Second Circuit Restores Reproductive Rights Notice Requirement for New York Employers

By Jill Kahn Marshall and Anna Beckelman

            In a recent bright spot for defenders of reproductive rights, the U.S. Court of Appeals for the Second Circuit has ruled in CompassCare et al. v. Hochul that employers in New York State must still provide notice to their employees regarding New York Labor Law 203-e’s prohibition on discrimination and retaliation based on reproductive health care decisions.  The Second Circuit’s decision lifts a permanent injunction previously issued by the district court.

The New York state law in question went into effect in November 2019, and prohibits employers from discriminating or retaliating against employees on the basis of their reproductive health decisions, including, “a decision to use or access a particular drug, device or medical service.”  Under the law, employers also may not require employees to sign a waiver denying them the right to make their own reproductive health decisions, nor may employers access personal information about employees’ or their dependents’ reproductive health decisions.  The law also requires that employers which provide an employee handbook include a written notice to employees of these rights.

In CompassCare et al. v. Hochul, three religious organizations challenged this law, alleging that it infringed on their First Amendment rights of freedom of speech, freedom of religion, and freedom of expressive association.  With regard to the notice provision, the plaintiffs claimed that such a requirement compelled speech in violation of the First Amendment.  While the U.S. District Court for the Northern District of New York dismissed most of the plaintiffs’ claims and allowed the law to stand with respect to its protection of employees’ reproductive choices, it did issue a permanent injunction against the notice provision.  The district court viewed the provision as compelling speech that contradicted the plaintiff organizations’ values, as all three organizations oppose abortion and contraception on religious grounds.

This January, however, the Second Circuit vacated the injunction and restored Section 203-e’s notice provision.  The Appeals Court ruled that the notice provision was similar to many other state and federal laws requiring workplace disclosures of health, safety, and civil rights information, and therefore did not exceed constitutional authority. The Second Circuit compared the notice provision to mandatory commercial disclosures in advertising, which are subject to lesser First Amendment protections, in that the notice provision only requires the disclosure of factual information and does not involve matters of opinion. Furthermore, the Second Circuit noted that compliance with the law’s notice provision would not “interfere with the Plaintiffs’ greater message and mission” and that the plaintiffs “remain free to share with their employees, in the handbooks or elsewhere, their moral, political, and religious views, their expectations for employees, and even their disagreement with the Act.”

In addition to lifting the injunction on the law’s notice provision, the Second Circuit also remanded the question of the plaintiffs’ expressive association rights under the First Amendment for reconsideration by the district court.  Specifically, it instructed the district court to reconsider the dismissal of the plaintiffs’ associational rights claim in light of Slattery v. Hochul, in which the Second Circuit ruled that such a right may be violated where a law requires an employer to “employ individuals who act or have acted against the very mission of the organization.” In this case, as in Slattery, the question will be whether the plaintiffs, as religious, pro-life organizations, are required to hire individuals who have acted in opposition to their principles.

In light of the CompassCare ruling, employers in New York State are now once again required to provide employees with notice of their workplace protections regarding reproductive health decisions.  Employers should immediately amend their employee handbooks or provide an addendum to same, in order to comply with the law.