Flight attendant Charlene Carter sued her employer and her union alleging, among other things, that they discriminated against her on the basis of religion, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). In July 2022, a jury awarded Ms. Carter $5.1 million. This sum appears to be consistent with the increase in “nuclear verdicts” (that is, jury awards that far exceed expected reasonable or rational amounts), a phenomenon that has raised serious questions and concerns in recent years. But that jury award is not at issue here. After all, in December 2022, the Court reduced it significantly to $810,000. Rather, at issue here is a Texas federal district court’s order imposing very specific “training” sanctions against three attorneys.
The “training” sanctions saga stems from the Court’s order that Ms. Carter’s employer, Southwest Airlines Co. (“Southwest”), notify flight attendants of Title VII’s prohibition against discrimination on the basis of religion. Southwest did issue a notification, which read: “the court ordered us to inform you that Southwest does not discriminate against our Employees for their religious practices and beliefs.” (Internal punctuation and emphasis omitted.) On August 7, 2023, the Court made its disapproval of the notification abundantly clear, writing:
It’s hard to see how Southwest could have violated the notice requirement more. Take these modified historical and movie anecdotes. After God told Adam, “[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. Or where Gandalf bellows, “You shall not pass,” the Balrog muses, “I do not pass,” while strolling past Gandalf on the Bridge of Khazad-dûm.
The Court held Southwest in civil contempt, and ordered it to pay Ms. Carter’s attorneys’ fees (in connection with her Motion for Contempt and Motion to Compel Proceedings), to issue a revised notice (verbatim from the Court’s Memorandum Opinion and Order Granting Sanctions in 2023 U.S. Dist. LEXIS 136623), and, as relevant here, to send three in-house attorneys to “religious-liberty training.”
But the Court’s order did not simply stop at “religious-liberty training.” Rather, it specifically provided that the “training” shall be provided by the Alliance Defending Freedom (an organization that describes itself as “the world’s largest legal organization committed to protecting religious freedom, free speech, the sanctity of life, marriage and family, and parental rights”), and Southwest must provide transportation, accommodation, food, or other travel expenses for the representative providing the “training.” The training shall also be entirely at the Alliance Defending Freedom’s discretion; the organization may choose both the representative and the time set for it.
Judge Brantley Starr’s highly specific “training” sanctions did not go unnoticed. Fix the Court, a judicial reform advocacy group, filed a complaint against Judge Starr with the Fifth Circuit Judicial Council. Several major news outlets reported on the case and on Judge Starr’s order that the “training” be conducted by an ideologically-affiliated organization. For its part, Southwest is currently appealing the order. Whether the Fifth Circuit will ultimately permit it to stand remains an open question.
While the Fifth Circuit’s decision is pending, California attorneys and employers may be wondering whether they, too, may face similar “training” sanctions. The short answer is: “training” sanctions, likely yes in certain circumstances; similar to those imposed in the Texas federal district court, likely not.
Federal Rule of Civil Procedure 11, subdivision (c)(1) (“Rule 11”) expressly provides for “appropriate sanctions” against attorneys and litigants alike, stating in relevant part: “the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.” Further, as noted in Carter, at least one California district court has already imposed training sanctions in the past, citing to Rule 11, 28 U.S.C. section 1927, and the inherent powers of the courts. (See Moser v. Bret Harte Union High Sch. Dist. (E.D.Cal. 2005) 366 F.Supp.2d 944.) However, as in Moser, such sanctions will more likely than not entail training provided by State Bar of California-approved programs (among which attorneys and/or litigants may choose) rather than training provided by ideologically-affiliated organizations.
To reduce the risk of incurring “training” or any other types of sanctions, California employers are encouraged to consult with experienced legal counsel in connection with complex legal questions, in particular as they pertain to Title VII’s or the Fair Employment and Housing Act’s prohibitions against discrimination, harassment, and retaliation.