A federal judge just told Southwest Airlines what it can’t look at on Facebook.
The court entered a permanent injunction barring Southwest from “proactively searching for, relying on, or using” Charlene Carter’s religious statements — including her posts about abortion — in any future discipline, discharge, or other adverse action.
Here’s the backstory. Southwest fired Carter after she sent her union president graphic anti-abortion images and video. She sued both Southwest and the union under Title VII for religious discrimination. In 2022, a jury awarded her $5 million (later reduced to $800,000), finding that employer and union discriminated and retaliated against her for her religious views. The 5th Circuit sent the trial court’s injunction back down as overbroad. This is the judge’s narrowed version.
Employers think that Title VII protects only their conduct, not their curiosity. It doesn’t work that way.
Employees generally have no 1st Amendment rights against a private employer policing their off-duty speech. I’ve written that sentence in posts more times than I can count. But Title VII doesn’t ask whether an employee had a free speech right. It asks whether a protected characteristic — here, religion — tainted the employer’s motive for taking action.
Seeking out Carter’s religious posts and then using them against her isn’t a speech violation. It’s evidence of discriminatory intent under Title VII. That’s the entire ballgame, and it’s why the injunction targets the searching and relying on, not just the disciplining.
Employers, here are your cues from this injunction:
1. Don’t go looking for an employee’s posts about religion, health information or disabilities, or any other protected characteristic to build a disciplinary file.
2. If a post lands in your lap unsolicited, document why you’re acting (or not acting) independent of the protected content.
3. A pattern of “we only checked her page” is Exhibit A in every failure-to-treat-similarly-situated-employees argument your plaintiff’s counsel will make. It will also make that much harder to argue to a judge or jury that you didn’t rely on the information that you found.
Employees don’t have 1st Amendment free speech rights to enforce against you. But you still need a legitimate, non-discriminatory reason for looking — and then for using what you find.
