Nearly a dozen years ago, I wrote a lengthy post on the meanings of "shall" and "will". In that post, I noted that "shall" is sometimes used, particularly in Bylaws, to mean "may". I did not consider whether "may" could mean "does".
U.S. District Court Judge Brantley Starr plainly believes that "may" and "does" are not equivalent terms:
Carter v. Transport Workers Union of America, Local 556., 2023 WL 5021787, at *1 (N.D. Tex. Aug. 7, 2023) (footnotes omitted, emphasis in the original). Highlighting the difference between "may" and "does", Judge Starr wrote:
Id. at *5.
As Judge Starr observed, "words mean something" and he was sufficiently unhappy with Southwest's wordsmithing to hold the airline in contempt and order three of its in-house attorneys to attend religious-liberty training consisting of at least eight hours of instructional time. He also ordered Southwest to e-mail a corrective statement to each of its flight attendants.
Companies adopting codes of conduct may want to take Judge Starr's ruling into account. For example, plaintiffs' attorneys may [mis]interpret a statement that a company's employees "do not" engage in improper activities as an affirmation of fact. However, codes of conduct are not intended to be descriptions of existing conduct. Rather, they are intended to promote future conduct. Therefore, "may not" may prove to be better diction.
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