In
CompassCare v. Cuomo, (ND NY, June 5, 2020), a church and two pro-life organizations challenged the constitutionality of
N.Y Labor Law § 203-e which prohibits employers from discriminating or taking retaliatory action against an employee because of the employee's reproductive decision making or use of any drug, device or medical service. It also requires employee handbooks to give notice to employees of their rights under the statute. According to the court:
Plaintiffs’ complaint, then, is that Labor Law § 203-e will alter their appearance and thus undermine their message. People will know that, even though they proclaim a public commitment to a particular message about religion, sexuality, abortion, and contraception, employees may engage in conduct contrary to their professions of faith....
The court, in a 67-page opinion, rejected plaintiffs' free speech and association claims, saying in part:
The limitations here are not on the speech for which the Plaintiffs contend they associate, but instead threaten to create a situation where hearers might perceive that not all employees ... of the Plaintiffs practiced what they preached. The danger that others be able to call the Plaintiffs hypocrites is not a significant limitation on Plaintiffs’ speech or right to associate.
The court also rejected plaintiffs' free exercise claims, saying in part:
In the end, the Court cannot find that the evidence presented by the Plaintiffs establishes that the legislature’s purpose was “to challenge the plaintiffs’ religious beliefs” and instead finds that “there was a neutral, secular purpose” for Section 203-e: protecting New Yorkers’ right to make their own decisions about reproduction, including whether to have a child and whether to use birth control....
The court, however, did find that the notice provision amounts to unconstitutional compelled speech and enjoined enforcement of this portion of the law, saying in part:
The notice directed by the statute is language that the Plaintiffs would otherwise not use, and they contend that the prohibitions on discrimination because of “reproductive decision making” undermines their message that the only choices that persons should make on such matters are to carry a child to term, not use birth control, and conduct their sexual lives according to the standards Plaintiffs claim the Bible sets out. While the language in Section 203-e’s notice section does not mention abortion by name, does not suggest to anyone that abortion providers are available, and does not direct anyone to use birth control, the Court finds that the statute compels Defendants to use language they otherwise would not. The notice provision, therefore, is subject to strict scrutiny. No issue of professional speech applies here, which could raise an issue concerning some other level of scrutiny.
