Petitioners
International Union, United Automobile, Aerospace, and Agricultural ImplementWorkers of America, UAW, et al.
Respondent
Johnson Controls, Inc.
Petitioners' Claim
That Johnson Controls' "fetal protection policy" is sex discrimination prohibited by the Pregnancy Discrimination Act (PDA).
Chief Lawyer for Petitioners
Marsha S. Berzon
Chief Lawyer for Respondent
Stanley S. Jaspan
Justices for the Court
Harry A. Blackmun (writing for the Court), Anthony M. Kennedy, Thurgood Marshall, Sandra Day O'Connor, William H. Rehnquist, Antonin Scalia, David H. Souter, John Paul Stevens, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
20 March 1991
Decision
Johnson Controls' fetal protection policy was in violation of Title VII of the Civil Rights Act of 1964, as amended by the PDA.
Significance
This decision gave women the opportunity to make their own reasoned decisionsabout pregnancy and dangerous work.
Johnson Controls, Inc. manufactures batteries--a process that utilizes lead as a primary ingredient. Men's and women's exposure to lead may have a negative impact on health, including birth defects in children. Some studies have suggested lead exposure may affect fertility in both men and women.
Before the passage of Title VII of the Civil Rights Act of 1964, Johnson Controls hired men only. Title VII banned this practice. However, once women began working at the company in 1977, it issued an official policy regarding female exposure to lead:
Johnson urged women not to apply for lead-exposed positions if they hoped tobear children. However, it made them eligible for this work provided they signed a statement that they understood the risks, including a higher than normal rate of miscarriage.
During the next five years, eight women with blood levels above 30 microgramsper deciliter--the level considered by the Occupational Safety and Health Administration (OSHA) to be the critical threshold for workers hoping to have children--became pregnant. None of the children born of these pregnancies hadany apparent birth defects or abnormalities. Still, Johnson Controls decidedto exclude women of childbearing age from lead-exposed jobs or positions fromwhich one would be eligible for promotion to a lead-exposed job. The policydefined "women . . . capable of bearing children" as "all women except thosewhose inability to bear children is medically documented."
Women and Children First
Various unions filed a class-action lawsuit claiming that Johnson's fetal protection policy was sex discrimination. Some employees joined them: Mary Craig, a young woman who became sterilized rather than lose her job; Elsie Nason,a 50-year-old divorcee, who had to transfer to a lower-paying but lead-free position; and Donald Penney, who had been denied leave of absence to lower hislead level before fathering a child.
In its 1985 opinion, the district court stressed there was every likelihood that exposure to lead placed a fetus at risk--as well as affected the reproductive abilities of would-be parents. However, the court thought the same amount of lead exposure would affect the fetus more.
Therefore, since the union and its employees had not offered an acceptable alternative policy to protect the fetus, the court found that the company's policy had been a "business necessity" and decided in favor of Johnson Controls.The defeated groups appealed.
Defining "Business Necessity"
The Court of Appeals for the Seventh Circuit asked three questions about fetal protection policies to determine whether they were business necessities. The questions covered whether there was a substantial health risk to the fetus,if that hazard to the fetus was transferred only through women, and whetherthere was "a less discriminatory alternative equally capable of preventing the health hazard to the fetus."
In 1989, the court found that there was no dispute about the first question--lead exposure did present a hazard to a fetus. On the question of whether thefather transmitted a health risk to the fetus, the court ruled the evidence"at best, speculative and unconvincing." As for a less discriminatory plan, the court found that the union and its employees failed to present an alternative.
Johnson Controls' policy was a business necessity and, therefore, was not illegal discrimination. The court also decided that such policies could excludewomen under the bona fide occupational qualification standard (BFOQ) exemption of Title VII, which allowed discrimination if gender was critical to the job. None of the other courts of appeals had held this, however,so the Supreme Court granted certiorari to resolve the conflict.
"Outright and Explicit" Discrimination
The opinion of the Supreme Court, delivered by Justice Blackmun, found Johnson Controls had discriminated against women: "The bias in Johnson Controls' policy is obvious. Fertile men, but not fertile women, are given a choice as towhether they wish to risk their reproductive health for a particular job."
The Court also held that the appeals court's application of the business necessity test was a mistake, because it "is more lenient for the employer" thanthe test required by Title VII. In an earlier decision, Wards Cove Packingv. Atonio (1989), the Supreme Court had ruled that the employee, and notthe employer, bore the burden of proving a discriminatory policy was not a "business necessity." However, this "burden" was applicable only in cases where discrimination was a consequence of a neutral policy--never in cases of explicitly gender-based sex discrimination. To make his point clear, Blackmun quoted the Equal Employment Opportunity Commission (EEOC): "For the plaintiff to bear the burden of proof in a case in which there is direct evidence of a facially discriminatory policy is wholly inconsistent with settled Title VII law . . . bona fide occupational qualification is the better approach."
The BFOQ Considered
Title VII permitted an employer to discriminate on the basis of "religion, sex, or national origin" only when a genuine BFOQ existed that was "reasonably necessary to the normal operation of that particular business or enterprise." Johnson Controls argued that its safety concerns were "reasonably related" and that its fetal protection policy discriminated on the basis of a BFOQ of female sterility.
Blackmun conceded that BFOQ's had sometimes been upheld due to safetyconcerns. Citing a decision in which an airline's mandatory retirement policyhad withstood an age discrimination charge, he explained that the safety concerns had "involved the possibility that, because of age-connected debility,a flight engineer might not properly assist the pilot, and might thereby cause a safety emergency." He stressed, however, a danger must be related to "third parties . . . indispensable to the particular business at issue" to establish a BFOQ. Johnson Controls' policies were not.
None of Your Business
Recalling Dothard v. Rawlinson (1977), Blackmun wrote, "danger to a woman herself does not justify discrimination." Similarly, the risks a pregnantwoman assumed on behalf of her fetus were not her employer's concern. On this point, Blackmun cited a number of lower court cases that upheld the layoffsof pregnant flight attendants "at different points during the first five months of pregnancy . . . to ensure the safety of passengers." Two of these opinions, he noted, "pointedly indicated that fetal, as opposed to passenger, safety was best left to the mother."
In 1978, the PDA provided that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . " The legislative history of the act confirmed that Congressintended to amend Title VII to prohibit employers from "requir[ing] a pregnant woman to stop working at any time during her pregnancy unless she is unable to do her work . . . Congress indicated that the employer may take into account only the woman's ability to get her job done."
Any decision regarding work prior to or during pregnancy, Blackmun concluded,"was reserved for each individual woman to make for herself." The Court dismissed Johnson Controls' more general argument that its "moral and ethical concerns about the welfare of the next generation . . . suffice[d] to establisha BFOQ of female sterility." Such decisions, Blackmun said, "must be left tothe parents . . . rather than the employers . . . Title VII and the PDA simply do not allow a woman's dismissal because of her failure to submit to sterilization."
It is Up to the Women
A question still remained for Johnson Controls about the company's liabilityif fertile women were not excluded from hazardous work. Blackmun conceded that more than 40 states permitted lawsuits to recover for prenatal injuries. However, the right to recover in the cases was uniformly based on negligence oron wrongful death. Johnson Controls had the power, to "comply with the leadstandard developed by OSHA and warn its female employees about the damaging effects of lead."
Therefore, Blackmun rejected the tort liability claim, saying: "If . . . Title VII bans sex-specific fetal protection policies, the employer fully informsthe women of the risk, and the employer has not acted negligently, the basisfor holding an employer liable seems remote at best."
Perhaps anticipating a mixed reaction to this decision, Blackmun concluded that "our holding today that Title VII, as so amended . . . is neither remarkable nor unprecedented. Concern for a woman's existing or potential offspring historically has been the excuse for denying women equal employment opportunities . . . It is no more appropriate for the courts than it is for individualemployers to decide whether a woman's reproductive role is more important toherself and her family than her economic role. Congress has left this choiceto the woman as hers to make."
Related Cases
Fetal Protection Policies
Fetal protection policies are workplace rules which prevent women from takingpart in specific jobs if those women are of childbearing age and fertile. Long before Johnson Controls, the concept of fetal protection policies had become controversial, a fact due in part to the rise of the women's movement during the early 1970s. Because no such restrictions applied to male workers, these policies were thought to be sexual discrimination, and thus a violation of Title VII of the Civil Rights Act of 1964.
Sources
West's Encyclopedia of American Law. St. Paul, MN: West Group, 1998.
International Union, United Automobile, Aerospace, and Agricultural ImplementWorkers of America, UAW, et al.
Respondent
Johnson Controls, Inc.
Petitioners' Claim
That Johnson Controls' "fetal protection policy" is sex discrimination prohibited by the Pregnancy Discrimination Act (PDA).
Chief Lawyer for Petitioners
Marsha S. Berzon
Chief Lawyer for Respondent
Stanley S. Jaspan
Justices for the Court
Harry A. Blackmun (writing for the Court), Anthony M. Kennedy, Thurgood Marshall, Sandra Day O'Connor, William H. Rehnquist, Antonin Scalia, David H. Souter, John Paul Stevens, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
20 March 1991
Decision
Johnson Controls' fetal protection policy was in violation of Title VII of the Civil Rights Act of 1964, as amended by the PDA.
Significance
This decision gave women the opportunity to make their own reasoned decisionsabout pregnancy and dangerous work.
Johnson Controls, Inc. manufactures batteries--a process that utilizes lead as a primary ingredient. Men's and women's exposure to lead may have a negative impact on health, including birth defects in children. Some studies have suggested lead exposure may affect fertility in both men and women.
Before the passage of Title VII of the Civil Rights Act of 1964, Johnson Controls hired men only. Title VII banned this practice. However, once women began working at the company in 1977, it issued an official policy regarding female exposure to lead:
Since not all women who can become mothers wish to become mothers (or will become mothers), it would appear to be illegaldiscrimination to treat all who are capable of pregnancy as though they willbecome pregnant.
Johnson urged women not to apply for lead-exposed positions if they hoped tobear children. However, it made them eligible for this work provided they signed a statement that they understood the risks, including a higher than normal rate of miscarriage.
During the next five years, eight women with blood levels above 30 microgramsper deciliter--the level considered by the Occupational Safety and Health Administration (OSHA) to be the critical threshold for workers hoping to have children--became pregnant. None of the children born of these pregnancies hadany apparent birth defects or abnormalities. Still, Johnson Controls decidedto exclude women of childbearing age from lead-exposed jobs or positions fromwhich one would be eligible for promotion to a lead-exposed job. The policydefined "women . . . capable of bearing children" as "all women except thosewhose inability to bear children is medically documented."
Women and Children First
Various unions filed a class-action lawsuit claiming that Johnson's fetal protection policy was sex discrimination. Some employees joined them: Mary Craig, a young woman who became sterilized rather than lose her job; Elsie Nason,a 50-year-old divorcee, who had to transfer to a lower-paying but lead-free position; and Donald Penney, who had been denied leave of absence to lower hislead level before fathering a child.
In its 1985 opinion, the district court stressed there was every likelihood that exposure to lead placed a fetus at risk--as well as affected the reproductive abilities of would-be parents. However, the court thought the same amount of lead exposure would affect the fetus more.
Therefore, since the union and its employees had not offered an acceptable alternative policy to protect the fetus, the court found that the company's policy had been a "business necessity" and decided in favor of Johnson Controls.The defeated groups appealed.
Defining "Business Necessity"
The Court of Appeals for the Seventh Circuit asked three questions about fetal protection policies to determine whether they were business necessities. The questions covered whether there was a substantial health risk to the fetus,if that hazard to the fetus was transferred only through women, and whetherthere was "a less discriminatory alternative equally capable of preventing the health hazard to the fetus."
In 1989, the court found that there was no dispute about the first question--lead exposure did present a hazard to a fetus. On the question of whether thefather transmitted a health risk to the fetus, the court ruled the evidence"at best, speculative and unconvincing." As for a less discriminatory plan, the court found that the union and its employees failed to present an alternative.
Johnson Controls' policy was a business necessity and, therefore, was not illegal discrimination. The court also decided that such policies could excludewomen under the bona fide occupational qualification standard (BFOQ) exemption of Title VII, which allowed discrimination if gender was critical to the job. None of the other courts of appeals had held this, however,so the Supreme Court granted certiorari to resolve the conflict.
"Outright and Explicit" Discrimination
The opinion of the Supreme Court, delivered by Justice Blackmun, found Johnson Controls had discriminated against women: "The bias in Johnson Controls' policy is obvious. Fertile men, but not fertile women, are given a choice as towhether they wish to risk their reproductive health for a particular job."
The Court also held that the appeals court's application of the business necessity test was a mistake, because it "is more lenient for the employer" thanthe test required by Title VII. In an earlier decision, Wards Cove Packingv. Atonio (1989), the Supreme Court had ruled that the employee, and notthe employer, bore the burden of proving a discriminatory policy was not a "business necessity." However, this "burden" was applicable only in cases where discrimination was a consequence of a neutral policy--never in cases of explicitly gender-based sex discrimination. To make his point clear, Blackmun quoted the Equal Employment Opportunity Commission (EEOC): "For the plaintiff to bear the burden of proof in a case in which there is direct evidence of a facially discriminatory policy is wholly inconsistent with settled Title VII law . . . bona fide occupational qualification is the better approach."
The BFOQ Considered
Title VII permitted an employer to discriminate on the basis of "religion, sex, or national origin" only when a genuine BFOQ existed that was "reasonably necessary to the normal operation of that particular business or enterprise." Johnson Controls argued that its safety concerns were "reasonably related" and that its fetal protection policy discriminated on the basis of a BFOQ of female sterility.
Blackmun conceded that BFOQ's had sometimes been upheld due to safetyconcerns. Citing a decision in which an airline's mandatory retirement policyhad withstood an age discrimination charge, he explained that the safety concerns had "involved the possibility that, because of age-connected debility,a flight engineer might not properly assist the pilot, and might thereby cause a safety emergency." He stressed, however, a danger must be related to "third parties . . . indispensable to the particular business at issue" to establish a BFOQ. Johnson Controls' policies were not.
None of Your Business
Recalling Dothard v. Rawlinson (1977), Blackmun wrote, "danger to a woman herself does not justify discrimination." Similarly, the risks a pregnantwoman assumed on behalf of her fetus were not her employer's concern. On this point, Blackmun cited a number of lower court cases that upheld the layoffsof pregnant flight attendants "at different points during the first five months of pregnancy . . . to ensure the safety of passengers." Two of these opinions, he noted, "pointedly indicated that fetal, as opposed to passenger, safety was best left to the mother."
In 1978, the PDA provided that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . " The legislative history of the act confirmed that Congressintended to amend Title VII to prohibit employers from "requir[ing] a pregnant woman to stop working at any time during her pregnancy unless she is unable to do her work . . . Congress indicated that the employer may take into account only the woman's ability to get her job done."
Any decision regarding work prior to or during pregnancy, Blackmun concluded,"was reserved for each individual woman to make for herself." The Court dismissed Johnson Controls' more general argument that its "moral and ethical concerns about the welfare of the next generation . . . suffice[d] to establisha BFOQ of female sterility." Such decisions, Blackmun said, "must be left tothe parents . . . rather than the employers . . . Title VII and the PDA simply do not allow a woman's dismissal because of her failure to submit to sterilization."
It is Up to the Women
A question still remained for Johnson Controls about the company's liabilityif fertile women were not excluded from hazardous work. Blackmun conceded that more than 40 states permitted lawsuits to recover for prenatal injuries. However, the right to recover in the cases was uniformly based on negligence oron wrongful death. Johnson Controls had the power, to "comply with the leadstandard developed by OSHA and warn its female employees about the damaging effects of lead."
Therefore, Blackmun rejected the tort liability claim, saying: "If . . . Title VII bans sex-specific fetal protection policies, the employer fully informsthe women of the risk, and the employer has not acted negligently, the basisfor holding an employer liable seems remote at best."
Perhaps anticipating a mixed reaction to this decision, Blackmun concluded that "our holding today that Title VII, as so amended . . . is neither remarkable nor unprecedented. Concern for a woman's existing or potential offspring historically has been the excuse for denying women equal employment opportunities . . . It is no more appropriate for the courts than it is for individualemployers to decide whether a woman's reproductive role is more important toherself and her family than her economic role. Congress has left this choiceto the woman as hers to make."
Related Cases
- Ward's Cove Packing v. Atonio, 490 U.S. 642 (1989).
- Radovanic v. Centex Real Estate Corporation, 767 F.Supp. 1322 (W.D.N.C. 1991).
- Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (1996).
Fetal Protection Policies
Fetal protection policies are workplace rules which prevent women from takingpart in specific jobs if those women are of childbearing age and fertile. Long before Johnson Controls, the concept of fetal protection policies had become controversial, a fact due in part to the rise of the women's movement during the early 1970s. Because no such restrictions applied to male workers, these policies were thought to be sexual discrimination, and thus a violation of Title VII of the Civil Rights Act of 1964.
Sources
West's Encyclopedia of American Law. St. Paul, MN: West Group, 1998.
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