A St. Louis city ordinance took effect Feb. 13 protecting employees against discrimination on the basis of their “reproductive health decisions.” Ordinance 70459 prohibits employers from taking any adverse employment action — such as termination or demotion — against an employee due to the employee’s decision to use drugs, devices or medical services related to reproductive health that the employer does not agree with, including contraceptives, fertility treatments or abortion.
The ordinance also protects employees from discrimination on the basis of pregnancy status as well as from discrimination based upon a reproductive health decision made by an employee’s dependent. Employers are also prohibited from making pre-employment statements or inquiries related to reproductive health decisions.
Several carve-outs apply to religious organizations, including a provision specifying that nothing in the ordinance requires such organizations to provide reproductive health benefits of any kind to their employees. Likewise, religious employers are expressly allowed to prohibit reproductive health services on their property and to refuse to provide or pay for reproductive health services for their employees.
Despite these provisions, several religious employers have expressed concerns about the ordinance’s potential threat to religious beliefs and free-speech rights. This includes a concern that a portion of the ordinance could prevent alternative-to-abortion agencies (often known as crisis pregnancy centers) from making statements about reproductive health decisions. A Missouri state representative has introduced a bill intended to curb any municipality’s ability to enact ordinances that interfere with or restrict the ability of alternative-to-abortion agencies from engaging in free speech, which could effectively null and void Ordinance 70459, if passed. Missouri Gov. Eric Greitens has also pledged to assist in repealing the ordinance.
For now, the ordinance remains in place, and employers should keep in mind that any employment decision should be based upon a legitimate, nondiscriminatory rationale regardless of an employee’s protected characteristics.