Abortion foe gets another chance to fight NY workplace discrimination law

MANHATTAN (CN) — Anti-abortion nonprofit CompassCare will get another shot at their lawsuit challenging a New York labor law that bars workplace discrimination based on employees’ abortion stance, the Second Circuit ruled Thursday.

In a 43-page ruling, a panel of circuit judges ruled that new precedent in the federal appeals court gives CompassCare fresh grounds to dispute New York Labor Law § 203-e, which is defined as the “prohibition of discrimination based on an employee’s or a dependent’s reproductive health decision making.”

Now remanded to federal court in the Northern District of New York, Thursday’s ruling vacated the lower court’s dismissal of CompassCare’s expressive-association claims on the back of Slattery v. Hochul — a similar lawsuit from another anti-abortion group against the same state law which the Second Circuit ruled on in 2023.

“This court decided Slattery v. Hochul, which held that an employer may have an associational-rights claim if the act ‘forces [the employer] to employ individuals who act or who have acted against the very mission of its organization,” U.S. Circuit Judge Sarah Merriam wrote for the panel. “In light of that decision, we vacate the dismissal of plaintiffs’ expressive-association claim.”

The Joe Biden appointee acknowledged Slattery wasn’t decided by the Second Circuit until after the lower court dismissed CompassCare’s claims.

“The district court did not have the benefit of the Slattery opinion — which is now binding precedent — when it issued the orders challenged in this matter,” Merriam wrote, adding that it will now be on the lower court to determine whether CompassCare plausibly made an expressive-association claim under the new precedent.

The three-judge panel, which also included U.S. Circuit Judge Barrington Parker, a George W. Bush appointee, and U.S. Circuit Judge Myrna Pérez, a Biden appointee, affirmed the lower court’s dismissal of CompassCare’s free speech and free exercise claims, however.

The law in question, popularly known as the “Boss Bill,” specifically bars employers from taking action against employees for deciding “to use or access a particular drug, device or medical service,” and from “accessing an employee’s personal information” to make reproductive health choices.

CompassCare claims the law is utterly detrimental to its mission since it prevents them from vetting prospective employees’ true views on reproductive health. The group wrote in a 2023 legal brief that “their messengers must practice what they preach, or else their message will fail.”

The group also says the law “hijacks” their employee handbooks and forces them to promote ideas surrounding abortion that cripples their mission.

“This would be just like requiring PETA to hire somebody who is engaging in the carnivore diet or as a hunter on the weekends,” Caleb Dalton, an attorney for Alliance Defending Freedom representing the plaintiffs, said during the appellate oral arguments in December 2023. “Even if they don’t tell anybody about it, that still undermines PETA’s message to require them to hire this person who can’t credibly be part of the organization.”

Alliance Defending Freedom praised the panel’s ruling.

“Our nation has long respected the rights of religious organizations to associate with like-minded believers, and the court’s decision rightly reinstates our clients’ claim seeking to affirm that this right protects employment practices affecting the groups’ mission,” Alliance Defending Freedom senior counsel Kevin Theriot said in a statement. “Religious employers are free to hire individuals who share their core beliefs, and no government can force faith-based organizations to contradict those convictions.”

Alongside CompassCare, fellow plaintiffs in this case include Rochester’s First Bible Baptist Church and anti-abortion advocacy group the National Institute of Family and Life Advocates.

The named defendants include New York Governor Kathy Hochul, the state’s Department of Labor Commissioner Roberta Reardon and New York Attorney General Letitia James. All three were contacted for comment on Thursday.

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