The safety exception to the BFOQ is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform, and the employer must direct its concerns in this regard to those aspects of the woman's job-related activities that fall within the essence of the particular business. This was determined in the case of Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 413 and Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 122-125 (1985).
The Court thought that a word about tort liability and the increased cost of fertile women in the workplace was perhaps necessary. One of the dissenting judges in this case had 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. The court felt that it correct to say that Title VII does not prevent the employer from having a conscience, but that the statute, does prevent sex-specific fetal-protection policies. These two aspects of Title VII are not thought to conflict one another. The dissenting opinion brought up the fact that an employer's tort liability for potential fetal injuries and its increased costs due to fertile women in the workplace did not require a different result. It was felt by the Court that under general tort principles, Title VII bans sex-specific fetal-protection policies. And if the employer fully informed the woman of the risk, and the employer has not acted negligently, the basis for...
The incremental cost of employing members of one sex cannot justify a discriminatory refusal to hire members of that gender (Supreme Court Collection, n.d.).
In this decision the court held that Title VII, as so amended, forbids sex-specific fetal-protection policies that are neither remarkable nor unprecedented. Over the years concern for a woman's existing or potential offspring has been the excuse for denying women equal employment opportunities. Congress in the passing of the PDA prohibited discrimination on the basis of a woman's ability to become pregnant. In this case the court did no more than hold that the PDA means what it says. It felt that it was no more appropriate for the courts than it is for individual employers to decide whether a woman's reproductive role is more important to herself and her family than her economic role. Congress has decided to leave this choice to the woman as hers to make.
References
Case Law. (2009). Retrieved October 19, 2009, from V/lex Web site:
http://vlex.com/vid/aerospace-uaw-intervening-controls-37279868
International Union, United Automobile, Aerospace & Agriculture Implement Workers of America, UAW, et al., Petitioners v. Johnson Controls, Inc. 499 U.S. 187 (1991).
Supreme Court Collection. (n.d.). Retrieved October 19, 2009, from Cornell University Law
School Web site: http://www.law.cornell.edu/supct/html/89-1215.ZS.html
