499 U.S. 187, 203–04 (1991)
Johnson Controls, Inc. manufactures batteries.1 The manufacturing process uses lead as a primary ingredient.2 Occupational exposure to lead creates health risks, including potential harm to a fetus carried by a female employee.3
Before the Civil Rights Act of 1964, the company employed no women in battery-manufacturing jobs.4 In June 1977, Johnson Controls announced its first official policy on employment of women in lead-exposure work.5 The policy stated that protection of the health of the unborn child is the responsibility of prospective parents.6 It also stated that it would be illegal discrimination to treat all women capable of pregnancy as though they will become pregnant.7
The 1977 policy required a woman seeking consideration for employment to sign a statement.8 The statement acknowledged evidence that women exposed to lead have a higher rate of abortion.9 It advised that it was medically good sense not to run that risk if she wanted children.10
Five years later in 1982, after eight employees became pregnant between 1979 and 1983 while maintaining blood lead levels in excess of 30 micrograms per deciliter, Johnson Controls adopted a new policy.11 The new policy excluded women who were pregnant or capable of bearing children from jobs involving lead exposure.12 It also excluded them from jobs that could expose them through bidding, bumping, transfer or promotion rights.13
The 1982 policy defined women capable of bearing children as all women except those whose inability to bear children is medically documented.14 It applied to any work station where an employee had recorded a blood lead level over 30 micrograms per deciliter.15 It also applied where the site had yielded an air sample exceeding 30 micrograms per cubic meter over the past year.16
In April 1984, the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America and individual plaintiffs filed a class action.17 The plaintiffs included Mary Craig, who chose sterilization to avoid losing her job. Elsie Nason was a 50-year-old divorcee transferred out of a lead-exposed job with loss of compensation. Donald Penney was denied a leave of absence to lower his lead level because he intended to become a father.18 The suit was filed in the United States District Court for the Eastern District of Wisconsin.19
The District Court certified a class of all past, present and future production and maintenance employees in UAW bargaining units at nine Johnson Controls plants. The class consisted of those who have been and continue to be affected by the 1982 Fetal Protection Policy.20 The District Court granted summary judgment for Johnson Controls.21 The Court of Appeals for the Seventh Circuit, sitting en banc, affirmed the summary judgment by a 7-to-4 vote.22 The Supreme Court granted certiorari in 1990.23
Whether an employer may exclude a fertile female employee from jobs involving lead exposure because of its concern for the health of the fetus the woman might conceive?24
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals on the basis of sex in employment decisions.25 The Pregnancy Discrimination Act clarifies that discrimination on the basis of pregnancy, childbirth, or related medical conditions is sex discrimination.26 An employer may defend a facially discriminatory policy only by establishing that sex is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.27 This requires that the qualification relate to the essence of the business and the employee's ability to perform the job.28
No. Johnson Controls manufactures batteries using lead as a primary ingredient that creates occupational exposure risks including potential harm to a fetus carried by a female employee.29 Before the Civil Rights Act of 1964 the company employed no women in battery-manufacturing jobs.30 In June 1977 Johnson Controls announced its first official policy on employment of women in lead-exposure work.31 The policy stated that protection of the health of the unborn child is the responsibility of prospective parents. It also stated that it would be illegal discrimination to treat all women capable of pregnancy as though they will become pregnant.
The 1977 policy required a woman seeking consideration for employment to sign a statement. The statement acknowledged evidence that women exposed to lead have a higher rate of abortion. It advised that it was medically good sense not to run that risk if she wanted children.
Five years later in 1982 after eight employees became pregnant between 1979 and 1983 while maintaining blood lead levels in excess of 30 micrograms per deciliter Johnson Controls adopted a new policy.32 The new policy excluded women who were pregnant or capable of bearing children from jobs involving lead exposure. It also excluded them from jobs that could expose them through bidding, bumping, transfer or promotion rights.
The 1982 policy defined women capable of bearing children as all women except those whose inability to bear children is medically documented. It applied to any work station where an employee had recorded a blood lead level over 30 micrograms per deciliter. It also applied where the site had yielded an air sample exceeding 30 micrograms per cubic meter over the past year.
In April 1984 the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and individual plaintiffs Mary Craig who chose sterilization to avoid losing her job, Elsie Nason a 50-year-old divorcee transferred out of a lead-exposed job with loss of compensation, and Donald Penney who was denied a leave of absence to lower his lead level because he intended to become a father filed a class action in the United States District Court for the Eastern District of Wisconsin.33
The District Court certified a class of all past, present and future production and maintenance employees in UAW bargaining units at nine Johnson Controls plants who have been and continue to be affected by the 1982 Fetal Protection Policy.34 The District Court granted summary judgment for Johnson Controls. The Court of Appeals for the Seventh Circuit sitting en banc affirmed the summary judgment by a 7-to-4 vote.35 The Supreme Court granted certiorari in 1990.
The established facts show that Johnson Controls adopted a 1982 policy that excluded women capable of bearing children from lead-exposed jobs while allowing men to work in those positions despite potential risks to male reproductive health.36 The policy was implemented after eight pregnancies with high blood lead levels but it did not apply the same exclusion to men.37 This demonstrates that the exclusion is based on sex rather than a neutral concern for fetal health that applies equally.38
An employer may not exclude a fertile female employee from jobs involving lead exposure because of its concern for the health of the fetus the woman might conceive.39
Related opinions on this issue
Joined by The Chief Justice And Justice Kennedy
Justice White concurred in the judgment of reversal.40 He disagreed with the majority's narrow view of the BFOQ defense.41 He argued that a fetal-protection policy could be justified as a BFOQ if necessary to avoid substantial tort liability.42
Avoiding injury to third parties is part of the normal operation of a business.43 He concluded that summary judgment was improper because the policy reached too far by presuming all women fertile and excluding them from promotion paths.44 The record did not show the policy was reasonably necessary.45
Justice Scalia concurred in the judgment.46 He agreed with the Court's analysis that the policy constitutes sex discrimination under the Pregnancy Discrimination Act regardless of any evidence about the effects of lead exposure on the male reproductive system. He emphasized that treating women differently on the basis of pregnancy is discrimination on the basis of sex because Congress has said so unequivocally.47
Scalia noted that the BFOQ question turns on whether the policy is reasonably necessary to the normal operation of the business.48 He observed that the company had not demonstrated a substantial risk of tort liability that would support the BFOQ defense.49 He disagreed with the majority's suggestion that increased cost alone cannot support a BFOQ defense unless the costs are so prohibitive as to threaten the survival of the employer's business.
He viewed that limitation as incorrect, though he agreed with the result because Johnson Controls had not asserted a cost-based BFOQ.50
Whether Johnson Controls' fetal-protection policy is facially discriminatory under Title VII of the Civil Rights Act of 1964?51
Yes. The 1982 policy of Johnson Controls explicitly excludes women who are pregnant or capable of bearing children from lead exposure jobs requiring only female employees to provide medical documentation of inability to bear children.54 This creates a facial classification based on gender and potential pregnancy as fertile men are not similarly excluded.55
Johnson Controls' fetal-protection policy is facially discriminatory under Title VII of the Civil Rights Act of 1964.56
Whether the policy qualifies as a bona fide occupational qualification reasonably necessary to the normal operation of the business?57
The BFOQ exception is narrow and applies only when the qualification is reasonably necessary to the essence of the business and relates to the employee's ability to perform the job safely and efficiently.58 Concerns about fetal health do not qualify unless they interfere with the employee's ability to perform the duties of the job.59
No. The facts establish that fertile women participate in battery manufacturing as efficiently as other employees and the company's concern for the welfare of future children is not part of the essence of making batteries.60 The policy does not show that substantially all fertile women are unable to perform the job safely and the BFOQ cannot be based on broad social concerns about fetal health.61
The policy does not qualify as a bona fide occupational qualification reasonably necessary to the normal operation of the business.62