Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RELIGIOUS—5th Cir.: Southwest Airlines did not intentionally discriminate against pro-life flight attendant, (May 9, 2025)

By Ronald Miller, J.D.

The employee failed to point to direct evidence that her pro-life, Christian beliefs were a motivating factor in her termination.

Southwest Airlines, which fired a flight attendant after she sent graphic images of aborted fetuses to a union president, should have been granted its motion or judgment as a matter of law against her Title VII religious discrimination claim, ruled the Fifth Circuit. Here, the employee failed to point to direct evidence that her pro-life, Christian beliefs were a motivating factor in her termination. Further, the employee failed to show that any individual “was treated more favorably under nearly identical circumstances.” Because there was not a legally sufficient evidentiary basis to find for the employee on her belief-based intentional-discrimination claim, the appeals court reversed the district court’s denial of Southwest’s motion for judgment as a matter of law (Carter v. Local 556, Transport Workers Union of America, Nos. 23-10008, 23-10536, and 23-10836 (5th Cir. May 8, 2025)).

The employee in this dispute worked for Southwest Airlines as a flight attendant beginning in 1996. Her working conditions were governed by a collective bargaining agreement between the employer and a union. The employee regarded herself as a pro-life Christian, who believes abortion is a taking of human life contrary to the teachings of the Bible, and a staunch opponent of organized labor. She was considered a “nonmember objector” with an obligation to pay union fees.

Anti-union speech. The employee has been engaged in anti-union speech since 2013. Starting in 2015, through her termination in 2017, she vocally opposed the union’s leadership.

After members of the union participated in the Women’s March on Washington, the employee was outraged by what she viewed as union-sponsored support for abortion, and on February 14, 2017, she sent the union president a series of private Facebook messages about the march. The messages included graphic images of aborted fetuses. She also expressed her religious beliefs opposing the union’s involvement with the march, voicing her support for the recall of union officers, and detailing her support for President Trump.

In addition to sending the private messages to the union president, the employee posted similar content to her public Facebook page.

Harassment complaint. The union president reported the messages to her manager and asserted that they constituted a violation of the airlines’ Harassment policy, Workplace Bullying policy, and Hazing policy. Southwest investigated the allegations and subsequently terminated the employee’s employment.

Thereafter, the employee filed a grievance challenging her termination. After a hearing, Southwest offered to reinstate the employee and reduce her termination to a 30-day suspension if she agreed to sign a last-chance agreement that—among other thingsrequired her to comply with the company’s policies and sign a confidential settlement agreement. The employee declined the offer, and the dispute proceeded to arbitration.

Arbitration award. The arbitrator concluded it was “clear beyond a reasonable doubt that [Southwest] had just cause to terminate [her]” because she violated Southwest’s Social Media Policy, Workplace Bullying and Hazing Policy, and Harassment Policy, and that each of those policy violations was “an independently sufficient basis for termination.” At no point, however, did Southwest attempt to accommodate the employee’s desired religious observances, practices, or expression in furtherance of her beliefs.

Title VII claim. The employee sued Southwest and the union alleging (1) Southwest and the union violated Title VII by “discriminating against [her] religious beliefs and practices,” (2) Southwest and the union “retaliated against [her] for the exercise of her protected rights under the RLA,” and (3) the union breached its duty of fair representation under the RLA. Southwest and the union moved to dismiss the suit.

The district court dismissed the employee’s claim of interference against Southwest under the RLA, and the retaliation claim against Southwest to the extent it was based on the exercise of her First and Fifth Amendment rights. It also dismissed the employee’s breach of duty of fair representation claim against the union, dismissed her retaliation claim against the union based on constitutional violations, but allowed her Title VII claim against the union to proceed.

Following discovery, the parties all moved for summary judgment. With respect to the employee’s Title VII claims, the court found there was a genuine dispute regarding the reason why Southwest fired her and why the union president reported her to Southwest. Regarding the employee’s RLA retaliation claims, the district court held (1) she had a cause of action, (2) the court had jurisdiction to resolve the claims, and (3) there was a genuine dispute as to whether the employee had been retaliated against. Summary judgment was also denied on the fair-representation claim against the union, after the district court found there was a genuine dispute as to whether the union president acted in her official union capacity when she reported the employee to Southwest.

Jury trial. The case proceeded to a jury trial. At the end of the employee’s case-in-chief, the union and Southwest moved for judgment as a matter of law, which the district court denied. Thereafter, the jury ruled in the employee’s favor, finding that: (1) Southwest discriminated against the employee by discharging her due to her religious practices; (2) the union treated her less favorably than other employees due to her religious practices; (3) the union and Southwest unlawfully failed to accommodate her religious practices; (4) Southwest failed to prove granting a religious accommodation would have imposed an undue hardship; (5) the union and Southwest retaliated against the employee for engaging in activity protected by the RLA; (6) the union violated its duty of fair representation; and (7) the union discriminated against the employee by causing her discharge due to her religious practices.

Southwest renewed its motion for judgment as a matter of law and moved, alternatively, for a new trial. The district court denied the motion.

Contempt. To comply with the judgment, Southwest reinstated the employee, posted the verdict and judgment in all flight-attendant breakrooms, and emailed all flight attendants the verdict and judgment, with commentary. The employee subsequently moved the district court to hold Southwest in civil contempt. As a contempt sanction, the district court directed Southwest to circulate a statement and ordered three of Southwest’s in-house lawyers to attend religious-liberty training. The parties appealed various aspects of the case.

Religious discrimination claims. A plaintiff has two paths to show a claim of religious discrimination under Title VII, specifically by showing that an employer or labor organization actively discriminated against the employee based on the employee’s religion or failed to accommodate the employee’s religious “observance or practice” where such accommodation would not cause undue hardship. A plaintiff need only show her “religious practice” was a “motivating factor” in the employer’s decision.

Reasonable accommodation and undue hardship are only relevant for claims based on observance or practice.

Religious belief. The plain text of Title VII requires a court to analyze religious-practice and religious-belief claims separately. The only way to prove a belief-based violation is through the vessel of an intentional-discrimination claim. The question becomes whether the belief itself distinct from any action or practices taken in furtherance of that belieff actored into the employer’s decision.

Plaintiffs can show their employer discriminated against them through three types of claims within 42 U.S.C. § 2000e-2(a)(1): first, intentional-discrimination claims based on belief; second, intentional-discrimination claims based on practice; and third, failure-to-accommodate practice claims. The latter two are subject to the same undue hardship defense.

Here, the employee failed to point to direct evidence that her pro-life, Christian beliefs were a motivating factor in her termination. Rather, the evidence showed that many Southwest employees held pro-life, Christian beliefs. The evidence offered by the employee spoke more neatly to actions that she took in furtherance of her religious beliefs than to Southwest’s alleged hostility toward those beliefs.

Indirect evidence. To prove a Title VII claim by relying upon circumstantial support, the employee had to show, among other things, that she was treated less favorably than others similarly situated but outside of her protected class. While the employee put forth evidence that Southwest treated her differently than other employees who violated its social media policy, those individuals did not send any direct messages to coworkers, or post communications that were hostile in nature. Therefore, the employee failed to show that any individual “was treated more favorably under nearly identical circumstances.”

Remaining issues. With regard to other issues in the dispute, the appeals court affirmed the district court’s judgment on the employee’s practice-based Title VII claims against Southwest and affirmed the judgment against the union on all claims. On the other hand, the appeals court affirmed the dismissal of the employee’s RLA retaliation claim and reversed the denial of Southwest’s motion for judgment as a matter of law on the employee’s retaliation claim. Further, the appeals court vacated the district court’s contempt order against Southwest.

The cases are Nos. 23-10008, 23-10536, and 23-10836.

Judge: Clement, E.

Attorneys: Matthew Brandon Gilliam (National Right to Work Legal Defense Foundation) for Charlene Carter. Adam S. Greenfield (Cloutman & Greenfield) for Local 556, Transport Workers Union of America. Shay Dvoretzky (Skadden, Arps, Slate, Meagher & Flom) for Southwest Airlines Co.

Companies: Local 556, Transport Workers Union of America; Southwest Airlines Co.

MainStory: TopStory Discrimination ReligiousDiscrimination Retaliation Discharge IndividualRights Labor UnionsMembers LouisianaNews MississippiNews TexasNews GCNNews