[ad_1]
Alliance Defending Freedom, best known for helping bigoted website designers and ginning up law school free speech “controversies,” can now add “corporate anti-discrimination training” to its portfolio because this is the bizarro world.
Under a contempt order issued yesterday, Southwest Airlines must pay for anti-LGBTQ advocacy group to deliver “religious freedom” training to the company’s in-house lawyers. Most judges wouldn’t ask SPLC-designated hate groups to teach Fortune 500 companies about discrimination, but most judges aren’t Judge Brantley Starr of the Northern District of Texas.
If that name sounds familiar, it’s because this is Ken Starr’s nephew. Nepobabies: Legal Edition!
Judge Starr opens the opinion summing up the case, noting that Southwest “fired flight attendant Charlene Carter for sending social-media messages about abortion.” This shortchanges the facts just a smidge. In reality, Charlene objected to her union dues being used to participate in the 2017 Women’s March. That led to her issuing a bunch of posts like “BEYOND SICKENED to know that 20 plus years of [her] Union Dues helped in supporting” and covering up child sex trafficking. And asserting that her union dues “helped in Harvesting Baby Parts / Organs, and Sexual Abuse!,” and were “sent to Planned Parenthood to help this Evil.”
So a little more than “social-media messages about abortion.”
Southwest ended up firing her citing its civility policies. Carter won her discrimination case and Judge Starr ordered Southwest to inform its employees that it won’t discriminate against people like Carter anymore. Which it did, but Judge Starr wasn’t satisfied for… reasons.
Specifically, the 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.” Instead, Southwest’s notice said, “[t]he court [] ordered us to inform you that Southwest does not discriminate against our Employees for their religious practices and beliefs.” Southwest’s notice failed to mention Title VII, that the federal law known as Title VII contains a prohibition, and that that prohibition forbids Southwest from discriminating against flight attendants for their religious beliefs. Instead, Southwest’s notice communicated that there’s nothing to see here—aside from the Court’s bequeathing Southwest a badge of honor for not discriminating (which the Court did not do).
How is it a “badge of honor” to say “the court ordered us” to say something? Courts generally don’t order parties to pat themselves on the back. Though wouldn’t it be nice if they would? This faux distinction also blunders the whole meaning of an order because, assuming Southwest complied with the order, it “does not” do that anymore. At worst, the judge can complain that the lawyers didn’t lard up the notice with a bunch of legalese about Title VII that would have — ironically in this instance — made the notice less useful.
It’s hard to see how Southwest could have violated the notice requirement more.
No, it’s quite easy.
Take these modified historical and movie anecdotes. After God told Adam,
Nothing says the judge is taking the First Amendment seriously more than injecting Bible stories into federal opinions.
“[Y]ou must not eat from the tree [in the middle of the garden],” imagine Adam telling God, “I do not eat from the tree in the middle of the garden”—while an apple core rests at his feet.
That’s entirely inapposite. It’s more like saying after God told Adam, “[Y]ou must not eat from the tree,” Adam told Eve, “God told us we do NOT eat from that tree.” Judge Starr’s analogy required God to also say “please tell Eve that you DID eat from that tree in the past” and Adam to not do that part.
He messed up his own contrived analogies. Do you know how hard that is to do?
He then rebranded the same bad analogy with a Lord of the Rings milieu to look… cool? It would only makes sense if Starr asked ChatGPT to “generate pop culture analogies for ignoring commands,” but Judge Starr is already on record grandstanding against AI in a shameless bid to newsjack the ChatGPT brief debacle and boost his personal profile.
Second, Southwest provides a revisionist interpretation, saying that “does not discriminate” actually “conveys that Southwest will not discriminate in the future.” That’s wrong. Does is a present-tense verb, so it doesn’t contain a future tense connotation as Southwest propounds.
This is asinine. The word “is” is also present tense but when a company says — as almost every company does — “X is an equal opportunity employer,” they mean that they do not today and will not tomorrow discriminate against folks.
Note that this guy considers himself a “textualist.”
Aside from the grammatical bumbling, Starr complains that Southwest also conveyed to employees that while it’s not going to discriminate against them for their beliefs, employees do need to continue to comply with its civility policies and not publicly accuse the company of batshit sex trafficking conspiracies. FOR INSTANCE!
The Court agrees that Southwest has the right to speak. But Southwest has long harbored the view—during trial, after the verdict, and (as evinced by its memo to flight attendants) even after the judgment—that its policies on civility trump federal laws like Title VII. And if Southwest continues to represent to its flight attendants that it may discriminate against them if they violate Southwest’s civility policies, Southwest will likely find itself (yet again) on the wrong side of the Court’s order. Southwest needs to understand, when communicating with its employees, that federal protections for religious freedom override any company civility policy.
Title VII protects employees from discrimination, it does not provide a blank check to articulate their beliefs in any way they might want. There’s some slippage between “I’m pro life” and “sickened that my union uses my dues to fund sexual abuse.” Companies can use civility codes as a back door to discrimination, but Starr’s opinion doesn’t even contemplate the idea that someone can express a religious opinion in an inappropriate manner.
You know… like how ADF supporters argue that free speech rights can’t extend to protesting outside their events. Funny how they grasp that these rights are not immune to time, place, and manner restrictions when they’re making up unreasonable ones.
Earlier: If You Aren’t The One Writing Your Briefs In Texas, It Better Be Some Other Human!
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
[ad_2]
