The fundamental right to expressive association first emerged in NAACP v. Alabama ex rel. Patterson,1 a case that shielded a civil rights organization from forced disclosure of its membership.2 In the following years, some have contested the right due to its growing tension with antidiscrimination laws.3 Recently, in CompassCare v. Hochul,4 the Second Circuit held that New York’s law prohibiting employment discrimination based on an employee’s reproductive health choices may violate an employer’s right to expressive association.5 In holding that expressive association rights extend to the employment context, the Second Circuit diverged from precedent and minimized important differences between voluntary associations and employment relationships. Additionally, the Second Circuit’s test for expressive association claims excessively defers to employers seeking to immunize themselves from antidiscrimination law in cases where its protections are most needed.
Signed in November 2019,6 New York Labor Law § 203-e7 (the Act) prevents employers “from accessing an employee’s personal information regarding . . . reproductive health decision making” and from discriminating based on these decisions.8 Further, it requires that any employer who issues “an employee handbook . . . must include in the handbook notice of employee rights and remedies under [the Act].”9
Thereafter, CompassCare Pregnancy Services, the National Institute of Family and Life Advocates (NIFLA), and First Bible Baptist Church (First Bible) sued New York officials on First Amendment and vagueness grounds, seeking declaratory and injunctive relief.10 CompassCare, “a pregnancy care center,” “provides its services . . . pursuant to its pro-life and religious viewpoint.”11 It requires that its staff “believe in and agree to abide by its positional statements on abortion . . . [and] birth control”12 so that “it will be able to spread an authentic message . . . and reduce the perceived need for abortion.”13 NIFLA, a national organization of “pregnancy care centers,”14 has New York members that “require their employees . . . to assent to and personally live by . . . organizational codes of conduct, positional statements, and/or statements of faith regarding pregnancy . . . [and] abortion.”15 First Bible “believes that abortion constitutes the unjustified, unexcused taking of unborn human life,”16 and refuses to “hire or retain any . . . employee . . . who” does not live according to “its statement of faith.”17
The district court granted the State’s motion to dismiss the expressive association, free exercise, religious autonomy, and vagueness claims, and most of the free speech claims.18 The court concluded that the State “ha[d] a legitimate interest”19 and did not “significant[ly] restrict[] . . . [the plaintiffs’] associational rights.”20 It dismissed the free exercise claim because it determined that the Act was “generally applicable”21 and not motivated by animus.22 The court noted that the First Amendment does not “offer[] a blanket exception to religious organizations in . . . hiring and firing.”23 It found that the Act’s examples of reproductive health decisionmaking were sufficiently specific.24 As to speech, the court found that the waiver provision was content neutral.25
The district court denied the State’s motion to dismiss the claims about the Act’s notice provision and entered a preliminary injunction barring its enforcement.26 Applying strict scrutiny, the court held that the plaintiffs were likely to succeed in arguing that the notice requirement compelled speech and was too broad because less restrictive means were available to apprise employees of their rights.27 After discovery, the parties cross-moved for summary judgment as to the notice provision.28 The court granted the plaintiffs’ motion and permanently enjoined enforcement of the provision.29 The parties filed appeals, which were held in abeyance pending the decision in Slattery v. Hochul,30 a Second Circuit case raising similar challenges to the Act.31
After the Second Circuit decided Slattery, it vacated the dismissal of CompassCare’s expressive association claim and the grant of summary judgment as to the notice provision, but it affirmed the dismissal of the free speech and free exercise claims.32 Writing for the panel, Judge Merriam33 applied Zauderer v. Office of Disciplinary Counsel,34 in which mandatory commercial disclosures of “purely factual and uncontroversial information” were not subject to strict scrutiny.35 The court held that disclosing rights and remedies available under New York law — while potentially reflecting a “controversial” policy judgment — “[wa]s not itself controversial”36 and “d[id] not require alter[ing]” protected speech in the handbook.37 The court remanded because the outcome of each plaintiff’s expressive association claim would determine whether the notice provision applies.38
As to free speech and free exercise, the Second Circuit reaffirmed Slattery.39 It found that employment decisions were not “sufficient[ly] communicative . . . to bring the First Amendment into play.”40 Similarly, it found that “the obligation to comply with a valid and neutral law of general applicability” did not give rise to a free exercise claim.41
As to expressive association, the Second Circuit began by discussing relevant Supreme Court precedent.42 In Roberts v. United States Jaycees,43 the Court held that the First Amendment supported a “right to associate with others,”44 which “plainly presuppose[d] a freedom not to associate.”45 Further, in Boy Scouts of America v. Dale,46 the Court held that the “freedom not to associate”47 could, in some instances, permit groups to exclude members even where doing so would violate antidiscrimination laws.48 The Dale Court devised a three-part test to determine whether an antidiscrimination law violates the right to expressive association: First, the court “determine[s] whether the group engages in ‘expressive association’”49 and “defer[s] to an association’s assertions regarding the nature of its expression.”50 Second, the court considers “whether [a protected class member’s] presence . . . would significantly burden” the group’s expression, again “defer[ring] to” the group.51 But Dale cautioned that “an expressive association” could not “erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message.”52 Third, if the court finds a burden, it asks whether the state’s interests outweigh the competing expressive interest.53
After reviewing these precedents, the Second Circuit noted that “[t]he Supreme Court has never explicitly addressed whether, and to what extent, an employer has a right of expressive association with respect to its paid employees.”54 The Court has instead “considered the relationships among members of voluntary associations.”55 The State asked the Second Circuit not to extend the right to employment, a decision the court had not previously been asked to make.56 Rather, in a prior case, the court had “implicitly assumed without deciding . . . that employers enjoy at least some right to expressive association.”57 And in Slattery, the Second Circuit had “applied Dale to hold that an anti-abortion pregnancy center plausibly stated” an expressive association claim.58 In CompassCare, the court interpreted this “portion[] of the opinion” as “necessary to [the] result.”59 Thus, the court concluded it could not “hold that employers have no freedom of expressive association”; it had to consider “[t]he scope of [their] freedom . . . in light of Slattery.”60
The Second Circuit declined to hold that employers’ expressive association rights equaled those of voluntary membership organizations.61 To the contrary, it noted that there are “meaningful differences between relationships among members of voluntary organizations and relationships between employers and employees,” including that “[e]mployment relationships are contractual,” “[e]mployees rely on their jobs for their livelihoods,” “significant power imbalances often exist between employers and employees,”62 and “employment . . . relationships are heavily regulated.”63 Accordingly, the court stated that fully extending Dale to the employment context “could destabilize” antidiscrimination law.64
The court held that an employer “must show that the Act threatens its very mission . . . in the context of a specific employment decision” to proceed with an expressive association claim.65 This showing would be based on “the responsibilities of the position” –– such as “whether it is client-facing” or “involves . . . speaking for the organization” –– and the specific “conduct or attribute of the employee that renders the[ir] employment . . . a threat to the employer’s mission.”66 The court then asks whether the state interests outweigh the burden on the employer.67 The court remanded, asking “each Plaintiff . . . to demonstrate that it meets the relevant standard.”68
The Second Circuit’s extension of expressive association rights to the employer-employee relationship departs from other federal courts and permits invidious discrimination in the workplace. The differences the court identified between employment and nonemployment contexts are at odds with its extension of the right and the test it derived for a sufficient claim. That test opens the door for courts to defer excessively to employers’ assessments of what would burden their expression. Claims of this nature would erode the protections of antidiscrimination law.
The Second Circuit found that expressive association rights extend to the employment context despite several federal courts’ refusal to do so.69 In Hishon v. King & Spalding,70 the Supreme Court rejected an employer’s argument that “the application of Title VII” to the employer’s choice not to promote a woman lawyer to partner “would infringe constitutional rights of expression or association,”71 as those rights do not permit “[i]nvidious private discrimination.”72 The Court reaffirmed Hishon in Wisconsin v. Mitchell73 and New York State Club Ass’n v. City of New York.74 And unlike the activity of voluntary membership organizations, the Court has not described employment decisions as “inherent[ly] expressive[].”75 Accordingly, lower courts in several discrimination cases have not extended expressive association rights to employment.76 For example, in a case involving Title VII77 claims against a religious school, an Indiana district court rejected the school’s freedom of association defense, noting that “Dale did not arise from the employment context” and that “the Supreme Court has explicitly rejected a freedom of association defense in the employment context.”78 In defining employers’ expressive association rights, CompassCare cited Slattery despite its tacit reasoning79 and tension with Hishon.80
Extending expressive association rights to the employment relationship conflicts with the Second Circuit’s express recognition of the differences between employment and nonemployment contexts. The court discussed “meaningful differences” between voluntary associations and employment relationships, noting that the latter are governed by contracts, power dynamics, and state and federal regulations.81 Employment, according to the court, is also “central to the well-being of the nation and its citizens.”82 But allowing employers to allege violations of expressive association rights exacerbates power differentials and undermines laws protecting employees from discrimination.83
Further, the Second Circuit’s test for whether an antidiscrimination law violates an employer’s expressive association right only superficially reflects the differences the court identified. The court attempted to cabin its extension of the doctrine — and distinguish its inquiry from Dale — by requiring that the employment decision compromise the organization’s “very mission,”84 rather than “merely . . . impair[ing]” the organization’s “expressive activity.”85 But this distinction is only meaningful if courts can reliably home in on an organization’s true “mission.”
The test does not equip courts to make such a determination. The Second Circuit enumerated factors to assess how an employment decision may impact an employer’s mission,86 but it did not define the contours of what an employer’s mission is. Language such as “very mission” and “structure and identity”87 offers minimal guidance to lower courts applying the right to the employment context. Further, the court did not clarify the degree of deference owed to employers on the question of their mission. It “note[d] that First Bible d[id] not allege that anti-abortion advocacy [wa]s central to its mission,”88 suggesting that an employer’s characterization of its mission does carry weight. As a result, discriminatory employers may be encouraged to define their missions broadly to claim that opposition to particular protected classes is central to their work.89 This is true even if the organization was not formed to oppose the conduct that the law protects. As with Dale, deference makes it “hard to imagine a group that wants to discriminate that cannot avoid the application of state and local antidiscrimination laws.”90
First Bible’s claims exemplify the importance of denying or limiting an employer’s expressive association right to make adverse employment decisions. Religious employers like First Bible can already claim a “ministerial exception” such that courts cannot intervene in “employment disputes involving” employees “holding certain important positions with . . . religious institutions.”91 An expressive association right could cover a broader class of employees and bar their employment discrimination claims.92 First Bible is a house of worship that offers outreach, schooling, and recreational programs.93 Even if it also expressively advocates against abortion, it is not an organization formed to oppose abortion.94 Thus, if organizations like First Bible can proceed beyond the pleading stage under the Second Circuit’s test, the inquiry into an organization’s mission appears rather hollow.
An expansive theory of expressive association in the employment context risks undoing protections against invidious workplace discrimination. This risk is not theoretical. The controversy and stigma surrounding reproductive health care in the United States has resulted in adverse employment decisions.95 Allowing employers to claim expressive association rights could enable religiously affiliated, for-profit organizations with broad mission statements to refuse to hire people with protected characteristics because their presence would purportedly impair the organization’s religious message.96 In fact, appellants have cited 303 Creative LLC v. Elenis97 to challenge their “reject[ed] . . . expressive association claims.”98 Secular employers could wield expansive expressive association rights, too.99 While one may contend that members of protected classes would not want to work for these employers, antidiscrimination law emerged in response to this issue.100 As the Second Circuit itself acknowledged, individuals may lack the privilege to choose whether and where they work, as they may “rely on their jobs for their livelihoods.”101 Expansive expressive association rights threaten the ability of antidiscrimination law to protect and provide these employment opportunities.