When Do Requirements for Employee Handbooks Implicate the First Amendment?

This is the question raised by a recent lawsuit filed in the Northern District of New York by religious anti-abortion organizations against New York State. In the case, Compasscare et al. v. Cuomo et al., 19-cv-01409, the organizational plaintiffs argued that their First Amendment rights were violated by a New York law that prohibits employers from discriminating or retaliating against employees or their dependents for their reproductive healthcare choices, and further prohibits the employers from accessing employee information to try and find out whether any such healthcare was sought. The law, New York Labor Law § 203-e, also requires employers to notify employees of this information in their employee handbooks (organizations without a handbook need not make a handbook just for this purpose). 

The plaintiffs in the case are organizations that require employees to abide by certain religious practices, including sexual abstinence for single employees and heterosexual monogamy for married employees, as well as a promise to abstain from using certain contraceptives or aiding or encouraging others to use those contraceptives (in the case of contraception, the objection is made on the grounds that the contraceptives in question are “abortifacient,” a claim not supported by the general scientific and medical community). The organizations also all stated that they “intend to take adverse employment action against employees who choose to procure abortions or otherwise violate their organizational policies regarding pregnancy, abortion, contraceptive use, and sexual morality.” 

The organizations alleged that the entire law violated their First Amendment rights by requiring them to hire or retain people who use certain contraceptives or who have obtained an abortion, despite the organizations’ opposition to such practices. The federal court hearing the case in the Northern District of New York rejected that claim and dismissed those portions of the lawsuit. 

However, the court ultimately agreed with the plaintiffs on one of their claims – that requiring the organizations to put information about this law in their employee handbooks violated those organizations’ First Amendment rights. The court found that this requirement constitutes prohibited “compelled speech” under the First Amendment. The court reasoned that employee handbooks constitute the employer’s “speech” and contain all kinds of employee policies which, in the cases of these organizations, is directly contradicted by the message of New York’s reproductive healthcare nondiscrimination bill. As a result, New York’s handbook requirement would directly undercut the organizations’ overall message to employees – that certain kinds of reproductive healthcare are prohibited. 

This is not the first case concerning reproductive healthcare access and compelled speech under the First Amendment. One of the organizational plaintiffs in the Compasscare v. Cuomo case, the National Institutes of Family and Life Advocates (NIFLA), was also the plaintiff in a major recent Supreme Court decision on compelled speech, NIFLA v. Becerra, 138 S.Ct. 2361 (2018). In that case, California required organizations that provide pregnancy counseling, but not medical services, to post signs that: clearly state that they do not provide medical services; that abortion, contraception, and prenatal care are available in California for free or reduced cost through public programs; and provide information about those programs. The requirement applied primarily to so-called “crisis pregnancy centers” – places that specifically aim to convince pregnant women not to have abortions. Such centers are often accused of providing pregnant people with misleading information, including deceiving people trying to access actual abortion clinics by advertising “options counseling” and, in some cases, locating themselves directly next to abortion providers. In that case, the Supreme Court agreed with NIFLA that a state cannot compel an anti-abortion organization to give pregnant people information about obtaining an abortion, where doing so is against the organization’s mission. The court argued that instead, the state could simply provide the information to people directly, including via public information campaigns (like radio ads or bulletin boards), without implicating anyone’s First Amendment rights to be free from compelled speech.

On the other side of the debate, there have been a number of cases recently in the federal courts (many of which I litigated while at Planned Parenthood Federation of America) concerning laws requiring abortion-providing doctors and health centers to give certain statements to patients receiving a medication abortion – usually, something about the abortion being “reversible” under certain conditions and providing a referral to an anti-abortion religious organization that promotes abortion “reversal” treatments. In those cases, the plaintiff doctors and health centers argued that the “information” the law required them to provide was false, misleading, and unscientific and that it violated the abortion providers’ mission to provide only high-quality, medically accurate information and reproductive health care services to patients. So far, every court to consider the issue has agreed and prevented those laws from going into effect. 

In all of these compelled speech cases, a common thread concerns the answers to these questions: (1) is there some other way for the state to communicate with people that does not compel any given organization or individual to engage in speech that violates a sincere conviction; and (2) does the compelled speech really violate the speaker’s convictions or can the problem be cured by “disavowal” – saying, “I don’t agree with this, the state made me say it.”

For the Compasscare v. Cuomo decision concerning employee handbooks, the court’s answer to (1) was that the state can require, for example, that employers post signs made by the state in visible areas or could simply advertise the existence of the law directly to New Yorkers. As to (2), New York State had argued that no religious convictions are implicated in providing a mere factual statement about what the law requires. The court, however, found that considering the missions and policies of the organizations in the lawsuit, “any statement about women’s right to autonomy about reproductive health decision-making is contrary to the message that Plaintiffs wish to promote about biblical values and sexuality.” (emphasis added). That is, it was insufficient for the organizations to try and contradict the required state message, since it directly undermined the organizations’ messages about what employees must do or refrain from doing. 

Finally, it is interesting to note what the court’s ruling did and did not do. It did not strike down the whole law on reproductive healthcare discrimination, but it also did not say that the specific organizations involved in the case were prohibited from firing any particular person because of their reproductive healthcare choices. Religious employers enjoy some exemptions from employment discrimination laws as applied to certain employees, to ensure that religious organizations are not required to hire, for example, ministers or priests who do not espouse their faith. This is known as the “ministerial exemption.” Thus, while the court let the law go into effect, if an employee of NIFLA got fired for their reproductive healthcare choices and then tried to sue NIFLA under this law, it is entirely possible that NIFLA would employ the ministerial exemption as an affirmative defense to try to avoid liability.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Christine Clarke who counsels clients on employment, labor, healthcare, housing, and civil rights law, as well as legal compliance for non-profit organizations; First Amendment free speech and constitutional due process claims; and discrimination dispute resolution and prevention trainings. Ms. Clarke is admitted to practice law in New York, as well as the U.S. District Courts in the Southern and Eastern Districts of New York, the Second Circuit Court of Appeals, and the United States Supreme Court. Attorney Advertising.