Should ‘Sensitivity Training’ Be Forced on Southwest Airlines?
In early August, afuror broke out among legal commentators when District Judge Brantley Starr in Texas ordered lawyers for Southwest Airlines to submit to training on the rights of religious believers conducted by the Alliance Defending Freedom (ADF), awell‐known and controversial right‐wing litigation group. The furor is well‐founded, but one may hope that its lessons extend beyond this case.
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The judge’s order came in the aftermath of ahigh‐ticket religious discrimination verdict. Southwest employee Charlene Carter had sent dozens of messages to her union president berating her for countenancing abortion through union support of the national Women’s March. Many of these messages were abusive, persistent, and uncivil to the point where Southwest interpreted them as harassment and fired Carter. She sued, claiming the company had not adequately accommodated her religious beliefs as required by federal and Texas law. (Southwest has argued that disapproval of abortion should be seen not as aspecies of religious belief, which employers are obliged to accommodate, but as aspecies of ethical and political belief, which neither Texas nor federal law treats as protected categories.) Ajury found in Carter’s favor, awarding her $5 million in damages, which Starr later reduced to about $800,000 to comply with limits on punitive awards.
As part of the verdict, the judge ordered Southwest to inform its staff that under federal law it “may not” discriminate against them for their religious practices and beliefs. Instead, the airline sent its staff amessage drafted by its lawyers saying that the airline “does not” discriminate on those grounds. Carter’s attorneys protested that this wording—substituting “does not” for “may not”—constituted willful noncompliance with the judge’s order and requested sanctions. The airline agreed to issue anotice with the revised wording and pay Carter’s new round of attorney’s fees, but the judge found that wasn’t enough, and ordered, as what he later called the “least restrictive means” of obtaining compliance, that the airline’s lawyers undergo what used to be called sensitivity training.
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A Texas judge ordered that the airline submit to training on the rights of religious believers after losing areligious discrimination lawsuit.
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And not just by any old trainer, either. “ADF is not an unbiased, educational institution — nor does it pretend to be,” writes legal journalist Chris Geidner, who helped break the story. It is alegal powerhouse in the world of social conservatism, regularly filing lawsuits aiming to limit abortion and the rights of gay people and appearing in 10 Supreme Court cases. The ADF apparently had not been involved previously in Carter’s case, though it has conducted trainings as part of the settlement of litigation it has pursued.
Washington Post columnist Ruth Marcus perhaps overstated matters when she wrote that Starr’s ruling was “straight out of ‘The Handmaid’s Tale’” and “tantamount to creating agovernment‐endorsed thought police.” But for the judge to order lawyers to submit to mandatory training by the ADF is just as improper as if he had ordered attendance at trainings conducted by, say, the left‐leaning Southern Poverty Law Center. Judges ought to take care that the remedies they order are free from any smack of ideological correction, whether conducted by “cause” groups or others.
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Which brings us to the question: Is this the first time an employer has been ordered to accept mandatory training by highly opinionated private instructors?
Not by along shot. American employers get ordered into compliance training on discrimination matters all the time. Sometimes it’s because they lose lawsuits, as Southwest did. At other times they accept the training as part of adeal to settle lawsuits. And by far the most common way training is required is through laws or regulations that provide that everyone in some legally defined class (supervisors, those who accept government contract work, etc.) submit to it. California, Connecticut, Illinois, and several other states require broad classes of employers to put either supervisors or all staff through training on harassment topics, often specifying subtopics that must be taught and who counts as astate‐qualified trainer.
In the litigation context especially, it’s not as if companies are necessarily left to their own choice of trainer. Thus acourt turned down one company’s request to have its own lawyers conduct compliance training following alawsuit, instead requiring that it be carried on either by the court’s appointed outside monitor or by another third party approved by the Equal Employment Opportunity Commission (EEOC), the plaintiff in the case. In adifferent settlement with the EEOC, acontainer company agreed “to retain an expert on sexual orientation, gender identity, and transgender training to assist in developing atraining program for [its] staff on LGBT workplace issues.” That sort of thing happens regularly with no special notice paid in the legal press.
It’s worth pausing to spell out more explicitly that in‐person compliance training can come in many flavors, ranging from painless and friendly to just‐the‐facts impartiality to interactive sessions presented by cause‐oriented trainers who bring strong ideological commitments. Not surprisingly, many employers in search of anonpolarizing, noninflammatory workplace experience prefer the friendly or neutral sort of training, perhaps delivered by the company’s own law firm or by an H.R. consultancy skilled at conveying compliance essentials in away that does not come across as accusatory or crusading.
On apractical level, however, it’s organizations with substantial means that are most likely to be able to afford seasoned trainers sensitive to such considerations. Asmaller company may feel budget pressure to go with training it can find at acut rate. And trainers who charge less may do so precisely because they are motivated to be in the field by strong views about it.
At least one judge in high places has voiced concern at the civil liberties implications of letting the state mandate lectures that might come across as seeking to change or undermine listeners’ opinions about aspects of the law they may not agree with, as distinct from simply making sure they know what counts as compliance. Supreme Court Justice Neil Gorsuch even used the word “re‐education” in arecent case to refer to the training that the state of Colorado ordered cakemaker Jack Phillips to provide to his staff in the famous Masterpiece Cakeshop case.
As it happens, one progressive commentator at Slate went into high dudgeon at what he saw as the “frightening implications” of Gorsuch’s brief remarks calling into question mandatory training like Colorado’s, which was, after all, merely one of “various tools to ensure compliance” with employment law. The commentator even seemed to suggest that Gorsuch must be purposely trying to undermine aneeded and wholesome legal remedy. (Slate does not seem to have published anything yet on the Southwest/ADF affair.)
Meanwhile, on the other side, one group that appears to be well aware of the coercive dangers involved is none other than the ADF. Its brief in Masterpiece Cakeshop v. Elenis (2019) likewise referred to Colorado’s training order as “reeducation.” Nevertheless, its chief counsel told areporter that the group would be “happy to help” in Starr’s order. Maybe there is some scenario in which it resolves to set aside its intense commitments and teach the legalities in asimple and impartial manner. But as one legal observer familiar with the ruling told me, “The judge did not choose ADF because of its presumed ability to deliver neutral training.”
As for Southwest, it has hired an experienced Supreme Court litigator and filed abrief requesting astay (which was successful) laying out apreview of the First Amendment arguments it expects to take to higher courts if needed. It also argues that the underlying jury verdict is likely to be overturned on appeal and that the order exceeds the court’s civil‐contempt powers, which are meant to secure aparty’s future compliance or compensate an opposing party for losses from noncompliance, neither motive being applicable here in its view.
Assuming the airline does not get the order nixed on one of these other legal grounds, or prevail on the plaintiff to drop matters, the dispute will be worth watching as one that could result in significant First Amendment precedent down the road.