The doctrine of expressive association, which emerged from the landmark case NAACP v. Alabama ex rel. Patterson, protects organizations from compelled disclosure of their membership when such disclosure would infringe on their First Amendment rights. While initially framed within the context of voluntary membership organizations, recent jurisprudence has extended the scope of expressive association to the employment context, raising complex tensions with anti-discrimination laws. The Second Circuit’s decision in CompassCare v. Hochul exemplifies this evolving legal landscape by holding that New York’s law prohibiting employment discrimination based on reproductive health decisions may violate an employer’s expressive association rights. This article critically examines the Second Circuit’s expansion of expressive association into the employment arena, the legal reasoning employed, and the broader implications for anti-discrimination law and employee protections.
Background: New York Labor Law § 203-e and the CompassCare Litigation
New York Labor Law § 203-e, enacted in November 2019, prohibits employers from accessing employees’ personal information concerning reproductive health decisions and forbids discrimination based on those decisions. The statute also mandates that employers include notices of employee rights and remedies under the law in employee handbooks.
Shortly after the law’s enactment, CompassCare Pregnancy Services—a pro-life pregnancy care center—alongside the National Institute of Family and Life Advocates (NIFLA) and First Bible Baptist Church, filed suit against New York officials. These plaintiffs argued that the law infringed their First Amendment rights, including freedom of expressive association, free exercise of religion, and free speech, as well as raising vagueness challenges.
CompassCare and its co-plaintiffs maintain that their organizations are founded on specific religious and ideological beliefs opposing abortion and that their expressive missions require that employees share and embody those beliefs. They contend that New York’s law effectively forces them to employ individuals whose personal reproductive health choices conflict with their organizational ethos, thereby burdening their expressive association rights.
Lower Court Proceedings
The district court dismissed most of the plaintiffs’ claims, holding that the state’s interests in preventing discrimination outweighed the asserted constitutional rights. It recognized New York’s legitimate interest and found that the statute did not significantly infringe associational rights. The court also upheld the law’s general applicability, rejecting free exercise claims on the ground that the statute was neutral and not motivated by religious animus.
However, the court issued a preliminary injunction against the law’s notice provision, finding it likely compelled speech in violation of the First Amendment due to its broad scope and less restrictive alternatives.
Following discovery, the court permanently enjoined enforcement of the notice requirement. Appeals were held in abeyance pending the decision in Slattery v. Hochul, a related Second Circuit case.
The Second Circuit’s Decision and Its Legal Reasoning
After the Slattery ruling, the Second Circuit vacated dismissal of the CompassCare plaintiffs’ expressive association claim and the summary judgment on the notice provision, while affirming dismissal of free speech and free exercise claims.
Expressive Association Extended to Employment
Significantly, the Second Circuit held that expressive association rights extend to the employment context. This marks a departure from prior precedent, which typically limited expressive association protections to voluntary membership organizations rather than contractual employer-employee relationships.
The court acknowledged that the Supreme Court has not explicitly addressed whether expressive association applies to employers and their employees. It highlighted the Roberts v. United States Jaycees and Boy Scouts of America v. Dale frameworks, which protect groups’ rights to exclude members when inclusion would significantly burden the group’s expressive activity, but cautioned that these cases involved voluntary associations—not employment relationships.
Meaningful Differences Between Voluntary Associations and Employment
The Second Circuit recognized important differences between voluntary associations and employment, including the contractual nature of employment, the dependency of employees on their jobs for livelihood, significant power imbalances, and the regulatory framework governing employment. The court warned that a wholesale extension of Dale to the employment context could destabilize anti-discrimination law.
To address these concerns, the court crafted a heightened standard for employers claiming expressive association rights: the employer must demonstrate that the challenged employment decision threatens the organization’s “very mission” in the context of a specific employment action. Factors such as the employee’s responsibilities, client-facing roles, or capacity to speak for the organization are relevant.
Balancing Employer Rights and State Interests
If the employer makes the requisite showing, the court then weighs whether the state’s compelling interests in enforcing anti-discrimination laws outweigh the burden on the employer’s expressive association rights.
The Second Circuit remanded the case for factual determinations as to whether each plaintiff met this stringent standard.
Critical Analysis and Implications
The Second Circuit’s extension of expressive association to the employment context raises substantial concerns.
Legal Tensions with Established Precedent
Several federal courts, including the Supreme Court in Hishon v. King & Spalding, have rejected associational defenses to anti-discrimination claims in employment, emphasizing that constitutional rights do not sanction invidious private discrimination. Unlike voluntary organizations, employment decisions are not inherently expressive; thus, extending expressive association risks undermining settled law.
The Court’s Ambiguous Test
While the Second Circuit attempts to confine expressive association claims in employment by requiring a “very mission” threat, it fails to provide concrete criteria for defining an organization’s mission or the degree of deference owed to employers. This ambiguity invites potential abuse, as employers may broadly characterize their missions to justify discriminatory practices.
Moreover, deference to employer assertions echoes the problematic aspects of Dale, where courts were cautioned against allowing mere claims of expressive burden to shield discrimination.
Impact on Workplace Anti-Discrimination Protections
Expanding expressive association rights to employment risks eroding statutory protections for employees, particularly in contentious areas like reproductive health. Employers with religious affiliations or broad mission statements could potentially exclude employees whose personal decisions or identities conflict with the employer’s expressive goals.
This concern is exemplified by First Bible Baptist Church, which, while providing religious outreach, education, and recreation, may use expressive association claims to bar employees even if opposition to abortion is not its core mission. The risk of diluting protections against workplace discrimination—particularly for vulnerable employees dependent on their jobs—is real and urgent.
Broader Social and Legal Context
Given the ongoing national debates surrounding reproductive rights, the potential for adverse employment decisions based on health choices is heightened. The CompassCare decision, by legitimizing expressive association claims in employment, may embolden employers to circumvent anti-discrimination laws under the guise of protecting their expressive missions.
Conclusion
The Second Circuit’s decision in CompassCare v. Hochul reflects an unsettling expansion of expressive association rights into the employment sphere. Despite acknowledging the fundamental differences between voluntary associations and employer-employee relationships, the court endorsed a vague and deferential test that risks enabling discriminatory practices under constitutional cover.
As courts grapple with this novel application, policymakers and advocates must remain vigilant to ensure that anti-discrimination protections are not hollowed out by expansive interpretations of expressive association. The balance between safeguarding expressive freedoms and preventing workplace discrimination remains a pivotal challenge in contemporary First Amendment jurisprudence.
FAQs
1. What is the right to expressive association under the First Amendment?
The right to expressive association protects groups’ freedom to associate or not associate with others to express shared beliefs without government interference.
2. How does CompassCare v. Hochul affect employment discrimination laws?
The case explores whether employers can claim expressive association rights to avoid complying with laws that prohibit discrimination based on reproductive health choices.
3. Does the First Amendment protect employers from anti-discrimination laws?
Courts have historically limited this protection in employment, but CompassCare raises new questions about the extent of this protection.
4. What is the significance of New York Labor Law § 203-e in this case?
This law prohibits employers from discriminating against employees based on reproductive health decisions and requires employee handbooks to inform workers about these rights.
5. How do courts balance employers’ expressive association rights and anti-discrimination protections?
Courts apply tests that weigh the employer’s claimed expressive mission against the state’s interest in preventing discrimination.