5th Circuit: Religious Liberty Training Order Against Attorneys in Title VII Case Was Improperly Punitive

In Carter v. Local 556, Transport Workers Union of America, (5th Cir., May 8, 2025), the U.S. 5th Circuit Court of Appeals reversed portions of a Texas federal district court's judgment against Southwest Airlines and its employee union that found violations of Title VII of the 1964 Civil Rights Act. At issue was the airline's firing of a flight attendant for posting on Facebook and privately sending to the president of the flight attendants’ union images and videos of aborted fetuses. The flight attendant opposed the union's support for abortion rights. The appellate court held that a judgement in favor of Southwest should have been entered on the flight attendant's claim that she was fired because of her religious beliefs. It concluded that there was insufficient evidence to support a judgment against Southwest on belief-based intentional discrimination. The court however affirmed the jury's verdict that found Southwest had violated Title VII by firing the employee for her religious practices. Southwest failed to convince the jury that accommodating the flight attendant by granting an exception to its social media, bullying and harassment policies would create an undue hardship for Southwest.

The 5th Circuit held that the district court's injunction entered in the case was overbroad and vague. The court also vacated a contempt order that had been issued against Southwest, and which subsequently became the center of much press attention. (See prior posting.) As explained in part by the 5th Circuit:

... [A]s part of its judgment, the district court ordered Southwest to “inform Southwest flight attendants that, 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 notice that Southwest distributed to its flight attendants, however, stated a court “ordered us to inform you that Southwest does not discriminate against our Employees for their religious practices and beliefs.”...

Carter moved the district court to hold Southwest in contempt, arguing the email merely stated that Southwest “does not discriminate,” rather than “may not discriminate,” a material deviation from the court’s language... The district court agreed with Carter and held Southwest in contempt. As a sanction, the district court ordered Southwest to circulate a statement—verbatim—to its flight attendants “to set the record straight,” and ordered three of Southwest’s in-house attorneys to attend religious-liberty training with the Alliance Defending Freedom....

... We ... cannot say the district court abused its discretion in holding the airline in contempt....

... [B]ut religious-liberty training would do little to compel compliance with the order or to compensate Carter. The attorneys ordered to attend training were not involved in the decision to terminate Carter, and no evidence offered at trial suggests they demonstrated animus against Carter or her religious beliefs.... Additionally, the training would not be limited to Title VII training but instead was to encompass topics irrelevant to securing compliance with a Title VII judgment. It was plainly not the least-restrictive means of remedying Southwest’s non-compliance....

Punitive sanctions exceed the scope of a federal court’s civil contempt authority.

Reuters reports on the decision.

DC Circuit Revives Contempt Proceedings in RFRA Suit Against Fire Department

In Calvert v. Potter, (DC Cir., Jan. 28, 2025), the U.S. Court of Appeals for the D.C. Circuit remanded to the district court a suit by a group of D.C. firefighters who claim that the D.C. Fire Department violated an injunction issued in 2007 vindicating their rights under the Religious Freedom Restoration Act. The injunction required the Department to allow firefighters who wore beards for religious reasons to work in field operations. However, 13 years later the situation became more complex, as the D.C. Circuit explained:

As COVID-19 spread in March 2020, the Department implemented a new facial hair policy and mandated the use of masks during patient contact. The Department transferred the four bearded firefighters it still employed to administrative roles “due to concerns about their ability to properly wear N95 respirators with facial hair.”...

The district court denied the motion for civil contempt.... The court declined to hold the Department in contempt because it “acted in a reasonably cautious way, under unprecedented and extraordinary circumstances, to keep plaintiffs and the public it served as safe as it could.”...

The Court of Appeals rejected the district court's conclusion: 

Good-faith compliance may be relevant to mitigation at the remedies stage, but the court lacks discretion to excuse civil contempt based on the contemnor’s good faith. ... 

The firefighters had a private right to enforcement of the original injunction, which protected their religious freedom and permanently forbade the Department from enforcing the 2005 facial hair policy against them. The district court had no general discretion to excuse civil contempt.... 

Instead, the court was required to determine whether the Department violated the firefighters’ rights under the 2007 injunction.... Even if the Department’s behavior was reasonable in light of the pandemic, good faith and lack of willfulness is not a defense to civil contempt....

First Liberty Institute issued a press release announcing the decision.

5th Circuit Stays Contempt Order Requiring 3 Attorneys Take Religious Liberty Training

In Carter v. Local 556, Transport Workers Union of America, (5th Cir., June 7, 2024), the U.S. 5th Circuit Court of Appeals granted a stay pending appeal of a controversial contempt sanction imposed by a Texas federal district court against three attorneys for Southwest Airlines. (See prior posting.) Southwest had failed to adequately comply with a remedial Order imposed on it for firing a flight attendant because of her social media posts and private messaging featuring aborted fetuses to illustrate her religious objections to abortion.  The district court, among other things, ordered that the attorneys responsible for non-compliance with the prior Order attend at least 8 hours of religious liberty training conducted by the Christian legal non-profit Alliance Defending Freedom. In staying the contempt sanction, the Court of Appeals said in part:

[T]here is a strong likelihood that the contempt order exceeded the district court’s civil contempt authority....

Civil contempt sanctions are “remedial” and “designed to compel future compliance with a court order” by either “coerc[ing] the defendant into compliance with the court’s order” or “compensat[ing] the complainant for losses sustained” as a result of the noncompliance.... Criminal contempt sanctions, by contrast, are used to “punish defiance of the court and deter similar actions.”... Generally, “criminal [contempt] penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings.”...

At bottom, it appears that the district court sought, at least in part, to punish Southwest for what the district court viewed as conduct flouting its holding that Southwest had violated Title VII. But its punitive sanctions likely exceed the scope of the court’s civil-contempt authority.

Law dork reports on the decision.