Second Circuit revives free speech challenge to New York anti-discrimination labor law News
Bjoertvedt, CC BY-SA 3.0, via Wikimedia Commons
Second Circuit revives free speech challenge to New York anti-discrimination labor law

The US Court of Appeals for the Second Circuit on Thursday remitted to reconsideration a lawsuit challenging a provision of New York’s Labor Law as violations of the rights to free speech and religion of a crisis pregnancy center.

The court held that CompassCare may proceed with their claims if the judge finds that the Act threatens their “very mission.” Given a 2023 precedent, CompassCare may succeed in its claim that the act is unconstitutional.

The central controversy at the court is the scope of the right to freedom of expressive association. Reviewing previous jurisprudence of the US Supreme Court, the court reiterated that the First Amendment includes an implicit “freedom not to associate,” permitting a voluntary association to exclude or expel a member it does not desire even if it amounts to discrimination. Nonetheless, the right only applies when the member in question “significantly burdens” the group’s expression and the impugned law runs afoul the group’s right.

Crisis center operator CompassCare brought the suit in 2019 along with the National Institute of Family and Life Advocates and First Bible Baptist Church. The plaintiffs are challenging the constitutionality of New York Labor Law Section 203-e, which prohibits employee discrimination based on reproductive choices. The act provides that employers may not “discriminate nor take any retaliatory personnel action against an employee” on the basis of reproductive health decisions.

The plaintiffs allege that the act infringes on First Amendment protections by forcing employers to associate with workers who do not share the same mission and beliefs. Additionally, the act requires employers to outline workers’ rights in employee handbooks. The plaintiffs claim that these provisions amount to compelled speech, thereby violating the First Amendment.

New York City adopted a similar law in 2018, which seeks to prevent employment discrimination based on sexual and reproductive health decisions. A case brought by a crisis pregnancy center in 2020 reintroduced the issue of reproductive health and the First Amendment. The presiding judge held in 2023 that forcing the crisis center to abide by the New York City law would contradict its defining values.

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