Seyfarth Synopsis: On February 27th, 2023, the Second Circuit Court of Appeals (Second Circuit) issued its decision in Slattery v. Hochul, holding that Evergreen Association, Inc., a non-profit organization can challenge New York state officials in a suit seeking to enjoin enforcement of New York Labor Law 203-e. New York Labor Law 203-e, popularly known as the “Boss Bill”, prohibits employers from taking adverse employment actions against employees based on their reproductive health decisions. The Second Circuit held that the law unconstitutionally interferes with the Evergreen’s expressive association rights and remanded the case to the district court for further consideration.


  1. History of New York Labor Law 203-e:

The New York legislature enacted Senate Bill S660, popularly referred to as the “Boss Bill”, and codified as New York Labor Law 203-e on November 8, 2019. The law provides that “[a]n employer shall not . . . discriminate nor take any retaliatory personnel action against an employee with respect to compensation, terms, conditions, or privileges of employment because of or on the basis of the employee’s or dependent’s reproductive health decision making.” The Boss Bill additionally prohibits an employer from accessing an employee’s personal information regarding the employee’s reproductive health decision making.

The Boss Bill is applicable to all employers and does not contain an express exemption for religious employers or for small employers who have objections to abortion.

The Boss Bill allows for government enforcement and vests the Commissioner of New York’s Department of Labor with the authority to enforce all provisions of the statute. The Commissioner may issue orders to employers directing compliance. The statute also creates a private right of action; an employee is thus able to bring a civil action in any court of competent jurisdiction against an employer alleged to have violated the provisions of the Boss Bill and allows a prevailing employee to seek damages, including attorney’s fees, injunctive relief, reinstatement and/or liquidated damages.

  • Factual Background:

Evergreen Association, Inc., operating as Expectant Mother Care and EMC FrontLine Pregnancy Center is a New York based non-profit organization that operates a network of pregnancy crisis centers. These centers discourage abortion and provide pregnant women with ultrasounds, counseling, and information on adoption. Based on its moral and religious objections to abortion, Evergreen hires only employees who can credibly communicate to patients its “opposition to abortion and to sexual relationships outside of marriage and related use of potentially abortifacient contraception.” Evergreen asks each prospective employee whether they are pro-choice or pro-life and it will not consider for employment an applicant who expresses support for abortion.

In January 2020, Evergreen filed a complaint in the Northern District of New York for declaratory and injunctive relief, naming state officials as defendants in their official capacities. Evergreen sought a declaration that the Boss Bill was unconstitutional and an injunction prohibiting the state from enforcing the Boss Bill against Evergreen.

  • Procedural History:

At the district court level, Evergreen argued that the statute was unconstitutional, arguing that the statute violated its First and Fourteenth Amendment rights to freedom of expressive association, freedom of speech, free exercise of religion, and its Fourteenth Amendment right to due process due to vagueness.

The state moved to dismiss the complaint in its entirety, arguing that the Boss Bill was a constitutional exercise of its police power in furtherance of the state’s interest in nondiscrimination. The state argued that in passing the Boss Bill, it aimed to protect its citizens’ right to privacy in the confidentiality of their medical information and autonomy in decisions related to their body, health, and family planning. The state also argued that the statute was generally applicable to all employers, including religious employers.

The district court agreed with the state and dismissed all of Evergreen’s claims. First, the district court found that the law was both religion-neutral and generally applicable and that it did not impermissibly target religious conduct. Applying rational basis review, the district court concluded that “the statute bears a rational relationship” to the state’s interests in protecting “individuals’ right to privacy and personal autonomy as it relates to health-care decisions surrounding reproduction” and “in protecting against workplace discrimination.”

Second, the district court determined that the statute was content-neutral and did not abridge the freedom of speech because the regulations of speech are reasonable, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of information.

Third, the district court found that Evergreen failed to state a claim that the Boss Bill infringed its right to freedom of expressive association. While the court found that Evergreen adequately alleged that it engaged in expressive association, the court found that requiring Evergreen to engage with employees or prospective employees who do not share its views on abortion was merely an incidental limitation on its associational rights and did not “place a restriction on their ability to advocate against abortion or contraception.” The court reasoned that this limitation posed only a “danger that others could call the Plaintiffs hypocrites” and, “[g]iven the way that our political discourse currently works, such allegations are surely a feature of advocacy in the highly charged area in which the Plaintiffs engage.” The district court ruled that the statute “needs only to survive rational basis scrutiny” and that it “does so.”

Finally, the district court rejected Evergreen’s claim that the statute was unconstitutionally vague. The district court held that an “ordinary employer” would understand that the statute prohibits “accessing an employee[’s] medical record to determine whether that employee had used birth control or not, or had an abortion or carried a child to term,” and “discrimination against or retaliation against an employe[e] for decisions made about birth control or pregnancy.”

Second Circuit Decision:

Evergreen appealed this decision and upon de novo review, the Second Circuit affirmed the district court’s ruling as to Evergreen’s freedom of speech, free exercise of religion, and vagueness claims. However, it reversed the district court’s decision on the expressive association claim, holding that Evergreen was engaged in expressive activity, and also plausibly alleged that the Boss Bill significantly, and not incidentally, burdens its right to freedom of expressive association.

The Second Circuit noted that in Roberts v. U.S. Jaycees, the U.S. Supreme Court recognized a right to associate for the purpose of engaging in First Amendment-protected activities. These expressive association rights include an implicit right to engage in activities protected by the First Amendment and a corresponding right to associate with others in the pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.

Next, the court considered whether the Boss Bill “significantly burdens” Evergreen’s right to freedom of expressive association, such that strict scrutiny analysis would apply—and not rational basis, as the district court determined.

Quoting Roberts, the court stated that a “regulation that forces the group to accept members it does not desire … may impair the ability of the original members to express only those views that brought them together.” Applying this, the Second Circuit found that the burden placed on Evergreen was substantial. The court reasoned that the right to expressive association allows Evergreen to determine that its message will be effectively conveyed only by employees who sincerely share its views. To decide whether someone holds certain views—and therefore would be a reliable advocate—Evergreen asks whether that person has engaged or will engage in conduct antithetical to those views. According to the court, Evergreen plausibly alleged that, by foreclosing Evergreen’s ability to reject employees whose actions suggest that their beliefs are different from the message it is trying to convey, the Boss Bill severely burdens Evergreen’s First Amendment right to freedom of expressive association and as such, strict scrutiny is applicable.

Under a strict scrutiny analysis, the court stated that the burden is on the state to show that the regulation was adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. At this early stage in the litigation, the court found that the state had not met its burden of showing that the Boss Bill is the least restrictive means to achieve a compelling objective.

The court went even further to state that even if preventing discrimination based on one’s choice to engage in certain, legally authorized conduct is a compelling state interest, that is not enough to overcome the expressive association rights of an organization such as Evergreen. On one side of the scale is the individual’s right not to be discriminated against for certain reproductive choices, such as having an abortion. On the other side is the First Amendment right of a particular association—in this case, Evergreen—to advocate against that conduct. The court noted that Evergreen’s beliefs about the morality of abortion are “its defining values; forcing it to accept as members those who engage in or approve of [that] conduct would cause the group as it currently identifies itself to cease to exist.” Accordingly, the balancing of interests favors the expressive association that opposes the conduct the state would protect against discrimination. Thus, the Second Circuit held that the district court erred in dismissing expressive association claim and remanded the claim for further considerations.

This case comes on the heels of Dobbs v. Jackson Women’s Health Organization, the 2022 Supreme Court decision overturning Roe v. Wade, which guaranteed a constitutional right to abortion. It remains to be seen to what extent the Slattery decision may impact the application of the Boss Bill or other types of anti-discrimination legislation going forward. This case is one for employers to watch, and particularly, to look out for whether this issue will be revisited by the U.S. Supreme Court.