The Fifth Circuit on Monday seemed torn over whether it should “split hairs” between religious conduct and religious belief as it weighed whether to uphold a Southwest flight attendant’s win in a wrongful termination suit over graphic anti-abortion messages she sent her union president.
Shay Dvoretzky of Skadden Arps Slate Meagher & Flom LLP, counsel for Southwest Airlines Co., told the Fifth Circuit that Charlene Carter’s firing in 2017 stemmed from the practice of sending graphic messages to her union president, not the religious beliefs underlying those messages. The jury was therefore only required to answer whether Southwest’s accommodations of that practice “would cause Southwest undue hardship,” he argued.
“The distinction is critical,” Dvoretzky told the court. “As a matter of common sense, belief is what’s in your head. It’s what you think. Practice is what those thoughts or feelings lead you to do. It’s your conduct. If every practice-based claim could simply be reasserted as a belief-based claim, then undue hardship could never be a defense.”
