Second Circuit Permits Challenge to New York Reproductive Decision-Making Law
Tuesday, June 13, 2023

The U.S. Court of Appeals for the Second Circuit issued a decision in Slattery v. Hochul, reversing the dismissal of a First Amendment challenge to New York Labor Law §203-e (also referred to as the “Boss Bill”). The Boss Bill prohibits employers from taking adverse employment actions against employees based upon their reproductive health decisions, including “a decision to use or access a particular drug, device, or medical service,” and also forbids employers from “accessing an employee’s personal information regarding the employee’s . . . reproductive health decision making.” The term “reproductive health decision making” necessarily would include an employee’s decision to have an abortion or use contraception. The Boss Bill, unlike Title VII of the Civil Rights Act, does not contain an exemption for religiously affiliated organizations.

The Boss Bill is enforced by the Commissioner of New York’s Department of Labor and allows for a private right of action to be initiated by an employee against an employer alleged to have violated any of the provisions of §203-e. If an employee prevails, the employee may be entitled to injunctive relief, reinstatement, and/or liquidated damages, including back pay, benefits, and attorneys’ fees.

The Boss Bill was signed into law on November 8, 2019. Shortly thereafter, the Evergreen Association, Inc. (“Evergreen”), a New York nonprofit organization that operates a network of pregnancy crisis centers, filed a complaint in U.S. District Court for the Northern District of New York, seeking an injunction prohibiting the State of New York from enforcing §203-e against Evergreen, as well as a declaration that §203-e is unconstitutional. Evergreen is opposed to abortion and its pregnancy centers “do not recommend, provide, or refer for abortions, contraceptives, birth control, or abortifacient drugs or devices.” According to Evergreen, its “personnel are expected to agree with and abide by Evergreen’s position on abortion and sexual relationships outside of marriage in both their work and private life,” and it does not consider applicants who express support for abortion. In its complaint, Evergreen contended that §203-e violates Evergreen’s rights to freedom of expressive association, freedom of speech, and free exercise of religion guaranteed by the First and Fourteenth Amendments. Evergreen argued that §203-e “undermines its anti-abortion message as a crisis pregnancy center because associating with such employees contradicts its central message.” Additionally, Evergreen maintained that §203-e violates Evergreen’s due process under the Fourteenth Amendment because it is too vague to be enforced. The District Court dismissed all four claims.

On appeal, the Second Circuit affirmed the District Court’s dismissal of Evergreen’s freedom of speech, free exercise of religion, and vagueness claims. However, the Second Circuit reversed the District Court’s dismissal of Evergreen’s claim that Labor Law §203-e violates Evergreen’s First Amendment right to freedom of expressive association. Relying upon the 1984 Supreme Court case Roberts v. U.S. Jaycees, as well as a 2020 Second Circuit case New Hope Family Services v. Poole, the Second Circuit held that Evergreen “stated a plausible claim” that §203-e “significantly interferes” with Evergreen’s right to expressive association because under §203-e, Evergreen would be forced to associate with employees or prospective employees whose actions are contrary and adverse to Evergreen’s views. The Second Circuit noted that a “regulation that forces the group to accept members it does not desire may impair the ability of the original members to express only those views that brought them together.”

The Second Circuit also held that when analyzing the expressive association claim, the District Court correctly found that Evergreen engages in expressive association, but incorrectly held that §203-e’s burden on Evergreen’s expressive association rights was incidental. Rather, the Second Circuit held that the burden was severe and that the District Court should have applied the strict scrutiny standard, which requires that the law advances a compelling government interest through the “least restrictive means” possible. The Second Circuit noted that when strict scrutiny applies, “the norm is to wait until the summary judgment stage of the litigation to address the ultimate question of whether the [regulation] should stand.” As such, the Second Circuit held that, at this early stage in the litigation, the State had not met its burden of demonstrating that Labor Law §203-e passes the strict scrutiny analysis. Accordingly, Evergreen’s challenge to Labor Law §203-e should have survived the state’s motion to dismiss. The case has been remanded to the District Court to continue through litigation.

What’s Next for Anti-Discrimination and Reproductive Health Legislation?

The Second Circuit’s decision in Slattery v. Hochul has been cited by an employer challenging an anti-discrimination law in the Fourth Circuit. In Billard v. Charlotte Catholic High School, et al., the Roman Catholic Diocese of Charlotte was sued for discrimination after terminating a gay teacher employed by Charlotte Catholic High School. In support of its appeal, the Diocese filed a Notice of Supplemental Authority citing to the Second Circuit’s decision in Slattery v. Hochul, arguing that “[t]he right to expressive association allows [an organization] to determine that its message will be effectively conveyed only by employees who sincerely share its views.” According to the Diocese, requiring the Diocese to employ (or continue to employ) teachers who “have acted against the very mission of its organization” “imposes severe burdens on [the Diocese’s] right to freedom of expressive association.” That litigation continues.

Meanwhile, other jurisdictions have been considering or enacting laws similar to the Boss Bill. For example, Michigan recently amended its Elliot-Larsen Civil Rights Act to include “pregnancy, childbirth, the termination of a pregnancy, or a related medical condition” within the definition of “sex,” one of the law’s currently protected classes. Similarly, on May 25, 2025, Cook County, Illinois, adopted an amendment to its Human Right Ordinance that, among other things, prohibits discrimination on the basis of an individual’s exercise of bodily autonomy as it relates to reproductive health care.

It remains to be seen what impact, if any, the Second Circuit’s decision in Slattery v. Hochul will have on the application of N.Y. Labor Law §203-e. The State of New York filed its Answer on May 5, 2023, and this matter continues to be litigated. Notably, Slattery v. Hochul comes on the heels of Dobbs v. Jackson Women’s Health Organization, in which the Supreme Court of the United States held that the U.S. Constitution does not guarantee the right to abortion (overturning Roe v. Wade). Due to the Dobbs decision, individual state laws either protecting or restricting abortion and other reproductive health decisions are gaining national attention. Epstein Becker & Green, P.C. will continue to monitor and report on developments regarding this case, as well as other anti-discrimination and abortion-related legislation affecting employers. 

 

NLR Logo

We collaborate with the world's leading lawyers to deliver news tailored for you. Sign Up to receive our free e-Newsbulletins

 

Sign Up for e-NewsBulletins