Fifth Circuit, on Rehearing, Holds Belief-Based Title VII Claims Are Distinct From Practice-Based Claims

The decision

On October 15, 2025, a panel of the U.S. Court of Appeals for the Fifth Circuit granted panel rehearing in consolidated appeals arising from former Southwest Airlines flight attendant Charlene Carter’s suit against the airline and her union, withdrew its prior opinion, Carter v. Local 556, Transport Workers Union, 138 F.4th 164 (5th Cir. 2025), and substituted a new opinion. The petition for rehearing en banc was denied.

The court held that Title VII religious-discrimination claims based on an employee’s beliefs must be analyzed separately from claims based on religious observance or practice, and that the statute’s undue-hardship defense applies only to the latter. It reversed the judgment against Southwest on Carter’s belief-based claim and directed entry of judgment for the airline, but affirmed the judgment against Southwest on her practice-based claims and the judgment against Transport Workers Union of America, Local 556 on all claims. The court also held that Carter had no cause of action against Southwest under the Railway Labor Act, vacated the district court’s permanent injunction, affirmed the order holding Southwest in contempt, and vacated the contempt sanction.

Background

According to the opinion, Carter began working as a Southwest flight attendant in 1996. The Union was her exclusive bargaining representative; she had resigned her membership and was a “nonmember objector” who paid Union fees. The opinion describes her as a pro-life Christian and an opponent of organized labor who, from 2015, opposed the Union’s leadership and supported a recall effort against its then-president.

In January 2017, Union members attended a committee meeting in Washington, D.C., and some attended the Women’s March, which the Union publicized on its website and Facebook page. On February 14, 2017, Carter sent the Union president a series of private Facebook messages, including a video and an image of aborted fetuses, a photo of women in costumes depicting female genitalia, and messages about the recall, union dues, and her religious beliefs. She posted similar content on her public Facebook page. The president reported the messages to her manager, and Southwest investigated. On March 14, 2017, Southwest terminated Carter, citing its mission statement and its workplace bullying and social media policies. An arbitrator later found that Southwest had just cause, concluding that Carter violated three company policies. The opinion states that Southwest never attempted to accommodate Carter’s religious observances, practices or expression.

Carter sued Southwest and the Union in the Northern District of Texas, alleging religious discrimination under Title VII, retaliation and interference under the RLA, and breach of the Union’s duty of fair representation. A jury found for Carter on the Title VII, RLA retaliation and fair-representation claims and found that Southwest had not proved undue hardship. The district court ordered reinstatement and backpay, for which it held Southwest and the Union jointly and severally liable, enjoined both from discriminating against or failing to accommodate Southwest flight attendants’ religious beliefs and practices, and ordered Southwest to notify flight attendants of their rights. After Southwest’s notice stated that the airline “does not discriminate” rather than “may not discriminate,” the district court held it in contempt and ordered a corrective statement and religious-liberty training for three of its in-house lawyers.

The court’s reasoning

Belief and practice under Title VII

Judge Edith Brown Clement’s opinion began with Title VII’s definition of “religion,” which excludes any observance or practice an employer cannot reasonably accommodate without undue hardship. The court wrote: “As a result, reasonable accommodation and undue hardship are only relevant for claims based on observance or practice. No undue hardship defense exists for discriminating against an employee’s beliefs.” It identified “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 court rejected Carter’s argument that she needed only to show that some aspect of her religion was a factor in her firing, reasoning that consolidating belief and practice claims would read the undue-hardship defense out of the statute, as illustrated by the sword-carrying employee in Tagore v. United States.

The belief-based claim against Southwest

The court held that the evidence was legally insufficient to support the jury’s finding that Southwest intentionally discriminated against Carter’s beliefs. It stated: “But Carter fails to point to direct evidence that her pro-life, Christian beliefs were a motivating factor in her termination.” The court noted evidence that many Southwest employees, including a manager involved in the investigation, held the same beliefs, and said Carter’s evidence spoke to actions taken in furtherance of her beliefs rather than to hostility toward them. It also found that Carter had not established a valid comparator in a Southwest employee who posted about the Women’s March, because she did not show that the employee held the same job, shared the same supervisor, or had a similar disciplinary history. The court declined to decide whether Carter had forfeited reliance on indirect evidence.

Practice-based claims and undue hardship

The court held that the district court’s instruction that “[a]n undue hardship means more than a de minimis cost on the conduct of the employer’s business either in terms of financial costs or disruption of the business” substantially captured Fifth Circuit law at the time of trial and was not reversible error, because it allowed the jury to consider burdens on coworkers insofar as they burdened Southwest’s business. The court then declined to order a new trial under the Supreme Court’s intervening decision in Groff v. DeJoy, which raised the undue-hardship standard. It wrote: “This court’s precedent does not compel, and equity does not support, granting a new trial to a losing party when intervening caselaw raises the burden on the losing party seeking retrial.” It affirmed the judgment against Southwest on the practice-based claims.

The claims against the Union

The court held that the Union had not preserved its challenge to the sufficiency of the evidence on the belief-based claims because it filed no post-trial motion under Rule 50(b): “Ultimately, the Union failed to preserve its sufficiency-of-the-evidence argument for our review.” It upheld an instruction that a union may violate Title VII by attempting to cause an employee’s discharge, relying on the text of 42 U.S.C. § 2000e-2(c)(3); found no abuse of discretion in holding the Union jointly and severally liable for backpay; and found no abuse of discretion in the denial of the Union’s mid-trial request to add an undue-hardship defense, citing an unexplained five-year delay. On the duty-of-fair-representation claim, the court held that whether Carter’s messages were protected activity did not bear on whether the president’s report to Southwest was arbitrary, discriminatory, or in bad faith, so any instructional error did not prejudice the Union.

The Railway Labor Act claims

The court held that the RLA does not give Carter a cause of action against Southwest for retaliation or interference. Describing the federal courts’ role under the statute as historically limited, it wrote: “Our circuit has not recognized a standalone private right of action against an employer under 45 U.S.C. § 152, Third and Fourth without a showing of anti-union animus.” Carter, it said, had not shown that Southwest undermined the Union’s functioning or that the RLA’s dispute-resolution framework was unavailable, and she could have argued in arbitration that she was fired for opposing union leadership. The court stated that the district court had “erroneously analyzed” the post-certification conflict as a major dispute but did not decide whether it was a minor one. It affirmed the dismissal of the interference claim and reversed the denial of Southwest’s motion for judgment as a matter of law on the retaliation claim.

The permanent injunction

The court held that the injunction was both vague and overbroad. It stated that injunctions that tell a party to “obey the law” are improper and that the Union had little way of knowing what the order required of it. On breadth, it wrote: “The injunction covers non-parties by extending to all Southwest flight attendants without targeting the conduct that gave rise to Carter’s claims in the first place.” It vacated the injunction in full.

Contempt

The court found no abuse of discretion in the contempt finding. It wrote: “Informing employees that their employer does not discriminate is indeed different from informing employees their employer is legally prohibited from discriminating again.” The court characterized Southwest’s wording as a bad-faith semantic attempt to avoid responsibility that did not amount to substantial compliance. It held, however, that the sanction was punitive rather than remedial: the lawyers ordered to attend training were not involved in the termination decision, and the training was not limited to Title VII. “Punitive sanctions exceed the scope of a federal court’s civil contempt authority.”

Separate opinions

None.

Status

The court remanded with instructions to enter judgment for Southwest on the belief-based Title VII claim and the RLA retaliation claim, for further proceedings on the vacated injunction, and for the district court to issue a new contempt sanction that is remedial and the least restrictive means of achieving substantial compliance. It also granted Carter’s motion to remand the question of appellate attorney’s fees under Title VII. The judgment against Southwest on the practice-based claims and against the Union on all claims stands. Bloomberg Law reported on the substituted opinion.