1. Did Johnson Controls’ “fetal-protection policy” discriminate against women?

2. JCI’s policy was adopted only after eight employees became pregnant but maintained blood lead levels exceeding those set by the CDC as critical. Considering JCI’s moral and ethical obligations to the unborn fetuses and its possible extensive liability in future lawsuits, should not the BFOQ defense be available to it?

3. Was JCI’s policy within the so-called safety exception to the BFOQ?

Johnson Controls, Inc. (JCI), manufactures batteries. A primary ingredient in the battery manufacturing process is lead. Occupational exposure to lead entails health risks, including the risk of harm to any fetus carried by a female employee. After eight of its employees became pregnant while maintaining blood lead levels exceeding those set by the Centers for Disease Control (CDC) as dangerous for a worker planning to have a family, JCI announced a new personnel policy. This policy barred all women, except those whose infertility was medically documented, from jobs involving actual or potential lead exposure exceeding OSHA standards. Petitioners brought a class action in the district court, claiming that the policy constituted sex discrimination violative of Title VII of the Civil Rights Act of 1964, as amended. The court granted summary judgment for JCI, and the Court of Appeals affirmed. The case was appealed to Supreme Court.

JUDICIAL OPINION

BLACKMUN, J.… The bias in Johnson Controls’ policy is obvious. Fertile men, but not fertile women, are given a choice as to whether they wish to risk their reproductive health for a particular job. Section 703(a) of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U.S.C. § 2000e- 2-(a), prohibits sex-biased classifications in terms and conditions of employment, in hiring and discharging decisions, and in other employment decisions that adversely affect an employee’s status. Respondent’s fetal-protection policy explicitly discriminates against women on the basis of their sex. The policy excludes women with childbearing capacity from lead-exposed jobs and so creates a facial classification based on gender.…

First, Johnson Controls’ policy classifies on the basis of gender and childbearing capacity, rather than fertility alone. Respondent does not seek to protect the unconceived children of all its employees. Despite evidence in the record about the debilitating effect of lead exposure on the male reproductive system, Johnson Controls is concerned only with the harms that may befall the unborn offspring of its female employees.… … We hold that Johnson Controls’ fetal-protection policy is sex discrimination forbidden under Title VII unless respondent can establish that sex is a “bona fide occupational qualification.”

Under § 703(e)(1) of Title VII, an employer may discriminate on the basis of “religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” We therefore turn to the question whether Johnson Controls’ fetal-protection policy is one of those “certain instances” that come within the BFOQ exception. The BFOQ defense is written narrowly, and this Court has read it narrowly.… Our emphasis on the restrictive scope of the BFOQ defense is grounded on both the language and the legislative history of 703. ……………………