Court outlines when private religious organization may challenge state laws against contraception-based discrimination

This religious freedom case asks whether the State of New York can prevent anti-abortion organizations from discriminating against employees based on their reproductive health decision-making, i.e., employees who have used contraception or have had an abortion.

The case is CompassCare v. Hochul, issued on January 2. New York Labor Law, prohibits “discrimination based on an employee’s or a dependent’s reproductive health decision making.” Specifically, the Act prohibits an employer from “accessing an employee’s personal information regarding the employee’s . . . reproductive health decision making, including but not limited to, the decision to use or access a particular drug, device or medical service.” The Act also prohibits employers from discriminating or retaliating against employees and from requiring an employee to waive these rights. In addition, the Act requires an employer who chooses to issue an employee handbook to “include in the handbook notice of employee rights and remedies under this section.”

Plaintiffs are "pro-life" religious organizations who claim the Act violates the First Amendment, which protects the right to free speech and the religious clauses, the Free Exercise Clause and the Establishment Clause. Plaintiffs advocate against those practices. The district court dismissed the case as to plaintiff's argument that the Act violates the First Amendment, but it struck the notice provision as unconstitutional.

In 2023, while this case was pending, the Second Circuit held in Slattery v. Hochul, 61 F.4th 278 (2d Cir. 2023), that an employer may have an associational-rights claim if the Act “forces [the employer] to employ individuals who act or have acted against the very mission of its organization.” After reviewing the holding in Slattery and the Supreme Court's ruling on the associational rights of private organizations, the Court of Appeals remands the case to the Northern District of New York to further review this case in light of these principles, largely centering on whether the state's mandatory rules would threaten the very mission of the organization:

To sustain their challenge to the Act, each Plaintiff must adequately allege (and eventually prove) that the Act threatens “the very mission of its organization.” It is not enough for an employer to claim that it holds particular views or interests, or even that it expresses such views through its work. In the workplace, expressive association rights are not unlimited; the right to expressive association does not permit an employer generally to discriminate in its employment practices – potentially violating the statutory or constitutional rights of employees and applicants. “There is no constitutional right, for example, to discriminate in the selection of who may attend a private school or join a labor union.” Rather, the right to expressive association is implicated only when the employment decision at issue “goes to the structure and identity of the association as an association.” 

For an employer to make the showing required by Slattery, it must show that the Act threatens its very mission not only in a vague and generalized sense, but in the context of a specific employment decision.

This would presumably require assessment of (1) the responsibilities of the position at issue, including whether it is client-facing and whether it involves expressly or implicitly speaking for the organization, and (2) the particular conduct or attribute of the employee that renders the employment of that person, in that position, a threat to the employer’s mission. In short, an employer must plausibly allege that the Act’s impact on the specific employment decision “will impede the organization’s ability to engage in . . . protected activities or to disseminate its preferred views.”

Another round of briefing in the NDNY will ensue. More briefing, more fun, as the attorneys navigate this changing landscape involving the First Amendment, the rights of employees, and the state's interest in protecting employees from termination (or failure-to-hire) based on their reproductive choices.

2d Circuit sustains sexual assault verdict against Trump

The Second Circuit has sustained the sexual assault verdict against Donald Trump, ruling that the trial court did not abuse its discretion in certain evidentiary rulings that bolstered the plaintiff's case. Recall that a Southern District jury found that Trump violated E. Jean Carroll in the dressing room at a Bergdorf Goodman in New York City in 1996, a claim made possible by the Adult Survivor's Act, which revived the statute of limitations. The ruling focuses on the federal rules of evidence and whether the trial judge abused his discretion in allowing the jury to hear about Trump's other sexual abuse victims and the Access Hollywood tape in which Trump talked about grabbing women by the genitals.

The case is Carroll v. Trump, issued on December 23. The jury awarded plaintiff $5 million in damages for the sexual assault and Trump's defamatory comments about plaintiff after she publicized the allegation.

Years ago, you could not bring in evidence of the defendant's prior bad acts to prove your case. We call that propensity evidence. The concern was that you would find a party liable or guilty (in a criminal case) because of what he did in some other case. But Congress amended the Federal Rule of Evidence 415 to permit the jury in sex abuse cases to hear about the civil defendant's prior sex abuse. That evidence is admissible if it survives the balancing test under Rule 403: if its relevance is not substantially outweighed by unfair prejudice. The trial judge's evidentiary rulings are usually affirmed on appeal under the "abuse of discretion" test, and this case is no exception.

The Court of Appeals summarizes the trial testimony this way:

In 1996, Ms. Carroll encountered Mr. Trump at the Bergdorf Goodman department store in Manhattan. At the time, Ms. Carroll was an advice columnist for Elle Magazine and hosted a daily advice talk show called "Ask E. Jean." Mr. Trump recognized Ms. Carroll and asked her to stay and help him pick a gift for a girl. Describing this as a "funny New York scene" and a "wonderful prospect" for a "born advice columnist" to give advice to Mr. Trump on buying a gift, Ms. Carroll said yes.

After Ms. Carroll suggested that Mr. Trump purchase a handbag or a hat, Mr. Trump proposed that they go to the lingerie department instead. Ms. Carroll and Mr. Trump went to the lingerie department on the sixth floor. Mr. Trump selected a piece of lingerie and insisted that Ms. Carroll try it on. Ms. Carroll jokingly responded, "You put it on. It's your color." After some playful banter, Mr. Trump took Ms. Carroll's arm and motioned for her to go to the dressing room with him. Because Mr. Trump was being "very light" and "pleasant" and "funny," Ms. Carroll walked with Mr. Trump into the open dressing room, which she described as "sort of an open area." But as soon as she entered, Mr. Trump "immediately shut the door" and "shoved [her] against the wall . . . so hard [that] [her] head banged."

Ms. Carroll pushed Mr. Trump back, but "he thrust [her] back against the wall again," causing her to "bang[] [her] head again." With his shoulder and the whole weight of his body against her, Mr. Trump held her against the wall, kissed her, pulled down her tights, and stuck his fingers into her vagina -- until Ms. Carroll managed to get a knee up and push him back off of her. She immediately "exited the room" and left the store "as quickly as [she] could." The encounter lasted just a few minutes.

One witness, Leeds, told the jury that Trump assaulted her on an airplane in 1978 or 1979. That conduct was admissible because it arguably constituted a sex crime under the U.S. Code. Another witness, Stoynoff, testified that, as a reporter for People magazine, Trump sexually assaulted her behind closed doors at Mar-a-Lago in 2005. As for the Access Hollywood tape, we all know what Trump said on camera, that "when you're a star," you can grab women by the genitals. That tape, from 2005, nearly upended the 2016 presidential election. The trial court admitted this tape in evidence because it suggests that Trump has had contact with women's genitalia without their consent, or has attempted to do so. The tape was also admissible because it shows a pattern of sexual assault, or a recurring modus operandi.

Other evidentiary rulings are also discussed in this decision. Trump challenged the trial court's order excluding evidence challenging Carroll's credibility, such as that a third-party helped to fund her litigation against Trump. But courts have held such funding is not relevant to credibility. The trial court also acted within its discretion in excluding evidence that, according to Trump, suggested that Carroll was trying to influence Stoynoff's testimony. Nor did the district court abuse its discretion in precluding any argument that Carroll had allegedly falsely claimed that Trump's DNA was on her dress from the dressing room incident.

As described in this ruling, the evidence at trial certainly makes Trump look terrible. The Court of Appeals (Chin, Carney and Perez) notes that Trump did not testify nor even appear at trial, and the Court adds that Trump has denied the allegations. I guess that reference is a courtesy to the next President of the United States. However, as all litigators know, if the jury said it happened, the denials fall away on appeal and the court accepts the evidence in the light most favorable to the winning party.

Connecticut educator cannot win disparate treatment claim

In this disparate treatment case under Title VII, plaintiff argued that she could not be terminated for the same misconduct that her co-workers had also committed. The Court of Appeals affirms the grant of summary judgment, holding that, whatever her co-workers did wrong, they were not comparable to plaintiff. This dooms the disparate treatment claim, and the case is over.

The case is Laiscell v Board of Education, City of Hartford, a summary order issued on December 20.

The Board’s letter terminating Laiscell’s employment cited her “fraudulent and unprofessional conduct, including but not limited to” maintaining her ex- husband as an eligible dependent on her healthcare plan, costing the school district approximately $6,691; deleting a sentence from an email she forwarded to school superintendents, purportedly minimizing the significance of the ongoing dependent verification audit; and improperly storing certain budget-related files on her laptop. The letter further stated that “[s]uch conduct is particularly egregious given [her] stature and position . . . as the Executive Director of Financial Management.”

Plaintiff claims she was fired in retaliation for exercising her rights under Title VII. But the only way she can claim retaliation is if other coworkers did the same thing but were not fired. The question is whether the coworkers were similarly-situated, or comparable, to plaintiff under Title VII. They are not. 

The other workers who allegedly committed similar misconduct held lower-level positions than plaintiff or belonged to the union. Under case law from the Second Circuit (and presumably all the federal courts around the country), the employer may treat people differently depending on their job title and whether they are subjected to certain protections under the collective bargaining agreement. 

Continued post-complaint sexual harassment does not always permit employer liability

A hostile work environment will not result in any damages, or even a jury trial, if the plaintiff cannot connect that work environment to the employer. This case is a good example of how it all works. In the end, plaintiff loses the case because the Court of Appeals determines the employer, the Veterans' Administration, acted reasonably after it learned that plaintiff was being harassed by a coworker who would not leave her alone.

The case is Cain v. McDonough, a summary order issued on December 19. Coworker White made sexual overtures toward plaintiff, but she rebuffed him. White then falsely wrote plaintiff up for misconduct (he was her temporary supervisor for one day). When plaintiff complained to management about White's harassment, the VA's police chief began an investigation almost immediately, and White was given a warning and they changed his shift to keep him away from plaintiff. The VA also took away his service weapon and had him work somewhere else in the building, warning him to stay away from plaintiff. 

The VA's swift response to plaintiff's harassment claim would normally be enough for the agency to defend this lawsuit. So plaintiff focuses on what happened next:

Three times, White came into the office area near Cain’s desk after the stay-away order. In the first two instances, White came to the administrative area near Cain’s cubicle, and either shuffled papers or lingered near her. He did not speak to, touch, or attempt to touch Cain. Cain did not report his conduct. On the third occasion, White came to the same area, shuffled papers, and remained for a shorter period of time. Cain reported these incidents to the police chief. In response, the chief had another conversation with White and told him that he could not spend time in the area near Cain’s desk. If he had something to drop off in the administrative office, he should “drop it off and go.” The chief told Cain that on occasion White may have to come to the administrative office near Cain’s work area, but he would not need to stay near Cain’s desk for any length of time. After that, Cain had no further problems; White only came to her office area a few times, and each visit was very brief.

On this record, the employer is not liable for negligently handling plaintiff's harassment complaint. Here is how the Court of Appeals puts it:

The VA instituted a formal investigation within one business day after Cain reported the harassment. The VA took the allegations seriously. And the VA’s response was multifaceted and included steps to prevent Cain and White from working overlapping shifts, relocating White to a different wing of the building, taking away White’s service weapon, and requiring White to stay away from Cain’s work area. As soon as Cain notified her supervisors that White had stood near her desk following the stay-away order, they took effective action to ensure that it didn’t happen again. Moreover, at the conclusion of its investigation the VA placed White on a last chance agreement, which included a demotion from lieutenant to line officer.

Plaintiff argued that, in light of White's violation of the stay-away order, her case is comparable to another coworker harassment case, Whidbee v. Garzarelli Food Specialities, 232 F.3d 62 (2d Cir. 2000), a case that I argued 25 years ago. In that case, the harassment continued even after the plaintiffs complained about a coworker's racial comments. Summary judgment for the employer was reversed in that case because the manager did not speak to the offending employee for several days, during which time the harassing comments continued. After the manager gave the coworker a warning, he made further racially-harassing comments, and the manager told the plaintiffs he was unable to control the coworker's mouth and he did not know how to deal with the problem. While the manager then gave the coworker a written warning, the harassment continued, prompting the plaintiffs to quit their job. Whidbee stands for the proposition that the continued harassment after the plaintiffs' repeated complaints permits the inference that management's response was inadequate. 

Cain's case is not Whidbee, the Court of Appeals (Robinson, Nathan and Briccetti [D.J.]) holds, because "it is undisputed that White did not speak to or contact Cain after her initial complaint, that Cain did not report White’s coming near her desk the first two times he came to the administrative office area, and that once she reported these incidents, the police chief effectively ensured that White stayed away from Cain."

This Whidbee distinction may be the first time the Court of Appeals has held that continued harassment following management's attempts to stop the harassment does not always permit a finding of employer liability in coworker harassment cases. Every precedent has its limits, and the presidential reach of Whidbee is no exception.