International Union, United Automobile, Aerospace

¶ … International Union, United Automobile, Aerospace & Agriculture Implement Workers of America, UAW, et al., Petitioners v. Johnson Controls, Inc. 499 U.S. 187, the petitioner union, on behalf of a class of female employees, sought a writ of certiorari to the United States Court of Appeals for the Seventh Circuit, which affirmed the summary judgment in favor of respondent employer under its defense that employer's discriminatory fetal-protection policy was a business necessity, and a bona fide occupational qualification (BFOQ).

The Supreme Court of the United States, in an opinion delivered by Blackmun and joined by Marshall, Stevens, O'Connor and Souter reversed and remanded the matter for further proceedings. In this case they were concerned with an employer's gender-based fetal-protection policy. The question was whether an employer could exclude a fertile female employee from certain jobs because of its concern for the health of the fetus the woman might conceive. Occupational exposure to lead entails health risks that include the risk of harm to any fetus carried by a woman subjected to such exposure. After eight employees of Johnson Controls in whose battery manufacturing process lead was a primary ingredient, became pregnant while maintaining blood-lead levels in excess of the level that appeared to be the critical level noted by the Occupational Safety and Health Administration (OSHA) for a woman who was planning to have a family, the employer announced a policy barring all women, except those whose inability to bear children was medically documented, from jobs involving exposure or potential exposure to lead at a level exceeding OSHA standards. Basically the employer in this case had implemented a policy that excluded women who were pregnant or capable of bearing children from being placed in jobs involving lead exposure. The court held that employer's fetal-protection policy explicitly discriminated against women on the basis of their sex. The court ruled that this sex-based discrimination was not permissible. Under the Pregnancy Discrimination Act, 42 U.S.C.S. § 2000e (k), for all Title VII purposes, discrimination based on a woman's pregnancy was on its face discrimination because of her sex. Despite evidence about the debilitating effect of lead exposure on the male reproductive system, employer's policy only addressed female employees. Thus, the policy was not neutral. The absence of a malevolent notice did not convert the facially discriminatory policy into a neutral policy with a discriminatory effect. The court also held that this discrimination could not be justified as a BFOQ. Discrimination under the safety exception to the BFOQ was allowed only in narrow circumstances. Danger to the women did not justify the discrimination. The court felt that the bias in Johnson Controls' policy was more than 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 (Case Law, 2009).

Although the overall ruling in this case was unanimous Justices White, Rehnquist, Kennedy and Scalia dissented in part from this holding on the grounds that although the Court properly held that Johnson Controls' fetal-protection policy overtly discriminated against women, and thus was prohibited by Title VII of the Civil Rights Act of 1964 they erroneously held that the BFOQ defense is so narrow that it could never justify a sex-specific fetal-protection policy.

The language of both the BFOQ provision set forth in Title VII which allows an employer to discriminate on the basis of sex in those certain instances where sex is a BFOQ reasonably necessary to the normal operation of a particular business, and the PDA provision that amended Title VII which specifies that, 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 as well as these provisions' 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. 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 holding an employer liable seems remote. 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.).