How Would City’s Anti-Discrimination Pregnancy Bill Fare In Court? Some Have Doubts

Mar 29, 2019

On March 12, Pittsburgh City Council unanimously passed a groundbreaking anti-discrimination ordinance to bar discrimination against pregnant women and their partners. The measure had moved quickly – Council passed it two weeks after its introduction – despite providing a significant expansion to existing protections for workers. 

Federal law bars discrimination against women during pregnancy, but Councilor Erika Strassburger, the measure’s main sponsor, said the city rules went farther.

“It covers more types of business, smaller businesses are included,” she said, referring to the fact that it covers employers with five or more workers. And along with women currently carrying a child, “It protects those who are no longer pregnant or are trying to become pregnant.”

It also protects the partners of those women, another expansion.

But the city has struggled to pass similarly progressive bills before. In fact, on the same day the bill passed, a state appeals court knocked down another local anti-discrimination ordinance.

The Commonwealth Court ruled that the city of Pittsburgh could not enforce a 2015 ordinance that prohibited landlords from turning away renters who were using Section 8 vouchers to help pay for their rent. The Apartment Association of Metropolitan Pittsburgh sued the city, and Commonwealth Judge Ellen Ceisler, a Democrat, sided with the landlords.

"We recognize that the City’s enactment of the Ordinance was well-intended,” she wrote.  But participating in Section 8 imposed a number of regulations, and state law “imposes a statutory limitation on [the city’s] authority to enact certain types of legislation. Specifically [the law] prohibits a home-rule municipality from ‘determin[ing] duties, responsibilities or requirements placed upon businesses, occupations and employers.’”

A spokesman for the mayor said they are reviewing the court's decision.

Pregnant and employed

Sarah Schulz could have used the legislation six years ago. Schulz had just moved back to Pittsburgh and got a job as a social worker. Not long after, she became pregnant. Schulz was 17 weeks pregnant when she asked for maternity leave months later.

“And they were like, ‘Oh well, we don’t have maternity leave. If you go out to give birth you’re going to be considered resigning from the job,’” she said. "I was extremely surprised that they didn't have some sort of leave in place specific to pregnant women."

The federal Pregnancy Discrimination Act could have protected Schulz if she had been at the job for more than 12 months. But since she was a new employee, she did not qualify for maternity leave.

Schulz is now a professor at Point Park University, but she spent months being unemployed.

"I went without health insurance in those pretty crucial postpartum months," Schulz said. "I had to move in with family … To be unemployed with a newborn and not have a job to go back to -- it was pretty problematic."

Councilor Erika Strassburger announcing the pregnancy anti-discrimination ordinance.
Credit Ariel Worthy / WESA

The city’s legislation would have required her employers to secure her job while was out for maternity leave. And it expands protections in other ways.

Strassburger gave an example.

"Let's say you're trying to get pregnant and you're going through in vitro fertilization or you're experiencing something that requires a lot of doctor appointments," she said. "You can no longer be discriminated against because of a need to take time off because of those types of appointments either. So it covers a much larger range than what it previously covered."

Potential challenges

But some aren't convinced the law will withstand a challenge, should one be filed. Joe Mistick is a Duquesne University Law professor and a former top-ranking official in the administration of Mayor Sophie Masloff. He said the city has overreached in the past, and this may be another example.

"This places a burden on businesses, and so it's very likely that it will be challenged out of the gate," he said. "The kinds of things that they've been dabbling in may be politically attractive to their supporters, but they're not based in law. They're not well-grounded and as a result, they've been reversed numerous times."

Mistick said if city officials want to make a change, they should go to Harrisburg.

"I'm not saying they're not good ideas, or that they're not justified," he said. But "if they're serious, [city officials] should be spending time in Harrisburg where the power lies."

Alex Halper, the director of government affairs with the Pittsburgh Chamber of Business and Industry, said he understands why Strassburger might want to pass such a bill. But he said his group has already heard from some employers about the ordinance.

A principal worry, he said, is that an employer cannot require an employee to provide medical documentation or "some kind of insight from the medical provider." He says documentation could help employers provide the accommodations for the individual. 

"If there's that very strict firewall, I don't think that's in anyone's best interest," he said. “Another concern that's been raised relates to how caregiver is defined and what, if any, limitations are placed on accommodating a caregiver,” Halper said.

The law was signed March 15 by public safety director Wendell Hissrich, who served as acting mayor while Mayor Bill Peduto was on vacation. A Peduto spokesman said the Commonwealth Court decision did not alter the mayor’s support for the new anti-discrimination bill.