In this case, an employer attempted to exclude fertile women from the workplace to avoid damage to

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In this case, an employer attempted to exclude fertile women from the workplace to avoid damage to fetuses. Female employees claimed this policy was an attempt to discriminate against pregnant women and women who potentially could become pregnant.

Justice Blackmun delivered the opinion of the Court.

Before the Civil Rights Act of 1964 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:

“Protection 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.”

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: “. . . It 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.”

The policy defined “women . . . capable of bearing children” as “all women except those whose inability to bear children is medically documented.” It further stated that an unacceptable work station was one where, “over the past year,” an employee had recorded a blood lead level of more than 30 micrograms per deciliter or the work site had yielded an air sample containing a lead level in excess of 30 micrograms per cubic meter.

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. Upon stipulation of the parties, the District Court certified a class consisting of “all past, present and future production and maintenance employees” in United Auto Workers bargaining units at nine of Johnson Controls’ plants “who have been and continue to be affected by the employer’s Fetal Protection Policy implemented in 1982.”

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, 42 U.S.C. 2000e-2(a), 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.

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.

Our conclusion is bolstered by the Pregnancy Discrimination Act of 1978 (PDA). Congress explicitly provided that, for purposes of Title VII, discrimination “on the basis of sex” includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” “The Pregnancy Discrimination Act has now made clear that, for all Title VII purposes, discrimination based on a woman’s pregnancy is, on its face, discrimination because of her sex.” In its use of the words “capable of bearing children” in the 1982 policy statement as the criterion for exclusion, Johnson Controls explicitly classifies on the basis of potential for pregnancy. Under the PDA, such a classification must be regarded, for Title VII purposes, in the same light as explicit sex discrimination. Respondent has chosen to treat all its female employees as potentially pregnant; that choice evinces discrimination on the basis of sex.

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.’” 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.”

Judgment for UAW.

Case Commentary

The U.S. Supreme Court decided that Johnson Controls’ attempt to exclude pregnant women from certain jobs that could have potentially damaged their fetuses amounted to sex discrimination.

1. Do you agree with the court's decision in this case? Why or why not?

2. Should the company close the plant if it cannot be made safe for all employees? What solution would you propose?

3. Could Johnson Controls have claimed a BFOQ exception? Why or why not?