NEW ORLEANS – Whether a flight attendant was fired for her religious beliefs or for improper conduct when she sent graphic anti-abortion material and disparaging messages to a union leader was at the heart of appeals court arguments Monday, as Southwest Airlines and the union sought to reverse an $800,000 award to the woman.
The case also involves an earlier judge's contempt order requiring three of the airline's attorneys to undergo religious liberty training from a conservative advocacy group.
Three judges with the 5th U.S. Circuit Court of Appeals heard arguments Monday. Appellate Judge Corey Wilson closely questioned attorneys on both sides of the lawsuit, filed by flight attendant Charlene Carter against the airline and her union.
Wilson said the key question in the case was how an employer should balance allowing actions such as Carter's messages, while also not creating a hostile workplace for other employees.
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.
Wilson questioned whether Carter was treated fairly when the airline looked at her Facebook feed and found the material deemed objectionable.
Shay Dvoretzky, an attorney for Southwest, said the airline only looked at Carter's social media because she had used Facebook to send the anti-abortion messages.
According to court documents, Carter called the co-worker and union leader “despicable” for attending the 2017 Women's March in Washington, D.C., which featured calls for protecting abortion rights.
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 co-workers “as long as it's cloaked in religious conduct or religious practice.”
Monday's arguments did not address another aspect of the appeal – a contempt order requiring religious law training for three Southwest attorneys.
The airline argues the training violates First Amendment speech rights of the attorneys.
Lawyers for Carter say the type of training ordered “is a commonplace civil contempt sanction.” They deny it impinges on the airline's free speech rights.
The contempt order was issued after U.S. District Judge Brantley Starr, a Trump nominee who joined the bench in 2019, ordered the airline to tell flight attendants that under federal law, it “may not discriminate against Southwest flight attendants for their religious practices and beliefs.”
Instead, the Dallas-based airline told employees that it “does not discriminate,” and told flight attendants to follow the airline policy it cited in firing Carter.
Starr found Southwest in contempt in August for the way it explained the case to flight attendants. He ordered Southwest to pay Carter's most recent legal costs and he dictated a statement for Southwest to relay to employees. He ordered the three lawyers to complete at least eight hours of religious liberty training from the Alliance Defending Freedom, which offers training on compliance with federal law prohibiting religious discrimination in the workplace.
The conservative group has played a high-profile role in multiple legal fights. They include defending a baker and a website designer who didn't want to work on same-sex marriage projects, efforts to limit transgender rights and a challenge to long-standing federal approval of a medication used in the most common way to end a pregnancy.
The initial monetary award against Southwest and the union was $5.1 million, the bulk to be paid by Southwest. The judge, citing federal limits on punitive damages, later reduced it to about $800,000, including $450,000 in damages and back pay from Southwest, $300,000 in damages from the union and about $60,000 in interest.
