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New York State law prohibiting discrimination against employees based on reproductive health decisions survives First Amendment challenge

By Robert Margolis, J.D.

The statute addressing hiring and firing decisions regulates conduct, not speech, court holds.

A New York law prohibiting employers from discriminating in employment decisions based on employee reproductive health choices does not violate the First Amendment rights of a Catholic “crisis pregnancy center” that espouses pro-life views, a federal district court in New York has held. The court dismissed the lawsuit brought by an individual and The Evergreen Association, Inc., which sought declaratory and injunctive relief against enforcement of New York Labor Law § 203-e (Slattery v. Cuomo, March 31, 2021, McAvoy, T.).

Crisis pregnancy center. Evergreen operates “crisis pregnancy centers” in New York City, which have “the morally and religiously motivated mission of saving children from abortion and providing alternatives to abortion,” including supporting mothers who reject abortion and choose adoption. Evergreen promotes the “moral and religious belief” that abortion “claims an innocent life,” and that extra-marital sex is an “intrinsic evil.” Therefore, it enforces an employment policy providing that employees “must not obtain, assist in obtaining, or condone abortion, and must not be involved in sexual relationships outside of marriage (such as cohabitation).” It makes these positions clear in advertising for jobs, asks job candidates if they are pro-choice or pro-life, and only hires the latter.

Section 203-e. In 2019, New York enacted New York Labor Law § 203-e, with the stated purpose of prohibiting employers from discriminating or retaliating against employees based on their reproductive health decisions. It also prohibits requiring employees to sign waivers or other documents purporting to deny them the right to make their own reproductive health decisions. The law requires employers that provide employee handbooks to include notice of these rights in the handbook. The statute gives employees a private right of action against employers.

Evergreen contends that it is subject to the statute, but its guiding religious beliefs mandate that it violate the law. It sued to obtain relief from enforcement of the law, claiming that the law violates its First Amendment free association, free speech, and free exercise clauses, as well as its Fourteenth Amendment equal protection rights. New York moved to dismiss all four claims.

Free exercise. Contending that the statute was a valid law of general applicability, not intended to suppress religion or religious conduct, the state argued it need only have a rational basis to pass constitutional muster. Evergreen countered that it stated a free exercise claim by alleging that the statute targets religion. The court found the State’s argument more persuasive.

Neutral on its face. The court first addressed the parties’ dispute over whether Section 203-e is neutral. The statute is neutral on its face, as its plain language makes it applicable to all employers, regardless of the type of business. In addition, an employer who fired an employee for not having an abortion or not using contraception would be liable under the statute, just like an employer who fired an employee for having an abortion or using contraception. Having found the law to be neutral on its face, the court looked to whether it nonetheless targets religious conduct impermissibly. Evergreen pointed to allegations in its complaint, but the court found these to be conclusory, rendering legal opinions without supporting facts. Allegations that the law would make Evergreen’s employment policies illegal is not the same as targeting their religious beliefs, the court pointed out. Reproductive decision-making is a concern that extends beyond particular religious beliefs and cuts in many directions, regardless of beliefs, reasoned the court.

Rational basis review. Therefore, the state only had to establish that it has a rational basis for enforcing the law, meaning the law is rationally related to a legitimate state interest. The court found that the state has a legitimate interest protecting individuals’ privacy and autonomy, and the law’s protection against discrimination based on private choices is rationally related to that legitimate interest.

Free speech. Evergreen contended that the law violates its free speech rights, forcing it to limit its speech about abortion to avoid being sued for discrimination under the statute, as well as limiting its ability to express preferences for employees sharing common views about abortion and chastity, and discussing those views with employees. Punishing such speech interferes with First Amendment rights, it argued. But the state countered that the law only regulates conduct, leaving Evergreen and its supporters free to espouse their views, both within and outside the workplace.

The court agreed with the State, noting that the law does not prevent Evergreen from telling the women it serves that they should not get abortions, or in any way restricting speech. It only prohibits employers from discriminating in employment based on reproductive health decisions by employees or prospective employees. Hiring, firing, or refusing employment is conduct, not speech, the court reasoned. In any event, the statute does not prohibit Evergreen from terminating an employee whose speech advocates for positions it disfavors; it only relates to reproductive health choices.

Waiver. And while Evergreen argued that the statute’s no-waiver requirement limits its free speech rights, the court found it to be content-neutral, in that it does not regulate speech directly and is directed at conduct. As such, under “intermediate scrutiny,” because the court found the law to reasonably serve a significant government interest, even if not in the most narrowly tailored way, the law survived the free speech challenge as well.

Association. The court agreed with Evergreen that it engages in expressive association, in that it associates with its staff to share a pro-life message with the world. While it also offers health-care services to pregnant women, it does so in the context of sharing its pro-life message with the women it serves. However, the court found that Evergreen overstated the law’s interference with association rights. First, it does not apply to all persons associated with Evergreen, such as volunteers or ministers, but only to employees. As noted above, it does not require Evergreen to permit employees to espouse messages contrary to Evergreen’s pro-life and pro-marriage agenda.

While the court agreed with Evergreen that the law could force it to employ persons whose reproductive choices fail to comport with Evergreen’s ideals and thus undermine its message, it found that limitation on its rights to be too “incidental” to violate First Amendment rights. The danger that outsiders might call Evergreen “hypocrites is not a significant limitation on [its] speech or right to associate,” the court held.