An employer can continue with its challenge of a New York law that prohibits discrimination against workers based on their reproductive health decisions, the 2nd U.S. Circuit Court of Appeals held earlier this week (Slattery v. Hochul, No. 21-911 (2d Cir. Feb. 27, 2022)).
The court sided with the Evergreen Association, Inc., an operator of several anti-abortion crisis pregnancy centers, in its pursuit of a lawsuit against the state of New York. The state law at the center of the dispute, known as the “Boss Bill,” was signed in November 2019. It is intended to ensure employees and their dependents can make reproductive decisions without fear of reprisal from their employers, according to a press release from Sen. Jen Metzger, who sponsored the bill.
The Evergreen Association and its president, a co-plaintiff in the suit, argued that the law limits employers’ right to expressive association, in violation of the First and 14th Amendments to the U.S. Constitution.
“Evergreen contends that the statute undermines its anti-abortion message as a crisis pregnancy center because associating with [employees who seek abortions] contradicts its central message,” the 2nd Circuit summarized in court documents. “Evergreen also raises freedom of speech, free exercise of religion, and void for vagueness challenges to the statute.”
The U.S. District Court for the Northern District of New York initially dismissed all claims, but the 2nd Circuit found on appeal that Evergreen has a plausible claim regarding expressive association. Specifically, the district court found the burden on expressive association rights was merely “incidental,” while the 2nd Circuit determined it to be “severe.”
Mike Sacks, a legal analyst and visiting scholar at Duke University’s Sanford School of Public Policy, noted on Twitter that the significance of the decision may come down to how future courts interpret the 2nd Circuit’s assertion that Evergreen was forced to employ workers “who act or have acted against the very mission of its organization.”
As a practical matter, how big a deal this decision may be depends on how much future courts will make of this dicta: “The statute forces Evergreen to employ individuals who act or have acted against the very mission of its organization.” https://t.co/4yYRSrT7mS
— Mike Sacks (@MikeSacksEsq) February 27, 2023
Because Evergreen is an expressly anti-abortion organization, he noted, the impact is likely limited. However, if future courts take the view that the law can’t apply to any employer “by virtue of its ownership’s views on abortion regardless of the company mission,” the impact will be great.
“That, though, is not what this decision is doing, at least for now,” Sacks said.
