Anti-abortion group is able to challenge law that makes it illegal to discriminate against pro-choice employees

In 2019, the State of New York enacted a statute that makes it illegal for an employer to discriminate or retaliate against any employee "because of or on the basis of the employee's or dependent's reproductive health decisionmaking." This is known as the "Boss bill." An anti-abortion organization that counsels women against the procedure sued the state, claiming the law improperly requires them to hire pro-choice employees. The Court of Appeals finds that the law cannot force this organization to hire pro-choice employees.

The case is Slattery v. Hochel, issued on February 27. The organization, Evergreen, only hires employees who oppose abortion and extramarital sexual relationships. If you want to work there, the hiring official will ask if you are pro-choice or pro-life. If you are pro-choice, you are shown the door. The reason for this: they need personnel who can credibly communicate to patients the organization's opposition to abortion and extra-marital sexual relationships. 

More than a year after oral argument, the Second Circuit (Menashi, Nardini and Park) finds that, as to Evergreen, the law may violate the First Amendment right to expressive association. "The statute forces Evergreen to employ individuals who act or have acted against the very mission of its organization." While the Constitution does not expressly protect the freedom of association, that freedom is implied under the First Amendment. The Court adds,

The right to expressive association allows Evergreen to determine that its message will be effectively conveyed only by employees who sincerely share its views. To decide whether  someone holds certain views—and therefore would be a reliable advocate—Evergreen asks whether that person has engaged or will engage in conduct antithetical to those views.  Evergreen  has  plausibly alleged  that, by foreclosing Evergreen’s ability to reject employees whose actions suggest that they believe the opposite of the message it is trying to convey, § 203-e severely burdens Evergreen’s First Amendment right to freedom of expressive association.

Since plaintiff's associational rights are significantly burdened, the "strict scrutiny" standard applies, which means the government loses the case unless a compelling reason supports the restriction. At this stage of the litigation, New York cannot show that the Boss bill satisfies strict scrutiny. The Court notes that this analysis is not usually appropriate on a Rule 12 motion and that the right time for this is a summary judgment motion, after discovery is completed. But it looks like the State may lose the case in the end. The Court writes that, at a minimum, the lawsuit states a plausible claim under the First Amendment, entitling plaintiff to proceed with discovery:

drawing all inferences in Evergreen’s favor, the state’s interest cannot overcome the expressive association right of an organization such as Evergreen. On one side of the scale is the individual’s right not to be discriminated against for certain reproductive choices, such as having an abortion. On the other side is the First Amendment right of a particular association—in this case, Evergreen—to advocate against that conduct. 

If Evergreen had the right to exclude employees who have had an abortion, the right to be free of discrimination for having an abortion will be impaired only to the limited extent that a person cannot join the specific group or groups that oppose abortion. But if the state could require an association that expressly opposes abortion to accept members who engage in the conduct the organization opposes, it would severely burden the organization’s right of expressive association. “It would be difficult,” to say the least, for an organization “to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct.”

Finally, plaintiff challenges the law under the Free Exercise Clause, arguing that it burdens its religious practice. This might sound like a winning argument, but it fails because the law is neutral on its face and does not single out any religious practices. Under Supreme Court authority, i.e., Employment Division v. Smith (1990), laws like this do not violate the Free Exercise Clause. While the Boss bill's sponsors made public statements that may have expressed hostility toward religion, that does not mean the Legislature as a whole felt that way. The Courts do not want to invalidate a law on the basis of a few comments from individual legislators.