In this case we are concerned with an employers genderbased fetal-protection policy. May an employer exclude a


In this case we are concerned with an employer’s genderbased fetal-protection policy. May an employer exclude a fertile female employee from certain jobs because of its concern for the health of the fetus the woman might conceive? 

   Respondent Johnson Controls, Inc., manufactures batteries. In the manufacturing process, the element lead is a primary ingredient. Occupational exposure to lead entails health risks, including the risk of harm to any fetus carried by a female employee.

   Before the Civil Rights Act of 1964, [citation], became law, Johnson Controls did not employ any woman in a battery-manufacturing job. In June 1977, however, it announced its first official policy concerning its employment of women in lead-exposure work:  

   [P]rotection of the health of the unborn child is the immediate and direct responsibility of the prospective parents. While the medical profession and the company can support them in the exercise of this responsibility, it cannot assume it for them without simultaneously infringing their rights as persons


   * * * Since not all women who can become mothers wish to become mothers (or will become mothers), it would appear to be illegal discrimination to treat all who are capable of pregnancy as though they will become pregnant.

   Consistent with that view, Johnson Controls ‘‘stopped short of excluding women capable of bearing children from lead exposure,’’ but emphasized that a woman who expected to have a child should not choose a job in which she would have such exposure. The company also required a woman who wished to be considered for employment to sign a statement that she had been advised of the risk of having a child while she was exposed to lead. The statement informed the woman that although there was evidence ‘‘that women exposed to lead have a higher rate of abortion,’’ this evidence was ‘‘not as clear * * * as the relationship between cigarette smoking and cancer,’’ but that it was, ‘‘medically speaking, just good sense not to run that risk if you want children and do not want to expose the unborn child to risk, however small * * *.

   Five years later, in 1982, Johnson Controls shifted from a policy of warning to a policy of exclusion. Between 1979 and 1983, eight employees became pregnant while maintaining blood lead levels in excess of 30 micrograms per deciliter. This appeared to be the critical level noted by the Occupational Health and Safety Administration (OSHA) for a worker who was planning to have a family. The company responded by announcing a broad exclusion of women from jobs that exposed them to lead:  

* * * [I]t is [Johnson Controls’] policy that women who are pregnant or who are capable of bearing children will not be placed into jobs involving lead exposure or which could expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights. 


   In April 1984, petitioners filed in the United States District Court for the Eastern District of Wisconsin a class action challenging Johnson Controls’ fetal-protection policy as sex discrimination that violated Title VII of the Civil Rights Act of 1964. Among the individual plaintiffs were petitioners Mary Craig, who had chosen to be sterilized in order to avoid losing her job, Elsie Nason, a 50-year-old divorcee, who had suffered a loss in compensation when she was transferred out of a job where she was exposed to lead, and Donald Penney, who had been denied a request for a leave of absence for the purpose of lowering his lead level because he intended to become a father. * * * 

   The District Court granted summary judgment for defendant-respondent Johnson Controls. Applying a three-part business necessity defense * * * Court concluded that while ‘‘there is a disagreement among the experts regarding the effect of lead on the fetus,’’ the hazard to the fetus through exposure to lead was established by ‘‘a considerable body of opinion’’; * * * and that petitioners had ‘‘failed to establish that there is an acceptable alternative policy which would protect the fetus.’’ The court stated that, in view of this disposition of the business necessity defense, it did not ‘‘have to undertake a bona fide occupational qualification’s (BFOQ) analysis.’’

   The Court of Appeals for the Seventh Circuit, sitting en banc, affirmed the summary judgment by a 7-to-4 vote. The majority held that the proper standard for evaluating the fetal-protection policy was the defense of business necessity; that Johnson Controls was entitled to summary judgment under that defense; and that even if the proper standard was a BFOQ, Johnson Controls still was entitled to summary judgment.  


   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. [T]he Civil Rights Act of 1964, [citation], prohibits sex-based 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.


    We concluded above that Johnson Controls’ policy is not neutral because it does not apply to the reproductive capacity of the company’s male employees in the same way as it applies to that of the females. Moreover, the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination. * * * 

   In sum, Johnson Controls’ policy ‘‘does not pass the simple test of whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’’’ [Citation.] 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 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.’’ * * *  

   The BFOQ defense is written narrowly, and this Court has read it narrowly. [Citations.] 


   The wording of the BFOQ defense contains several terms of restriction that indicate that the exception reaches only special situations. The statute thus limits the situations in which discrimination is permissible to ‘‘certain instances’’ where sex discrimination is ‘‘reasonably necessary’’ to the ‘‘normal operation’’ of the ‘‘particular’’ business. Each one of these terms—certain, normal, particular—prevents the use of general subjective standards and favors an objective, verifiable requirement. But the most telling term is ‘‘occupational’’; this indicates that these objective, verifiable requirements must concern job-related skills and aptitudes.


   Our case law, therefore, makes clear that the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job. This approach is consistent with the language of the BFOQ provision itself, for it suggests that permissible distinctions based on sex must relate to ability to perform the duties of the job. Johnson Controls suggests, however, that we expand the exception to allow fetal-protection policies that mandate particular standards for pregnant or fertile women. We decline to do so. Such an expansion contradicts not only the language of the BFOQ and the narrowness of its exception but the plain language and history of the Pregnancy Discrimination Act. 

   The PDA’s amendment to Title VII contains a BFOQ standard of its own: unless pregnant employees differ from others ‘‘in their ability or inability to work,’’ they must be ‘‘treated the same’’ as other employees ‘‘for all employment-related purposes.’’


   We conclude that the language of both the BFOQ provision and the PDA which amended it, as well as the legislative history and the case law, prohibit an employer from discriminating against a woman because of her capacity to become pregnant unless her reproductive potential prevents her from performing the duties of her job. * * * 

   We have no difficulty concluding that Johnson Controls cannot establish a BFOQ. Fertile women, as far as appears in the record, participate in the manufacture of batteries as efficiently as anyone else. Johnson Controls’ professed moral and ethical concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility. Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents. Congress has mandated this choice through Title VII, as amended by the Pregnancy Discrimination Act.


   Johnson Controls argues that it must exclude all fertile women because it is impossible to tell which women will become pregnant while working with lead. This argument is somewhat academic in light of our conclusion that the company may not exclude fertile women at all; it perhaps is worth noting, however, that Johnson Controls has shown no ‘‘factual basis for believing that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved.’’ [Citation.] Even on this sparse record, it is apparent that Johnson Controls is concerned about only a small minority of women. Of the eight pregnancies reported among the female employees, it has not been shown that any of the babies have birth defects or other abnormalities. The record does not reveal the birth rate for Johnson Controls’ female workers but national statistics show that approximately nine percent of all fertile women become pregnant each year. The birthrate drops to two percent for blue collar workers over age 30. [Citation.] Johnson Controls’ fear of prenatal injury, no matter how sincere, does not begin to show that substantially all of its fertile women employees are incapable of doing their jobs. 

   A word about tort liability and the increased cost of fertile women in the workplace is perhaps necessary. One of the dissenting judges in this case expressed concern about an employer’s tort liability and concluded that liability for a potential injury to a fetus is a social cost that Title VII does not require a company to ignore. It is correct to say that Title VII does not prevent the employer from having a conscience. The statute, however, does prevent sex-specific fetal-protection policies. These two aspects of Title VII do not conflict.


   If state tort law furthers discrimination in the workplace and prevents employers from hiring women who are capable of manufacturing the product as efficiently as men, then it will impede the accomplishment of Congress’ goals in enacting Title VII. Because Johnson Controls has not argued that it faces any costs from tort liability, not to mention crippling ones, the pre-emption question is not before us. We therefore say no more than that the concurrence’s speculation [about potential tort liability] appears unfounded as well as premature.

   The tort-liability argument reduces to two equally unpersuasive propositions. First, Johnson Controls attempts to solve the problem of reproductive health hazards by resorting to an exclusionary policy. Title VII plainly forbids illegal sex discrimination as a method of diverting attention from an employer’s obligation to police the workplace. Second, the spectre of an award of damages 910 Part 9 Regulation of Business reflects a fear that hiring fertile women will cost more. The extra cost of employing members of one sex, however, does not provide an affirmative Title VII defense for a discriminatory refusal to hire members of that gender. [Citation.] Indeed, in passing the PDA, Congress considered at length the considerable cost of providing equal treatment of pregnancy and related conditions, but made the ‘‘decision to forbid special treatment of pregnancy despite the social costs associated therewith.’’ [Citations.]

   We, of course, are not presented with, nor do we decide, a case in which costs would be so prohibitive as to threaten the survival of the employer’s business. We merely reiterate our prior holdings that the incremental cost of hiring women cannot justify discriminating against them.  


   The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

Fantastic news! We've Found the answer you've been seeking!

Step by Step Answer:

Related Book For  book-img-for-question

Smith and Roberson Business Law

ISBN: 978-0538473637

15th Edition

Authors: Richard A. Mann, Barry S. Roberts

Question Posted: