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.