New York can force religious organization to include choice-related employee protections in employee handbook

Several years ago, the State of New York enacted a law requiring employers to include something in the employee handbook: a promise that the employer will not discriminate against its workers over their reproductive choices. The religious organization in this case sued to enjoin this portion of the law, claiming it compels them to advocate for behavior that contradicts its religious principles. The religious organization won in the district court, but loses in the Court of Appeals, finding the notice requirement is not compelled speech in violation of the First Amendment.

The case is CompassCare v. Hochul, issued on January 2. The other holding in this case is discussed here. The district court granted summary judgment to the plaintiff on the basis that the handbook rule was "compelled speech" that did not survive strict scrutiny (the most difficult level of constitutional review for the government to navigate) because there are other ways to notify employees of their rights, such as posters for display in the workplace.

The Second Circuit (Parker, Perez and Merriam) reverses and holds that strict scrutiny is not the correct standard of review because the notice requirement is a form of commercial speech which enjoys reduced constitutional protections. Yes, the notice requirement is content-based (which would normally be problematic), but this is not the kind of speech normally struck down in the compelled speech cases, as it does not force employers to adopt certain political or religious opinions. Under rational basis review, the most deferential test guiding governmental actions, the notice provision is legal, as it promotes "purely factual and uncontroversial information about the terms under which services will be available." The notice provision is comparable to other government-mandated speech rules in the workplace, such as posters displaying health, safety, and civil rights protections. In sum,

We conclude that the required notification does not interfere with Plaintiffs’ greater message and mission. The Notice Provision does not require alterations of other portions of the handbook, nor does it require any statement regarding the merits of the Act. Plaintiffs remain free to share with their employees, in the handbooks or elsewhere, their moral, political, and religious views, their expectations for employees, and even their disagreement with the Act.