legal Defense Foundation, which represents Carter in the lawsuit, said in a statement that Thursday’s ruling was a “victory” for Carter.

“The Court of Appeals has affirmed that both TWU union bosses and Southwest Airlines violated Carter’s legal rights when the union instigated her termination by Southwest in response to voicing her opposition to union political activism, including union activities that violated her religious beliefs,” Mix said.

A spokesperson for Southwest Airlines said in a statement that the airline “appreciates the Fifth Circuit’s careful consideration of the many legal and factual issues involved in this matter.”

“The decision clarifies several important aspects of religious discrimination claims under Title VII, as well as claims of interference and retaliation under the Railway Labor Act, which will be helpful for airlines and other employers to consider in the future,” the spokesperson said.

TWU Local 556 did not immediately respond to a request for comment on the ruling.

The appeals panel also overturned an injunction prohibiting Southwest and the union from discriminating against any Southwest flight attendant for their religious beliefs or practices, deeming it vague and overbroad, and it further reversed a controversial sanctions order that would have required Southwest attorneys to receive “religious liberty training” from the Alliance Defending Freedom, a right-wing Christian legal group.

Starr had issued the training order as part of a contempt ruling against Southwest. He found that the airline had not complied with an order requiring it to notify its flight attendants that it’s not allowed to discriminate against them because of their religious beliefs or practices. The airline at the time circulated an email stating that it does not discriminate based on religion and also issued an internal memo expressing disappointment with the jury’s verdict and reiterating that Carter’s conduct violated company policies.

While the appeals court panel agreed with Starr’s finding that Southwest had failed to comply with the notice order, it ruled the training sanction was not sufficiently tailored to ensuring future compliance with Title VII.

“Courts are tasked with resolving limited questions and administering justice to the parties before them,” Senior U.S. Circuit Judge Edith Brown Clement wrote in the panel’s opinion. “But when a court’s contempt sanction in a civil matter is both overbroad in scope and undoubtedly punitive in nature, the judiciary risks appearing contemptuous like the contemnor. In this civil case, the sanction plainly exceeded remedial bounds and sought to punish Southwest’s attorneys through a directive that did little to coerce the airline’s compliance with the district court’s judgment.”

U.S. Circuit Judges Kurt Engelhardt and Cory Wilson, both Donald Trump appointees, joined Clement, a George W. Bush appointee, on the panel.