Belief vs. Practice: Fifth Circuit Clarifies Title VII Religion Doctrine, Affirms Groff Without Retrial, and Vacates “Obey‑the‑Law” Injunctions in Carter v. Southwest

Introduction

In a sweeping opinion with ramifications for religious-accommodation litigation, union liability under Title VII, the scope of Railway Labor Act remedies, and the permissible bounds of injunctive and contempt powers, the Fifth Circuit granted panel rehearing, withdrew a prior opinion, and issued this substituted decision in Charlene Carter v. Southwest Airlines Company and Local 556, Transport Workers Union of America. The court:

• Formalized a doctrinal distinction between belief-based and practice-based religious claims under Title VII, explaining how the undue-hardship defense applies only to the latter.
• Applied the Supreme Court’s post-trial decision in Groff v. DeJoy (2023) but declined to order a new trial, concluding that fairness does not require a retrial when intervening law raises the losing party’s burden.
• Clarified that unions are liable under Title VII for “causing or attempting to cause” employer discrimination, and that a union’s undue-hardship defense must be timely pleaded.
• Cabined private suits under the Railway Labor Act’s § 152 Third and Fourth in post-certification settings to cases involving anti-union animus or actions undermining union functioning, while affirming a separate fair-representation verdict against the union.
• Vacated a broad “obey-the-law” injunction as vague and overbroad under Rule 65(d), and affirmed a contempt finding but vacated a punitive sanction ordering “religious-liberty training,” instructing that civil contempt sanctions must be remedial and narrowly tailored.

The case arises from Southwest’s discharge of a flight attendant who sent the union president graphic anti-abortion messages and posted similar content publicly on Facebook. After an arbitrator found just cause for termination under company policies, a jury returned a verdict for Carter on multiple Title VII and RLA theories, and the district court issued broad injunctive relief and later held Southwest in contempt for noncompliant notice.

Summary of the Opinion

• Title VII against Southwest:
  • Belief-based intentional discrimination: Reversed for insufficient evidence; judgment as a matter of law for Southwest.
  • Practice-based claims (intentional discrimination and failure-to-accommodate): Affirmed. The pre-Groff “de minimis” instruction was not reversible error, and Groff’s later, more stringent standard did not warrant a new trial.
• Title VII against the Union:
  • Affirmed on all claims, including liability for “causing or attempting to cause” discrimination and joint-and-several backpay. The Union’s undue-hardship defense was forfeited by not timely pleading it, and its sufficiency challenges were unpreserved without a Rule 50(b) motion.
• RLA:
  • Interference claim against Southwest: Affirmed dismissal; no showing of anti-union animus or a breakdown of RLA dispute mechanisms.
  • Retaliation claim against Southwest: Reversed; no private action under § 152 Third/Fourth in a post-certification dispute absent anti-union animus (or undermining union functioning).
  • Duty of fair representation (DFR) against the Union: Affirmed; whether Carter’s messages were “protected activity” was irrelevant to arbitrary, discriminatory, or bad-faith conduct by the Union in reporting her.
• Remedies and post-judgment orders:
  • Permanent injunction: Vacated in full as vague and overbroad; remanded.
  • Contempt: Affirmed the finding that Southwest’s notice violated the order; vacated the punitive training sanction and remanded for a remedial, least-restrictive sanction.
  • Appellate attorneys’ fees: Remanded to the district court for determination and award to Carter on the successful Title VII claims.

Case Background

Key Facts

• Charlene Carter, a pro-life Christian and union objector, criticized the Union’s participation in the 2017 Women’s March. She sent the Union president multiple messages, including graphic images and videos of aborted fetuses, and posted similar content publicly.
• The Union president reported the conduct to Southwest as harassment and bullying under company policies. Southwest investigated, found policy violations, and terminated Carter.
• An arbitrator upheld discharge for violations of Southwest’s Social Media Policy, Workplace Bullying and Hazing Policy, and Harassment Policy. Southwest did not attempt a religious accommodation.

Procedural History

• Carter sued Southwest and the Union alleging Title VII religious discrimination and RLA violations, including retaliation and interference claims and a DFR claim against the Union.
• A jury found for Carter on multiple claims. The district court awarded reinstatement, backpay, and broad injunctive relief requiring notices and future compliance. It later held Southwest in contempt for noncompliant notice language and ordered a verbatim corrective notice and “religious-liberty training” for Southwest’s in-house counsel.
• On panel rehearing, the court withdrew its prior opinion and issued this substituted decision, addressing legal errors and the intervening Groff standard.

Detailed Analysis

I. Title VII: A formalized belief vs. practice framework

The court carefully parsed Title VII’s definition of religion, which encompasses “all aspects of religious observance and practice, as well as belief,” but allows employers to resist accommodating observance or practice if doing so would cause “undue hardship.” 42 U.S.C. § 2000e(j).

From the statutory text and Fifth Circuit precedent, the court distilled three distinct Title VII “religion” routes to liability:

• Belief-based intentional discrimination. The employer targets the employee’s religious beliefs. The undue-hardship defense does not apply.
• Practice-based intentional discrimination. The employer targets religious conduct/observance. Subject to undue-hardship defense.
• Failure-to-accommodate a religious practice. Subject to undue-hardship defense.

The court emphasized that conflating belief and practice would “read out” the undue-hardship defense. It used Tagore (Sikh kirpan) to show why a plaintiff cannot convert a practice case into a belief case to bypass undue hardship.

Application to Southwest

• Belief-based claim reversed. Carter did not present direct or sufficient circumstantial evidence that Southwest acted because she is a pro-life Christian, as opposed to acting on her conduct (the content and manner of her messages). Evidence that decisionmakers themselves held pro-life Christian beliefs undermined a belief-targeting narrative.
• Practice-based claims affirmed. The jury could find Southwest took adverse action because Carter’s religiously motivated expressions (messaging/posting) conflicted with policies and were not reasonably accommodated.

Jury instructions and the intervening Groff standard

At trial, the court instructed “undue hardship” as “more than de minimis cost,” consistent with pre-Groff Fifth Circuit law (Weber/Hardison). Southwest argued the court should have expressly allowed jurors to consider coworker morale apart from “costs” to the business. The Fifth Circuit held the instruction adequately permitted consideration of coworker impacts insofar as they translate into business disruption or costs, which the airline argued at trial.

After trial, the Supreme Court in Groff clarified that “de minimis” is too lenient: the employer must show “substantial increased costs in relation to the conduct of its particular business,” and coworker impacts matter only if they materially burden the business, not when they reflect religious bias or mere dislike of accommodation. Although Groff raised the employer’s burden, the Fifth Circuit declined to order a new trial. Citing fairness principles, it reasoned that a losing party whose burden has since increased is not generally entitled to a retrial, especially where the need for “costs/business impact” evidence was obvious and the employer already presented its case on those points. The court refused to give Southwest a “mulligan” when the law moved against it after verdict.

II. Title VII union liability: “Attempting to cause” discrimination, undue hardship, and preservation

• “Attempt to cause” is actionable. Section 2000e-2(c)(3) explicitly prohibits a labor organization from causing or attempting to cause an employer to discriminate. The jury instruction allowing liability for an “attempt to cause” adverse action was correct, contrary to the Union’s argument that an actual adverse action is required.
• Backpay against the Union. The district court did not abuse its discretion in holding the Union jointly and severally liable for backpay. Title VII authorizes backpay from the “labor organization” responsible for the unlawful practice.
• Undue hardship defense forfeited. Although unions may assert an undue-hardship defense to a practice-based claim, the Union failed to plead that affirmative defense and offered no explanation for moving to add it mid-trial. Denial of the late amendment was within the court’s discretion due to undue delay and prejudice.
• Rule 50(b) preservation. The Union did not file a renewed JMOL after trial; under Dupree v. Younger and Ortiz v. Jordan, it could not raise sufficiency-of-the-evidence challenges on appeal by piggybacking on Southwest’s Rule 50(b) or by recasting evidentiary points as “pure law.”

III. RLA: Narrow private rights post-certification; DFR stands apart

The court re-centered the limited judicial role under the RLA. Section 152 Third and Fourth primarily protect precertification organizing, and post-certification disputes are presumptively channeled to the Act’s dispute-resolution mechanisms. Federal courts may intervene post-certification only when:

• Carrier actions reflect anti-union animus aimed at weakening or destroying the union; or
• Carrier actions undermine the union’s functioning, or RLA dispute processes are unavailable or ineffective.

Carter’s post-certification claims against Southwest did not meet these thresholds. She neither alleged nor proved anti-union animus by Southwest, nor a breakdown in RLA mechanisms, and she could have pursued her union-related contentions in arbitration. Accordingly:

• Interference claim: dismissal affirmed.
• Retaliation claim: reversed; no implied cause of action in these circumstances without anti-union animus.

By contrast, the DFR claim against the Union is an established implied action. The jury found the Union acted arbitrarily by reporting Carter to Southwest in bad faith or with hostility toward her anti-union stance. The Union’s contention that Carter’s conduct was not “protected activity” under the RLA did not undercut the DFR verdict because the DFR inquiry turns on the Union’s arbitrariness, discrimination, or bad faith—not on whether the employee’s underlying conduct is statutorily protected organizing.

IV. Remedies: Rule 65 specificity and civil contempt boundaries

Permanent injunction vacated for vagueness and overbreadth

The district court enjoined Southwest and the Union broadly from “discriminating” and “failing to accommodate” and required compliance with Title VII and RLA obligations for all Southwest flight attendants. The Fifth Circuit vacated the injunction because:

• Vagueness (Rule 65(d)(1)): Parties must have “explicit notice of precisely what conduct is outlawed.” “Obey-the-law” injunctions are improper; the order lacked specific, actionable directives, particularly as to the Union.
• Overbreadth: Remedies must be narrowly tailored to the plaintiff’s injury. Extending relief to all flight attendants—non-parties—without tailoring to Carter’s circumstances exceeded the legal basis for the lawsuit and the judicial role.

Contempt: liability affirmed; punitive sanction vacated

The court affirmed the contempt finding: Southwest’s notice said it “does not discriminate” rather than that it “may not discriminate,” failing to convey the court-ordered message that Southwest is legally prohibited from doing so, particularly after a jury found it had discriminated.

But it vacated the sanction requiring “religious-liberty training” by a third party for Southwest’s in-house attorneys. Civil contempt sanctions must be remedial—coercing compliance or compensating the movant—not punitive. Training those attorneys neither coerced compliance with the notice requirement nor compensated Carter; it was not the least restrictive measure. The court directed the district court on remand to craft a narrow, remedial sanction (for example, compliant notice and attorney’s fees attributable to the contempt).

Precedents Cited and Their Roles

• Groff v. DeJoy (2023): Replaces the “de minimis” undue-hardship standard with “substantial increased costs,” clarifies coworker impacts are relevant only when they materially burden the employer’s operations and cannot be rooted in religious hostility.
• EEOC v. Abercrombie & Fitch (2015): Title VII favors accommodation; motive to avoid accommodation can be unlawful.
• Hebrew v. TDCJ (5th Cir. 2023): Distinguishes failure-to-accommodate and intentional discrimination; reinforces employers’ affirmative duty to accommodate religious practices.
• Tagore v. United States (5th Cir. 2013): Illustrates practice-based accommodation analysis (Sikh kirpan), used here to show why belief/practice must remain distinct.
• Hardison and progeny (Weber, Brener, Eversley, Howard, Bruff): Pre-Groff undue-hardship jurisprudence; the panel explains the shift under Groff.
• Dupree v. Younger (2023) and Ortiz v. Jordan (2011): Preservation rules—post-trial Rule 50(b) motion is required for sufficiency challenges; “purely legal” summary-judgment rulings proceed to appeal without 50(b).
• RLA: TWA v. IFFA (1989), Roscello v. Southwest (5th Cir. 1984), Bhd. of Locomotive Engineers cases, Wightman (1st Cir.), Dempsey (7th Cir.): Delineate limited judicial role and the necessity of anti-union animus or comparable breakdown to support post-certification § 152 Third/Fourth claims.
• Rule 65(d), Schmidt v. Lessard, Louisiana v. Biden, Payne v. Travenol, Scott v. Schedler, E.T. v. Paxton: Specificity and tailoring mandates for injunctions; “obey-the-law” orders are invalid.
• Bagwell, Gompers, American Airlines v. Allied Pilots, Abbott (Stukenberg): Civil vs. criminal contempt; sanctions must be remedial and least restrictive in civil contempt.

Complex Concepts Simplified

• Belief vs. practice under Title VII:
  • Belief-based: Employer punishes you for your religious beliefs themselves. No undue-hardship defense exists. Proof focuses on motive toward beliefs.
  • Practice-based: Employer punishes or refuses to accommodate what you do because of your religion (observance/conduct). Employer can defend by proving undue hardship.
• Undue hardship after Groff:
  • Standard: Accommodation would cause “substantial increased costs in relation to the conduct of [the] particular business.”
  • Coworkers: Their inconvenience/offense counts only if it materially burdens operations; hostility to religion never counts.
• “Attempt to cause” discrimination by a union:
  • Title VII expressly reaches unions that try to induce employer discrimination; success is not required for liability.
• RLA post-certification private claims:
  • Generally channeled to arbitration/mediation. A narrow court action exists only for anti-union animus or actions undermining union functioning or where RLA processes are ineffective.
• Duty of fair representation:
  • A union must avoid arbitrary, discriminatory, or bad-faith conduct toward all represented employees (members and non-members alike). Whether the employee’s conduct was “protected activity” is not the test for DFR; the union’s conduct is.
• Rule 65 injunctions:
  • Must be specific about prohibited/required acts and narrowly tailored to the plaintiff’s injury; “follow the law” is not a valid injunction.
• Civil vs. criminal contempt:
  • Civil contempt sanctions are remedial: they coerce future compliance or compensate for harm. Punishment for past defiance (without a coercive option) is criminal and requires criminal-process protections.

Impact and Practical Guidance

For employers

• Structure Title VII defenses by first identifying whether the claim is belief-based or practice-based. Only practice-based claims trigger the undue-hardship defense.
• Post-Groff, prepare to prove concrete, business-specific costs from accommodating religious practices. Mere coworker discomfort or generalized morale concerns rarely suffice unless linked to measurable operational burdens.
• Social media and workplace-civility policies remain enforceable but are not self-executing defenses; policies must be reconciled with reasonable accommodation obligations for religious expression.
• When a court orders corrective notice, comply precisely with the mandated wording. “Substantial compliance” will be scrutinized; semantic deviations can sustain contempt.

For unions

• Title VII exposure extends to “attempts to cause” employer discrimination. Communications with employers about discipline can trigger liability.
• Plead affirmative defenses—like undue hardship—timely. Attempting to add them mid-trial risks forfeiture.
• DFR risk can arise from reporting members or represented employees to management where arbitrariness, discrimination, or bad faith can be inferred.

For employees and counsel

• Plead Title VII religious claims with precision: separate belief-based from practice-based theories; build evidence tailored to the theory’s elements (motive vs. accommodation).
• In post-certification RLA disputes, anticipate jurisdictional limits; unless anti-union animus or comparable breakdown is present, expect to channel disputes through RLA grievance/arbitration procedures.
• Preserve appellate issues (e.g., Rule 50(b) for sufficiency challenges). Failure to do so will foreclose appellate review, even on strong merits arguments.

For district courts

• Groff applies prospectively; it does not automatically require retrials where juries were instructed under “de minimis,” particularly if that change raises the losing party’s burden.
• Draft injunctions with the specificity and narrow tailoring Rule 65(d) requires; avoid “obey-the-law” formulations.
• In civil contempt, choose least-restrictive, remedial sanctions aimed at coercing compliance or compensating harm; avoid punitive or symbolic measures.

Notable Strategic Signals

• Issue preclusion from labor arbitration: The panel flagged that prior arbitration “arguably” precluded elements of Carter’s claims, but the defense was forfeited on appeal. Future litigants should preserve arbitral preclusion at all stages.
• Evidence framing post-Groff: Employers should document concrete operational costs; testimony about coworker offense, absent business impact, is insufficient.
• Union official capacity: The jury’s unchallenged finding that the union president acted in an official capacity underscores the importance of role clarity in union communications that touch discipline.

Conclusion

Carter v. Southwest delivers several durable guideposts:

• Title VII religion doctrine is not monolithic: belief-based and practice-based claims are distinct, and only practice-based claims implicate “undue hardship”—now defined by Groff’s substantial-costs standard.
• Intervening precedent that raises a losing party’s burden does not entitle that party to a new trial, particularly where the evidentiary need was obvious.
• Unions face Title VII liability for “attempts to cause” discrimination and must timely assert any undue-hardship defense; DFR liability can arise from retaliatory or bad-faith reporting to management.
• Post-certification RLA suits are narrowly available; absent anti-union animus or similar breakdowns, RLA claims belong in the Act’s dispute-resolution channels.
• Rule 65(d)’s specificity and tailoring are nonnegotiable; broad “obey-the-law” injunctions and punitive civil-contempt sanctions will not stand.

The opinion’s careful parsing of Title VII’s text, pragmatic handling of Groff’s retroactive effect, and stringent enforcement of remedial and procedural guardrails will shape religious-accommodation litigation, union liability, and remedial practice across the Fifth Circuit and beyond.