The Leadership Conference on Civil and Human Rights

Spring 1991: Volume 5, Number 4

Civil Rights Monitor
Spring 1991

• Introduction
• Senate Judiciary Committee Rejects Judge Kenneth Ryskamp
• Supreme Court Rules in Fetal Protection Case
• Supreme Court Accepts Georgia School Desegregation Case
• Supreme Court Accepts Higher Education Desegregation Case
• Supreme Court Hears Oral Arguments in Voting Rights Cases
• My Mind on Freedom: 40 Years of LCCR

Supreme Court Rules in Fetal Protection Case

In the Johnson Controls case, the issue was whether a company's policy of excluding all fertile women from jobs where there is a risk of exposure to lead at a certain level was unlawful gender discrimination violative of Title VIT of the Civil Rights Act of 1904 (see CIVIL RIGHTS MONITOR, Spring 1990 and Fall 1990).

On March 20, 1991 the Supreme Court ruled unanimously that "Johnson Controls' fetal-protection policy is sex discrimination forbidden under Title VII unless respondent can establish that sex is a 'bona ride occupational qualification and that Johnson Controls' policy does not qualify as a BFOQ. The majority opinion was written by Justice Blackmun, and joined by Justices Marshall, Stevens, O'Connor, and Souter. Justice White, in a concurring opinion joined by Chief Justice Rehnquist and Justice Kennedy, agreed with the majority that the company's policy is overt sex discrimination, and thus is prohibited unless it is a BFOQ, but goes on to assert that the majority opinion errs in holding "that the BFOQ defense is so narrow that it could never justify a sex-specific fetal protection policy." The White opinion concurs in the Court's reversal and remand of the case "because on the record before us summary judgment in favor of Johnson Controls was im properly entered by the District Court and affirmed by the Court of Appeals." Justice Scalia issued a separate concurring opinion.

The decision has broad implications, as it is estimated that as many as 20 million women are employed in jobs that involve exposure to toxins and they could have run the risk of losing their jobs if the Supreme Court had ruled differently.

Background

This case, United Auto Workers v. Johnson Controls, Inc., No. 89-1215, involved a challenge to a battery manufacturing company's policy of excluding all fertile women from jobs where there is a risk of exposure to lead at a certain level. Under the policy women were also excluded from jobs in line of progression to jobs with a risk of lead exposure at a certain level. The company contended that the policy of protecting fetuses from workplace hazards responded to a legitimate concern for industrial safety which justified the exclusion of fertile women from certain jobs. Ultimately the company was trying to shield itself from liability in potential lawsuits that might be brought on behalf of children born with birth defects possibly attributable to their mothers' exposure to lead. The United Auto Workers and eight employees filed suit alleging the policy vio lated Title VII's prohibition against sex discrimination in employment.

The question before the Court was whether the exclusion policy was unlawful gender discrimination violative of Title V11 of the Civil Rights Act of 1964. Subsidiary questions included who bears the burden of proving that the employer's justification meets Title VII standards, and whether the justification had to be tested by the BFOQ defense or could be defended as legitimate business necessity.