Second Circuit: Challenge to NY Reproductive Decision-Making Law

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APPLIES TO

All Employers with NY Employees

EFFECTIVE

February 27, 2023

  

QUESTIONS?

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Quick Look

  • There is a plausible claim that New York’s “Boss Bill” significantly interferes with an employer’s 1st Amendment right to expressive association therefore litigation can continue on this claim.
  • The Boss Bill prohibits employers from taking adverse actions against employees for their reproductive health decisions or accessing an employee’s personal information regarding their reproductive health decision making.

Discussion

In Slattery v. Hochul, the Second Circuit Court of Appeals ruled there was a plausible claim that New York’s “Boss Bill” significantly interferes with an employer’s First Amendment right to expressive association; therefore, litigation can continue on this claim. Effective November 8, 2019, the Boss Bill or Labor Law § 203-e prohibits employers from taking adverse actions against employees for their reproductive health decisions or accessing an employee’s personal information regarding their reproductive health decision making. This includes an employee’s decision to use or access a particular drug, device, or medical service like a decision to have an abortion or use contraception.

Here, a crisis pregnancy center and its president argued the Boss Bill violated their First and 14th Amendment rights to freedom of expressive association and sought an injunction prohibiting New York from enforcing the law and declaring it unconstitutional. Since the crisis pregnancy center is opposed to abortion and only hires people who share its same views on abortion, premarital sex, and use of contraception, it alleged the Boss Bill violated its speech, association, and religious rights by forcing the center to associate with employees that contradict its central message. The U.S. District Court for the Northern District of New York dismissed all of the claims. On appeal, the Second Circuit Court agreed with the dismissal of three claims but allowed the First Amendment expressive association claim to continue to litigation.

The case is still in litigation, and as of yet we do not know what impact a ruling will ultimately have on the Boss Bill. The Second Circuit Court stated the Boss Bill severely burdened the pregnancy crisis center’s ability to communicate its message by forcing an association with employees who do not share its views. Employers should continue monitoring developments in the litigation of the remaining claim in the event it ultimately changes the enforcement of the law. For now, employers must still comply with the Boss Bill.

Action Items

  1. Review adverse actions against employees for reproductive healthcare decisions with legal counsel.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase