Fifth Circuit Blocks Order Requiring Defendants' Lawyers "to Attend 'Religious-Liberty Training' as a Sanction"

From today's decision in Carter v. Southwest Airlines, Inc. (consolidated with Carter v. Local 556, Transport Workers Union of Am.), decided today by Judge Edith Brown Clement, Kurt Engelhardt, and Cory Wilson (for my earlier post on the case, see here):

On August 7, 2023, the district court held Southwest Airlines in contempt for failing to comply with a Title VII judgment and ordered company lawyers to attend "religious-liberty training" as a sanction…. [W]e GRANT Southwest's motion for a stay pending appeal because the order likely exceeded the district court's civil contempt authority….

A jury found that Southwest Airlines violated Title VII and the Railway Labor Act by firing flight attendant Charlene Carter because of her religion; specifically, for publicly posting and privately messaging to another Southwest flight attendant images of aborted fetuses in furtherance of her religious beliefs. As part of its judgment, the district court ordered Southwest to, among other things, post the verdict and judgment on company bulletin boards and to email the same to all flight attendants, informing them of their Title VII and RLA rights (the "notice requirement").

{The district court also enjoined Southwest "from discriminating against Southwest flight attendants for their religious practices and beliefs, including—but not limited to—those expressed on social media and those concerning abortion" and "from failing to reasonably accommodate Southwest flight attendants' sincerely held religious beliefs, practices, and observances."}

To comply with the judgment, Southwest reinstated Carter, posted the verdict and judgment in all flight-attendant breakrooms, and emailed all flight attendants the verdict and judgment. The email stated that "a federal court in Dallas entered a judgment against Southwest" and "ordered us to inform you that Southwest does not discriminate against our Employees for their religious practices and beliefs." Southwest also published an internal memo stating that Southwest believed Carter's messages were "inappropriate, harassing, and offensive," "extremely graphic," and "in violation of several Company policies." The memo further stated that, although Southwest would implement the judgment, Southwest was "extremely disappointed with the court's ruling and [was] appealing the decision to the Fifth Circuit Court of Appeals."

Carter moved the district court to hold Southwest in contempt, arguing that these communications—the email and memo—violated the judgment. Carter contended that the email violated the judgment because it said that Southwest "does not discriminate" rather than "may not discriminate," which was the language the court's order required. As for the memo, Carter claimed that it demonstrated that Southwest could continue to discriminate against flight attendants' religious beliefs and practices. The district court agreed that Southwest had violated the notice requirement and therefore held Southwest in contempt. As contempt sanctions, the district court directed Southwest to circulate a statement—verbatim—to its flight attendants "to set the record straight" and ordered three of Southwest's in-house lawyers to attend religious-liberty training with the Alliance Defending Freedom {"a nonprofit, public-interest legal organization that provides litigation services, funding, and training to protect First Amendment freedoms and other fundamental rights"}.

[T]here is a strong likelihood that the contempt order exceeded the district court's civil contempt authority…. A court's civil contempt power "is not a broad reservoir of power, ready at an imperial hand"—instead, it is "a limited source; an implied power squeezed from the need to make the court function." 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." Whether a contempt order is civil or criminal turns on the "character and purpose" of the sanction involved.

Southwest argues that the district court abused its civil contempt power in requiring Southwest's in-house lawyers to attend "religious-liberty training, which neither secures compliance with an order nor compensates Carter for any noncompliance." Per Southwest, "the only permissible sanctions [after a civil-contempt finding] were requiring a new 'may not discriminate' email and awarding Carter contempt-related attorneys' fees, because those are the least-restrictive means of ensuring compliance with the judgment and compensating Carter."

We agree with Southwest that "religious-liberty training" will not compel compliance with the order nor compensate Carter. To start, "[c]ivil contempt differs from criminal contempt in that it seeks only to coerc[e] the defendant to do what a court had previously ordered [it] to do." Because the court did not previously order Southwest's lawyers to attend religious-liberty training, we are skeptical that it can do so in the civil contempt context.

Moreover, "the beneficiary of civil contempt is the individual litigant." But here, Carter receives no apparent benefit from the training requirement. The three attorneys ordered to attend training were not involved in the decision to terminate Carter and do not supervise Carter, and there was no evidence adduced at trial that they, personally, hold animus against Carter or her beliefs. Additionally, the training was not limited to Title VII training but rather encompassed all religious-liberty training, which could include topics like the First Amendment and the Religious Freedom Restoration Act that are irrelevant to securing compliance with a Title VII judgment. So, the mandatory training plainly is not the least restrictive means of remedying Southwest's non-compliance.

Carter argues that courts regularly require legal training "in the relevant subject area" to support her claim that "Title VII training" secures Southwest's compliance with the order. This is true, but such mandatory training is at least in part a punitive remedy and therefore not a civil contempt sanction….

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….

Southwest would likely suffer an irreparable harm [absent a stay] "in the form of a criminal [punishment] imposed without the necessary due-process protections." The training likely burdens their liberty interests too, as the injury of being forced into the training could not be undone. "It is the likely unconstitutional nature of the [punishment] that renders the harm it causes to [Southwest] irreparable."

Because of this, the Fifth Circuit concluded, the sanction should be stayed pending appeal, though the logic of the analysis suggests that the sanction likely won't be reinstated (at least unless on remand after appeal the District Court concludes the attorneys' actions constituted criminal contempt, and proceeds with a criminal contempt hearing, with all the procedural protections that this would require).

Thanks to Howard Bashman (How Appealing) for the pointer.