Reference no: EM131451241

Question: UAW v. Johnson Controls, Inc. 499 U.S. 187 (1991)

A group of employees challenged the employer's policy barring all women except those whose infertility was medically documented from jobs involving actual or potential lead exposure exceeding Occupational Safety and Health Administration (OSHA) standards. The Court found the policy to be illegal gender discrimination.

Blackmun, J.

In this case we are concerned with an employer's genderbased fetal protection policy. May an employer exclude a fertile female employee from certain jobs because of its concern for the health of the fetus the woman might conceive? Our answer is no. Employees involved in the suit include Elsie Nelson, a 50-year-old divorcee, who suffered a loss in compensation when she was transferred out of a job where she was exposed to lead, Mary Craig who chose to be sterilized in order to avoid losing her job, and Donald Penny, who was denied a request for leave of absence for the purpose of lowering his lead level because he intended to become a father.

The bias in Johnson Control's policy is obvious. Fertile men, but not fertile women, are given the choice as to whether they wish to risk their reproductive health for a particular job. Johnson Control's fetal protection policy explicitly discriminates against women on the basis of their gender. The policy excludes women with childbearing capacity from lead-exposed jobs and so creates a facial classification based on gender. The policy classifies on the basis of gender and childbearing capacity, rather than fertility alone. The employer 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. Johnson Controls' policy is facially discriminatory because it requires only a female employee to produce proof that she is not capable of reproducing.

Our conclusion is bolstered by the Pregnancy Discrimination Act of 1978 in which Congress explicitly provided that, for purposes of Title VII, discrimination "on the basis of sex" included discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." The PDA 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 gender. Johnson Controls has chosen to treat all its female employees as potentially pregnant; that choice evinces discrimination on the basis of gender. An employer may discriminate on the basis of gender in those certain instances where religion, gender or national origin is a BFOQ reasonably necessary to the normal operation of that particular business or enterprise. We conclude that the language of both the BFOQ provision and the PDA, which amended it, as well as the legislative history and case law, prohibit employers 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.

We have said before, an employer must direct its concerns about a woman's ability to perform her job safely and efficiently to those aspects of the woman's job-related activities that fall within the "essence" of the particular business. Johnson Controls cannot establish a BFOQ. Fertile women, as far as appears on the record, participate in the manufacture of batteries as efficiently as anyone else. Johnson Controls' professed moral and ethical concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility. Nor can concerns about the welfare of the next generation be considered a part of the "essence" of Johnson Controls' business. It is word play to say that the job at Johnson Controls is to make batteries without risk to fetuses in the same way the job at an airline is to fly planes without crashing. Decisions about the welfare of future children must be left to the parents who conceive, bear, support and raise them rather than to the employers who hire those parents.

A word about tort liability and the increased cost of fertile women in the workplace is perhaps necessary. It is correct to say that Title VII does not prevent an employer from having a conscience. The statute, however, does prevent gender-specific fetal protection policies. These two aspects of Title VII do not conflict. More than 40 states currently recognize a right to recover for a prenatal injury based either on negligence or on wrongful death. According to Johnson Controls, however, the company complies with the lead standard developed by OSHA and warns its female employees about the damaging effects of lead. It is worth noting that OSHA gave the problem of lead lengthy consideration and concluded that "there is no basis whatsoever for the claim that women of childbearing age should be excluded from the workplace in order to protect the fetus or the course of the pregnancy." 43 Fed. Reg. 52952, 52996 (1978). Instead, OSHA established a series of mandatory protections, which, taken together, "should effectively minimize any risk to the fetus and newborn child." Without negligence, it would be difficult for a court to find liability on the part of the employer.

If, under general tort principles, Title VII bans gender-specific fetal protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best. Our holding today that Title VII, as so amended, forbids gender-specific fetal protection policies is neither remarkable nor unprecedented. Concern for a woman's existing or potential offspring historically has been the excuse for denying women equal employment opportunities. Congress and the PDA prohibited discrimination on the basis of a woman's ability to become pregnant. We do no more than hold that the PDA means what it says. It is 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 left this choice to the woman as hers to make. REVERSED and REMANDED.

1. Do you agree with the Court that the welfare of the child should be left to the parents, not the employer?

2. What do you find most troublesome about the decision, if anything? Explain.

3. As an employer, what would you do in this situation?