Philadelphia first claimed CSS violated the Fair Practices Ordinance (FPO). Pet.App.149a-150a. The
FPO (as incorporated into city contracts) prohibits “discriminat[ion] based on” characteristics including
marital status, familial status, mental disability, and sexual orientation in “public accommodation.”
Pet.App.149a-150a; Phila. Code § 9-1106 (2016). But foster care has never been treated as a “public accommodation” in Philadelphia. J.A.150-151, 183-185, 305-316. Instead, the City permits—indeed, expects—private agencies to assess the marital status, familial status, and mental disabilities of potential foster parents. See pp. 7-8, supra; 55 Pa. Code § 3700.64; J.A.98-100, 236-238. The FPO also applies to “the City, its departments, boards and commissions,” Phila. Code § 9-1102(1)(w), but Philadelphia does not apply the FPO to its own foster care operations. J.A.150-151. In fact, Philadelphia considers disability and race when making foster placements. J.A.305-316.