Petition for Writ of Certiorari — International Union, United Automobile, Aerospace & Agricultural Implement v. Johnson Controls, Inc.

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—_— ~-

89.1915 ;

No.

Supreme Court, U.S.

FILED

JAN 29 1990

JOSEPH fF. SPANIOL, JR.

CLERK.

atta 1

IN THE

Siytreme Cut of the United States

OCTOBER TERM, 1989

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA, et al.,

Petitioners,

JOHNSON CONTROLS, INC..

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JORDAN ROSSEN

RALPH O. JONES

8000 E. Jefferson Avenue

CARIN ANN CLAUSS Detroit, MI 53214

750 University Avenue MArRsHA S. BERZON

Madison, WI 54706 (Counsel of Record)

LAURENCE GOLD 177 Post Street

815 16th Street, N.W. San Francisco, CA 94108

Washington, D.C. 20006 (415) 421-7151

Of Counsel Attorneys for Petitioners

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

® cee 60

—_-

QUESTIONS PRESENTED FOR REVIEW

1. Where an employer policy excluding all fertile women

from certain jobs because of concerns for the health of

any fetus that those women may conceive is challenged

as unlawful gender discrimination violative of Title VII

of the Civil Rights Act of 1964:

a. does the plaintiff or the defendant bear the burden

of proving that the employer’s justification for excluding

women from certain jobs meets Title VII standards?

b. is that justification judged under the explicit pro-

visions of the statutory affirmative defense for bona fide

occupational qualifications or is the employer entitled to

assert an additional, broader “legitimate U&siness justi-

fication” defense not explicitly stated in the statute?

ce. if only the statutory bona fide occupational! qualifi-

cation defense is available, does a fetal protection pur-

pose come within the bounds of that defense?

2. Are scientific animal studies insufficient as a matter

of law to demonstrate a significant risk to humans due

to the exposure to a toxic substance?

(i)

LIST OF PARTIES TO THE PROCEEDING

The plaintiffs in the district court, appellants in the

court of appeals and petitioners in this Court, are: the

United Automobile, Aerospace & Agricultural Implement

Workers of America International Union (“UAW”);

UAW Local Unions Nos. 12, 119, 509, 754, 1283, 1343,

1371, 1516 and 1719; and Lois Sweatman, Linda Burdick,

Elsie Nason, Mary Estalled Schmitt, Shirley Jean Mackey,

Mary Craig, Anna May Penney, and Donald Penney,

representing the class of all past, present and future pro-

duction and maintenance employees employed in bargain-

ing units represented by the UAW at nine plants owned

by Johnson Controls, Inc.

The defendant in the district court, appellee in the

court of appeals, and respondent in this Court is Johnson

Controls, Inc.

TABLE OF CONTENTS

Page

I IIIT sd cacasahipeaninbiationiinonmminaenecobueieseneh 1

ETE MER Rema eRe ERE ERNE, 2

STATUTORY PROVISIONS INVOLVED .....0W.... 2

oy vy yh yy: ilo) | Een 2

Bs TE ire as Or A re

1. The Exclusion of Women from Battery Man-

I a 3

2. Harms Caused By Lead .........00020000000.eeee..

Be I TI occa ccteccencecccevesecssnconsiscnonnine 10

REASONS FOR GRANTING THE WRIT |... 14

| sAsideieissiieiaanaiiel 15

II. Animal Studies Exclusion —.............. aeliuincimccaiee 26

III. Importance Of The Case .......................cc.ccccsccses..s. 27

SUUUIMEITITEEY <isssicceituiiihde\ciasuiihibatieieilbasebiasnbidiasbdesbdie\abbotilaeiaeatel 30

(iii)

TABLE OF AUTHORITIES

CASES Page

Arizone Governing Committee v, Norris, 463 U.S.

1073 (1983) . sine 22

Burwell v. Eastern Airlines, 633 F. 2d 361 (4th Cir.

ID cg ntsiaaaeeencmnened 23

City of Los Angeles Depertn rent of W ater v. Man-

hart, 485 U.S. 718 (1978) _..... aan .....17, 19, 25

Dothard v. Rawlinson, 433 = S. 321 (1977) 21, 22, 25

Environmental D.F., Inc. v. Environmental Pro

Agcy, 510 F.2d 1292 (D.C. Cir. 1975) e 15, 26

Environmental Defense Fund Inc. v. E.P.A., 548

F.2d 998 (D.C. Cir. 1976) ......... wa

Hayes v. Shelby Memorial Hospital, 726 F.2d 1543

ey ee: EE - cdepiesiiusieotampoistenianaiiieedl passim

Industrial Union Department v. American Petrol.

Inst., 448 U.S. 607 (1980) .......00......... ae ease ... 15, 26

Newport News Shipbuilding & Dry Dock Co. v.

EEOC, 462 U.S. 669 (1988) ...............0.00000002.. 16

Phillips v. Martin Marietta Corp., 400 U.S. 542

SI 16, 21

Price Waterhouse v. Hopkins, U.S. ——, 109

S. Ct. 1775 (1989) ......... ARE Ay eee NE a OFS Re RTT passim

Public Citizen Research Group v. Tyson, 796 F.2d

ee Gets Wa I on ge vcnedenicss desnncc cmc 15, 16, 27

Teamsters v. United States, 431 U.S. 324 (1977) .... 17

Trans World Airlines, Inc. v. Thurston, 469 U.S.

eS ee cdisscnfossbssoenbuicctentpueinic ans ltlantei sii neek alae cea as 17, 22

United Steelworkers of America v. Marshall, 647

F.2d 1189 (1980), cert. denied, 453 U.S. 918

RTECS TINS SN aR ae aL See,” Nat 6,7

Ward’s Cove Packing Co. v. Atonio, US.

— 3 © S fF | een 11, 18, 20

Watson v. Fort Worth Bank and Trust Co.,

USS. > § S- % ., 2) | nes 18

Western Air Lines v. Criswell, 472 U.S. 400

SRST sciescherieschesescnetash scenes datiiaiamaiie iia a a dala da 22, 23

Wright v. Olin Corp., 697 F.2d 1172 (4th Cir.

STITT . édicadeneuuiceascusabeseunceseaueisgianiamesmseeaiommiameeniee passim

TABLE OF AUTHORITIES—Continued

STATUTES AND REGULATIONS Page

I i I ai isincescnsipeeineendciced diab didceiahdatiti 2

29 C.F.R. § 1910.1025 (1987) ......02... eee. 7

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq...passim

§ 701 (k), 42 U.S.C. § 2000e(k) 0... ee 16

§ 703 (e), 42 U.S.C. § 2000e-2(e) ........ erence 21

Clean Air Act,« U.S.C. § 7401 et seq. ...........cen.. 27

Consumer Product Safety Act, 15 U.S.C. § 2051..... 27

Federal Food, Drug and Cosmetic Act, 21 U.S.C.

Rls Oe I CI GID ceseciescncccnctensesewsessonseenavaiivecs 27

Federal Insecticide, Fungicide, and Rodenticide

Act, 7 U.S.C. §§ 186-136Y ..............00000 27

Federal Water Pollution Control Act, 33 U.S.C.

is SEPT .<ancossassenlighisensdendatesdeninenssaneatmedunentuahadimieniiiesdia 27

—— Safety and Health Act, 29 U.S. C.

§ 651 .. rahe -_ - 27

Pregnancy " Discrimination ~ Act, 42 U.S.C.

RR aE BAPE Ete RIE BEI RENO eI 13

Resource Conservation and-Recovery Act of 1976,

ee te I ss ccnciennsmniciaicesanarensersdecerntindbeones 27

Safe Drinking Water Act, 42 U.S.C. §§ 300(f) et

Ra PE Ma Re 2 Se SR sk tn RE SAV TSS 27

Toxic Substances Control Act, 15 U.S.C. §§ 2601-

CES PESETS I SRC Chee Bie TOM tre ann Man 27

MISCELLANEOUS

H. Rep. No. 95-948 (95th Cong. 2d Sess. 1978)... . 16, 23

S. Rep. No. 95-331 (95th Cong. 1st Sess. 1977) ...... 16, 23

43 Fed. Reg. 52952 et seq. (1978) —....---- nn. 4

ee eR eden FA Fe Le 4

a aa a a 4

ee I sissies sec cisicssecsinitneanbncdiitipnasiiedtiaienicelanidtoia 4

ee 19, 28

46 Fed. Reg. 3916 (1981) -..... gaiadnideniiteantienibtiddaiiais: 19

GO Fed. Rem. SEGO-G1 CIGGS) ........0...c0cccccccccccccsccseceseese 9

TABLE OF AUTHORITIES—Continued

Becker, From Muller v. Oregon to Fetal Vulner-

ability Policies, 53 U. Chi.L.Rev. 1219 (1986)...

Child Care Employee Center, National Child Care

BD TD GID cteccnnncescnssavssenccsoccansenstiiestontane

Hricko, Social Policy Considerations of Occupa-

tional Health Standards: the Example of Lead

and Reproductive Effects, 7 Preventive Medicine

I iene ans

Marcus and Cothern, The Characterisitcs of An

Adverse Effect: Using the Example of Develop-

ing a Standard for Lead, 16 Drug Metabolism

I iT

U.S. Congress, Office of Technology Assessment

(“OTA”), Reproductive Health Hazards in the

U.S. Department of Labor, Occupational Outlook

I aes

Williams, Firing the Woman to Protect the Fetus:

The Reconciliation of Fetal Protection with Em-

ployment Opportunity Goals Under Title VII, 69

SE EIR

Page

23, 29

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No.

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA, et al.,

‘i. Petitioners,

JOHNSON CONTROLS, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners International Union, United Automobile,

Aerospace and Agricultural Implement Workers of

America, UAW, et ai., plaintiffs in the district court and

appellants in the court of appeals, petition this Court to

issue a writ of certiorari to the United States Court of

Appeals for the Seventh Circuit to review the judgment

in International Union, UAW v. Johnson Controls, Inc.,

886 F.2d 871 (7th Cir. No. 88-1308; Sept. 26, 1989).

OPINIONS BELOW

The Court of Appeals’ opinion is reported at 886 F.2d

871, and is reproduced at pp. la-10la of the separately

bound appendix to this certiorari petition (hereinafter

“Pet. App.”). The opinion of the United States District

Court for the Eastern District of Wisconsin is reported

at 680 F. Supp. 309, and is reproduced at Pet. App.

102a-120a.

JURISDICTION

The Court of Appeals’ opinion and judgment were is-

sued on September 26, 1989. On December 8, 1989, Jus-

tice Stevens signed an order extending the time for filing

a certiorari petition to and including January 12, 1990.

On January 4, 1990, Justice Stevens signed an order

further extending the filing date to and including Janu-

ary 29, 1990. This Court’s jurisdiction is invoked pur-

suant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant portions of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq., are set out at

Pet. App. 145a-46a.

STATEMENT OF THE CASE

Johnson Controls, Inc. (“the employer” or “the com-

pany”) is a manufacturer of batteries. Occupational ex-

posure to lead, the primary material used in the battery

manufacturing process, entails a health risk to workers,

including a risk of harm to fetuses conceived by workers.

Pet. App. 32a.

This case concerns the question whether Johnson Con-

trols is permitted, under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq., to ban women who

cannot prove infertility, but no men, from: jobs in

which one employee in the last year had a blood lead

level reading beyond that the company considers safe for

fetuses carried by pregnant women; jobs which are per-

formed in areas in which the air lead level reading ex-

ceeds that which the company considers safe for fetuses:

and all jobs in lines of progression which contain any

banned lead-exposed positions.

On the defendant company’s motion for summary

judgment, the Disrtict Court upheld the employer’s

policy. After briefing and oral argument before a panel

of the Seventh Circuit, but in advance of issuance of any

opinion, the Court of Appeals as a whole decided that

the issues presented by this case are of sufficient conse-

quence to warrant hearing en banc. Pet. App. 2a.

The resulting en banc decision concluded, by a 7-4

vote, that Johnson Controls is entitled to maintain its

policy despite the fact that the policy explicitly disad-

vantages women on the basis of gender, and does so for

reasons entirely unconnected to ability of women to per-

form their assigned employment tasks.

Judges Posner, Easterbrook, and Cudahy filed dis-

senting opinions, and Judge Flaum joined in Judge Eas-

terbrook’s dissent.

A. The Facts

1. The Exclusion of Women from Battery Manufac-

turing Positions

In 1977, Johnson Controls instituted its official policy

regarding the employment in lead-exposed jobs of women

who cannot demonstrate that they are infertile. At that

time, the employer was of the view that:

[P]rotection of the health of the unborn child is

the immediate and direct responsibility of the pro-

spective parents. While the medical profession and

the company can support them in the exercise of this

responsibility, it cannot assume it for them without

simultaneously infringing their rights as persons.

We believe that pregnancy is almost always a vol-

untary act and that the subsequent bearing of child

is voluntary. Since not all women who can becume

pregnant wish to become mothers, . . . it would ap-

pear to be illegal discrimination to treat all who are

capable of pregnancy as though they will become

pregnant. [Beaudoin Aff., Exh. J.]

Consistent with that view, the company suggested, but

did not require, that women who wished to do so choose

non-lead exposed jobs where such jobs were availab’e.

The company did not, however. provide any guaranteed

transfer for women who wished to leave lead-exposed

jebs, nor did the company protect the prior wage rate of

any woman who did transfer for that reason.

In 1978, OSHA announced its Final Standard for Oc-

cupational Exposure to Lead. 43 Fed. Reg. 52952 et

seq. (1978); 29 C.F.R. § 1910.1025 (1987). When that

standard was being considered, OSHA devoted particular

attention to the question whether the possible effects on

fetuses carried by pregnant workers justified excluding

women entirely from at least certain lead-exposed posi-

tions. 43 Fed. Reg. 52960 (“No topic was covered in

greater depth or from more vantage points than the sub-

ject of women in the lead industry.’’).

On the basis of its close study of the question, OSHA

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 pregnancy.” 43 Fed. Reg. 52966: see also, e.9.,

43 Fed. Reg. 54398. Instead, OSHA established a series

of mandatory protections which, taken together, “should

effectively minimize any risk to the fetus and newborn

child.” 43 Fed. Reg. 52966.' The Agency stated in

addition:

The record in this rulemaking is clear that male

workers may be adversely affected by lead as well as

women. Male workers may be rendered infertile or

impotent, and both men and women are subject to

1Those protections, based upon the recognition that workers

who are planning families should have blood lead levels below

30 g/dl, included periodic blood lead level tests and air monitoring

beginning at a 30 ,,g/m3 air lead level; medical surveillance, includ-

ing fertility testing and the right to have review by several phy-

sicians; educational and training provisions, so that “workers are

fully informed of the potential hazards from exposure to lead on

their reproductive ability, during pregnancy and following birth”:

and, where workers are planning families and reduction of blood

lead levels is medically indicated, the possibility of temporary re-

moval from lead-exposed jobs, with wage protection and assured

possibility of return to the lead-exposed position for up to eighteen

months. 43 Fed. Reg. 52966.

genetic damage which may affect both the course

and outcome of pregnancy... . Effective compliance

with all aspects of this standard will minimize the

risk to all persons and should therefore insure equal

employment for both men and women. [43 Fed. Reg.

52966. |

In 1982, Johnson Controls, despite its own earlier pro-

nouncements and those of OSHA, announced a broad ex-

clusion of women from lead exposed jobs:

It is [Johnson Control’s] policy that women who

are pregnant or who are capable of bearing children

will not be placed into jobs involving lead exposure

or which could expose them to lead through the ex-

ercise of job bidding, bumping, transfer or promo-

tion rights. {Pet. App. 9a (emphasis supplied) .]

Johnson Controls’ policy was applied to particular posi-

tions based not on the average or mean blood level of the

job incumbents, but upon whether a sing/e individual in

that position, at any time in the preceding year, showed

a blood lead level of more than 30 ,»g/dl. Pet. App.

5a. In addition, a job is banned if the air-lead level is

more than 30 »g m3, even though such an air-lead level

reading is likely to produce a blood-lead level much lower

than 20 .g dl. 45 Fed. Reg. 52960-61. Moreover, even

though the company allowed incumbent women employees

to remain in lead-exposed positions if, on the basis of in-

dividual blood-lead level monitoring, those incumbents

were able to keep their blood lead at the level the com-

pany considers safe for fetuses, the employer did not

allow any women seeking to be hired or promoted into

lead-exposed positions to demonstrate through individual

blood monitoring an ability to keep her blood lead level

below 30 »g dl? In addition, as already noted, the ban

2 The company’s explanation for its refusal to provide for individ-

ual testing for dangerous blood lead levels was, in part, to avoid

frequent blood level testing and, in addition, that ‘“‘the potential for

greatest exposure [to lead] is right at the outset while the employee

is learning the proper work practices.”” Beaudoin Dep. at 163; see

extended beyond the jobs actually exposed to lead; there

is no explanation in the record of any health or safety

basis for the breadth of the ban. Finally, the company

insisted on banning a// women who could not prove their

infertility from lead-exposed jobs, regardless of their

family status, age, sexual orientation, or expressed inten-

tion to bear children.

The sum of the matter is that, in practical terms, the

company’s policy was to bar women capable of bearing

children from a// manufacturing jobs in its battery

plants (except a few held by incumbent women). Pet.

App. 97a; Ross Depo. Ex. 8. .

2. Harms Caused by Lead

Lead is a toxic substance that can cause a wide range

of health problems in men, women, and children, depend-

ing upon the exact exposure level. See, e.g., United Steel-

workers of America v. Marsha'l, 647 F.2d 1189, 1248-49

(1980), cert. denied 453 U.S. 913 (1981). In particular,

“at least one part of the body, the reproductive system,

begins to suffer very serious subclinical effects at 30 ug

100g of iead in the blood.” /d. Those effects, according

to OSHA, include both a risk to fetuses carried by preg-

nant employees resulting from lead exposure in utero

and other serious impacts upon the reproductive systems

of both men and women:

The rulemaking produced ample evidence confirm-

ing the grave danger lead poses to prospective

mothers and fetuses... OSHA [also] found evi-

dence that lead-exposed males suffer serious harm

to their spermatogenesis, including malformed sperm

(teratospermia), decreased motility of sperm (as-

thenospermia), and decreased number of sperm (hy-

pospermia). . . . Older studies found alarmingly

Pet. App. 10a. The company did not explain why proper training

on hygiene techniques could not be provided before an employee

begins work at a lead-exposed position,

high rates of sponteneous abortion, stillbirth, and

birth defects in the pregnancies of women married

to lead-exposed workers .. . Other studies found

chromosomal abnormalities among lead exposed

|male] workers.

OSHA thus found abundant support for the view

that a lead standard must protect the reproductive

capacities of males as well as females. [647 F.2d at

1257. |

On the basis of its lengthy consideration of the issue,

OSHA decided that

because of the demonstrated adverse effects of lead

on reproductive function in both male and female as

well as the risk of genetic damage of lead on both

the ovum and sperm, OSHA recommends a 30 micro-

gram 100 g maximum permissible blood level in both

males and females who wish to bear children. [29

C.F.R. § 1910, pp. 833-34 (emphasis supplied) .]

The District of Columbia Circuit approved this finding

as well supported by the extensive administrative record.

United Steelworkers of America v. Marshall, 647 F.2d

at 1248-49.

Not surprisingly given this background, there was 1.0

dispute among the experts in this summary judgment

case on the basic fact that, as OSHA had concluded, lead

poses a risk to fetuses of pregnant workers at the 30

vg ‘dl blood lead level. The summary judgment record

3 At the relatively low blood lead levels which Johnson Controls

regards as sufficient to bar fertile women, the primary risk is that

the children born will have ‘very subtle” learning problems, and

may exhibit behavioral problems such as hyperactivity. Pet. App.

15a, 16a. The record is undisputed on the fact that, contrary to the

Court of Appeals’ statement, Pet. App. 17a, fetal lead exposure at

the levels involved in this case does not cause structural abnormali-

ties in vital organs, e.g., Chisolm Depo. 27, 29, 40, 41, 47; Whorton

Depo. 4-5.

There was some evidence, including a Center for Disease Control

(“CDC”) Report, that the risk of cognitive and behavioral harm to

here does not, however, address at all the significance

of that risk. There is no evidence, for example, whether,

at the blood 'ead levels here at issue, the likelihood of

any harm to a child of an exposed women employee is

one in ten, one in a hundred, one in a thousand, or one

in a million. See Pet. App. 90a (Easterbrook, J., dis-

senting ).'

There was, in addition, directly conflicting evidence in

the summary judgment record concerning the other

harms caused by lead at the blood lead levels enforced

by Johnson Controls for fertile women. There was evi-

dence both supporting and disputing OSHA’s conclusion

that at the 30 ,.g dl blood lead level, the reproductive

capacities, and the health of potential children, of bot/

men and women were at significant risk.

The plaintiffs’ experts were uniformly of the view that,

as OSHA had concluded, the available evidence, including

animal and human studies completed after the OSHA

record was closed, support the conclusion that at the 30

vg dl blood lead level, there is a significant risk of in-

jury to the male reproductive system, including effects

on the pregnancies of wives of male employees.*° Defend-

children exposed to lead in utero occurs at blood lead levels lower

than 30 ,g dl. See Pet. App. 14a. Johnson Controls, however,

only purports to enforce a blood lead ievel of 30 , g/dl, the level

OSHA held to be an appropriate benchmark for both men and

women intending to have children. And OSIIA, not the CDC, is

the agency charged by Congress with determining the appropriate

occupational health standard for male and female workers after,

considering whether there is a significant risk due to various levels

of occupational exposure. 29 U.S.C. $$ 651(b)(3) & 655(b) (5).

4 There was some conflict in the competing affidavits on: pre-

cisely how and when harm to the fetus through the mother occurs;

and how that risk compares to the risks to adults posed by lead,

and to other fetal risks women encounter in their daily lives.

5In stating that the plaintiffs’ experts had no human studies to

rely on, the Court of Appeals was simply wrong. For example,

ant’s experts maintained, to the contrary, that there was

either no evidence of a reproductive effect on males or of

a fetal effect mediated through males, or that there was

no evidence of such effects at the 30 ,g dl blood lead

level at issue in this case. Pet. App. 33a; Whorton Aff.

| 7; Chisolf Aff. {{ 7-8; Hammond Aff. {{] 6-7.

There was also evidence presented by the plaintiffs’ ex-

perts, backed by both animal and human studies reported

in scientific papers, that there is a significant risk to the

health of adult men and women at the 30 »g ‘dl blood lead

level, including neurological and cardiovascular injury

and an increased likelihood of certain forms of cancer.

One of the plaintiffs’ experts noted, for example, that

recent studies of adults males show that they suffer a

significant increase in high blood pressure at 15-25

ng dl blood lead level. Silberbeld Depo. 68-69, 87."

Defendant’s experts denied any such effects at blood

levels below 50 ,»g/dl in genera! terms, but did not spe-

cifically refer to or dispute the evidence relied upon by

those experts referred to, inter alia, one study by the National In-

stitute of Occupation Safety and Health (NIOSH) of male iead

battery plant workers, concluded in 1984, that reported a significant

loss of fertility in families where the men had been exposed to lead,

including a 25% loss of fertility where the male worker had a blood

lead level of 25-33 ,g/dl and the wives had blood lead levels much

lower.

6 The Environmental Protection Agency (“EPA”) relied upon

these studies in considering the further reduction of lead in gaso-

line. See 50 Fed. Reg. 9400-01 (1985) (EPA discussion of studies

demonstrating that adult males are subject to an increased risk of

high blood pressure, with resultant dangers of heart disease and

strokes, at blood lead levels well below those which Johnson Con-

trols considers safe for fertile women); Marcus and Cothern, The

Characteristics of An Adverse Effect: Using the Example of De-

veloping a Standaid for Lead, 16 Drug Metabolism Reviews 423,

430 (1985-86) (“if blood lead levels were lowered from 17 to 10

micrograms deciliter there would result in savings of a minimum

of 50,000 [heart attacks], 70,000 strokes and 25,000 predicted deaths

over a 10-year period”).

the plaintiffs’ experts. Whorton Aff. 97 6, 8; Scialli Aff.

10; Chisolm Dep. at 15.

B. The Proceedings Below

This challenge to Johnson Control’s policy excluding

fertile women from battery manufacturing jobs was filed

by eight employees, certified as representatives of a class

of similarly situated employees, and the union represent-

ing them, the International Union, UAW. Among the

individual plaintiffs were one female employee who sub-

mitted to sterilization in order to avoid loss of a desire-

able position, Complaint { 79; several female employees

(one of whom was fifty years old and divorced) who

were transferred from lead-exposed positions, with loss

in compensation, Complaint 56, 66, 67, 72, 75, 79;

two female employees who were unable to transfer into

lead-exposed positions to which they were otherwise en-

titled, with resulting loss of income and employment ad-

vancement opportuni:y, Complaint § 79; and one male

employee who sought a leave of absence for the purpose

of lowering his blood lead level because he intended to

become a father and was constructively discharged for

making the request, Complaint 1 79 & Ex. I.

After discovery, the defendant company sought, and

the District Court granted, summary judgment. That

court held:

Because of the fetuses possibility of unknown ex-

istence to the mother and the severe risk of harm

that may occur if exposed to lead, the fetal protec-

tion policy is not facially discriminatory ... [Pet.

App. 116a.]

The District Court therefore treated the explicit gender-

based discrimination in this case as if the employer fol-

lowed a neutral policy that only has a disparate impact

upon women as a group. Pet. App. 117a. And, in analyz-

ing this proceeding as a disparate impact case, the Dis-

trict Court applied an ‘expanded business necessity de-

fense,” permitting an employer’s interest in protecting

the potential offspring of employees to constitute such a

defense. Pet. App. 116a-117a.

The en banc court of appeals majority affirmed, on

doctrinal grounds even broader in their potential appli-

cation than those adopted by the District Court.

First, the Court of Appeals agreed with the District

Court that where an employer purports to justify dis-

crimination against women that explicitly takes gender

into account on grounds connected to the health of poten-

tial off-spring ‘a business necessity defense may be

utilized.” Pet. App. 27a. The Court of Appeals, citing

this Court’s opinion in’ Ward’s Cove Packing Co. v.

Atonio, USS. , 109 S. Ct. 2115, 2125-26 (1989),

then placed on the plaintiff, not on the defendant, the

burden of persuasion on the key evidentiary issues that

purportedly justify departure from ordinary disparate

treatment analysis. Pet. App. 28a-32a.

Specifically, under the Court of Appeals’ analysis, once

the employer indicates that its motive for a job exclusion

policy explicitly based upon gender is protection of fetal

health, the plaintiff must prove that it is more likely

than not: (1) that there is no substantial risk of harm

to the fetus a women employee may be carrying from

the workplace substance or process said to endanger fetal

health, Pet. App. 32a; or (2) that the risk of harm to

fetal health is not “substantially confined to fertile fe-

male employees,” Pet. App. 33a; or (3) that there are

alternative policies which would protect against the risk

of fetal harm equally well, with less discriminatory im-

pact, Pet. App. 37a.

The Court of Appeals expressly recognized that placing

the burden of proof on the plaintiffs—especially with

respect to the second of these issues—was essential to its

ultimate affirmance of summary judgment for the de-

fendant company. Pet. App. 30a, 31a, 33a. In particular,

in considering whether the plaintiffs had met their puta-

tive burden of proof as to the second issue, the Court

of Appeals recognized that the plaintiffs’ experts had re-

lied on animal studies from which those experts concluded

that there is a risk of fetal injury mediated through lead-

exposed male workers, and ruled that

animal research does not present the type of solid

scientific data necessary for a reasonable factfinder

to reach a non-speculative conclusion that a father’s

exposure to lead presents the same danger to the

unborn child as that resulting from a female em-

ployee’s exposure to lead. [Pet. App. 34a.]

Second, the Court of Appeals adopted an alternative

theory for upholding the District Court’s judgment in

favor of the company. Although the District Court had

declined to reach the issue, the Court of Appeals decided

that “Johnson Controls’ fetal protection policy could be

upheld [on summary judgment] under the bona fide oc-

cupational qualification defense.” Pet. App. 42a. Where

a business may present some dangers to the health of a

fetus carried by an employee, protection of the fetus,

said the Court of Appeals, is part of the “essence’’ of the

business even though fertile women are fully able to

carry out the job’s tasks without danger to the company’s

customers or to their fellow employees. Pet. App. 48a.

And the court of appeals majority found that the em-

plover’s specific policy here was ‘reasonably necessary”

to protecting fetal health, despite the absence of any ex-

planation in the record for several aspects of the em-

ployer’s policy (such as the failure to individually moni-

tor blood lead levels and to provide adequate training

for new lead-exposed employees!. See Pet. App. 72a

(Posner, J., dissenting).

The four dissenters wrote three dissenting opinions.

Judge Posner and Judge Cudahy were of the view that

a case such as this one must be analyzed as a disparate

treatment case, not as a disparate impact case; that the

burden of proof as to any justification for the employer’s

policy must be on the employer, not on the plaintiff: and

that, while an affirmative bona fide occupational qualifica-

tion defense (“bfoq’) may, in very narrow circum-

stances, be available for justifying fetal protection poli-

cies, it was entirely inappropriate to grant summary judg-

ment for the employer on that defense on the record here.

Pet. App. 60a, 70a, 73a.

Judge Easterbrook wrote a lengthy dissenting opinion

that made three essential points:

First, under Title VII, as modified by the Pregnancy

Discrimination Act, 42 U.S.C. §2000e(k) (“PDA”),’

and as interpreted uniformly in this Court’s cases, a

policy that explicitly discriminates on the basis of capac-

ity to bear children constitutes disparate treatment on

the basis of gender, regardless of the employer’s purpose

in adopting the policy; thus, the only available defense

is the affirmative bfoa defense and nut a broader legiti-

mate business justification defense. Pet. App. 75a-81a.

Second, the proffered justification for the employer’s

fetal protection policy—the moral imperative of protect-

ing fetal health from mistaken parental risk assessments

—does not, as a matter of law, meet the PDA standard

of equal treatment of employees “similar in their ability

or inability to work”, and is not a basis for a legally

cognizable bfoq defense. Pet. App. 84a.

Third, even on the disparate impact theory adopted in

the alternative by the court of appeals majority, the

record here does not provide a sufficient basis for reject-

ing OSHA’s conclusion that exclusion of women from

a lead-exposed workplace is not justified by the scientific

evidence. Pet. App. 93a-99a. In particular, “the medical

profession, like the Food and Drug Administration. will

be stunned to discover that animal studies are too

‘speculative’. Often animal studies are the best founda-

tion for decision.” Pet. App. 96a.

7 The majority opinion does not mention the PDA.

REASONS FOR GRANTING THE WRIT

This case presents a Title VII gender discrimination

question of great theoretical and practical importance.

As Judge Easterbrook stated in his dissenting opinion

below:

This is the most important sex-discrimination case

this circuit has ever decided. It is likely the most

important sex-discrimination case in any court since

1964, when Congress enacted Title VII. If the ma-

jority is right, then by one estimate 20 million in-

dustrial jobs could be closed to women, for many

substances in addition to lead pose fetal risks .. .

Whether that would happen is of course a separate

question. .. . But ihe law would allow employers to

consign more women to “women’s work”, while re-

serving better-paying but more hazardous jobs for

men. Title VII was designed to eliminate rather

than perpetuate such matching of sexes to jobs. | Pet.

App. 99a-100a. |

The three courts of appeals that have treated with the

question in this case have left the law on employer fetal

protection policies that bar wemen from certain jobs in

total disarray. While all agree that an employer policy

of this kind substantially disadvantages women and is

thus invalid unless justified in some manner, those courts

disagree entirely upon the critical issues of the evi-

dentiary burdens to be borne by each party in the proof

of the applicable justification and even on the substantive

content of that justification.

In particular, the majority opinion in this case flatly

conflicts with its predecessors—W right v. Olin Corp., 697

F.2d 1172 (4th Cir. 1982): Hayes v. Shelby Memorial

Hosp., 726 F.2d 1543 (11th Cir. 1984)—in two basic

regards, each of which is of sufficient importance to be

outcome determinative in this case:

First, the majority below determined that an employer

may justify a policy that explicitly discriminates against

women simply by coming forward with evidence of a

fetal protective motive. In contrast, the Fourth and Elev-

enth Circuits—and this Court in Price Waterhouse v.

Hopkins, US. , 109 S. Ct. 1775 (1989)—place

a normal burden of persuasion with regard to any appli-

cable statutory justification squarely upon the employer.

Second, the majority below also held that protection

of fetal health is a legally proper basis for a bona fide

occupational qualification defense (“bfoq’) to explicit

gender-based discrimination. The Fourth and Eleventh

Circuits, however, hold that because concerns about fetal

health are unrelated to the ability of women to perform

their jobs, such concerns are not a proper basis for a

bfoq defense.

Each of these holdings significantly narrows Title

VII’s prohibition against gender discrimination; indeed,

taken together, the Court of Appeals’ rulings in these two

regards effectively insulate employer fetal protection poli-

cies such as the one here from Title VII scrutiny. At

least equally to the point, both of these rulings are con-

trary to well-settled Title VII principles governing em-

ployer policies that discriminate against women on their

face as declared by this Court.

In addition, the holding of the court below that animal

studies can xever constitute substantial evidence of risk

to humans, is both vital to its result and squarely in con-

flict with several decisions of the District of Columbia

Circuit,* a plurality opinion of this Court *, and the long-

standing practice of a myriad of federal agencies in-

volved in risk analysis and regulation.

All the foregoing being so, this case plainly calls for

this Court’s review.

‘Environmental D.F., Inc. v. Environmental Pro. Agcy, 510

F.2d 1292 (D.C. Cir. 1975); Environmental Defense Fund Inc. v.

E.P.A., 548 F.2d 998, 1005-10 (D.C. Cir. 1976); Public Citizen

Research Group v. Tyson, 796 F.2d 1479 (D.C. Cir. 1986).

* Industrial Union Dept. v. American Petrol. Inst., 448 U.S. 607

(1980).

I. Title VII Analysis

A. (1) The company’s fetal protection policy explicitly

and overtly denies women employment opportunities be-

cause of their gender: A// fertile women, but no fertile

men, are precluded from holding certain jobs.'” Moreover,

even if the company’s policy drew a line of demarcation

that, as the Court of Appeals evidently thought, turned

instead upon some aspect of childbearing that is unique

to women, the policy would still constitute discrimination

overtly based on sex.

In 1978, Congress squarely addressed the question

whether a distinction centering upon a woman’s child-

bearing capacity is a distinction ‘‘on the basis of sex,”

and concluded that the answer is “yes.” '' And Congress

took this approach precisely because the Legislature rec-

1 While not all women are precluded from those jobs—since

sterilized, infertile, or post-menopausal women are not affected—-

that consideration does not make the line of differentiation one

that is any less squarely based on gender: both men and women

are capable of procreating in the future; because the policy none-

theless creates “one hiring policy for women and another for men

-—each having [the capacity to procreate!,” it is policy that draws

a direct gender-based distinction. Phillips v. Martin Marietta

Corp., 400 U.S. 542, 544 (1971).

'! The PDA provides:

The terms “because of sex” or “on the basis of sex” include

. . . because of or on the basis of pregnancy, childbirth, or

related medical conditions; and women affected by pregnancy,

childbirth, or related medical conditions shall be treated the

same for all employment purposes ... as other persons not

so affected but similar in their ability or inability to work.

[Title VII § 701(k), 42 U.S.C. § 2000e(k).}

Congress specifically wrote this broad language to make clear

that discrimination premised in any way on women’s capacity to

bear children is discrimination based squarely on gender, and not

a facially neutral employment policy. Newport News Shipbuilding

& Dry Dock v. EEOC, 462 U.S. 669, 677-679 (1983); see S. Rep.

No. 95-331 (95th Cong. Ist Sess. 1977) at 3-4 (“[T]he bill defines

sex discrimination ... to include those physiological occurrences

peculiar to women”); H. Rep. No. 95-948 (95th Cong. 2d Sess.

1978) at 3.

ognized that in large part, the problems women have

encountered in the job market have resulted from adverse

treatment because of childbearing capacity:

Women are still subject to the stereotype that all

women are marginal workers. Until a women passes

the child-bearing age, she is viewed by employers as

potentially pregnant. Therefore, the elimination of

discrimination based on pregnancy in these employ-

ment practices . .. will go a long way toward pro-

viding equal employment opportunities for women.

... [S.Rep. 95-331, supra, at 6-7.)

Thus, the company’s fetal protection policy “does not

pass the simple test of whether the evidence shows ‘treat-

ment of a person in a manner which but for that person’s

sex would be different.’” City of Los Angeles Depart-

ment of Water v. Manhart, 435 U.S. 702, 711 (1978).

See also Trans World Airlines, Inc. v. Thurston, 469

U.S. 111, 121-22 (1985); Teamsters v. United States.

431 U.S. 324, 335 n. 15 (1977). As Manhart makes clear,

the practice therefore “constitutes discrimination and is

unlawful unless exempted by . . . some .. . affirmative

justification.” 435 U.S. at 711 (emphasis supplied).

Just last term, this Court reiterated in no uncertain

terms that where a plaintiff proves an employment policy

that overtly distinguishes between employees on the basis

of gender, she has proven a case of illegal employment

discrimination unless the employer carries the burden of

demonstrating that some exception to Title VII's pro-

scription of gender-based distinctions applies under the

circumstances :

We have in *'1e past confronted Title VII cases in

which an employer has used an illegitimate criterion

to distinguish among employees, and have held that

it is the employer’s burden to justify decisions re-

sulting from that practice. . .. [O]ur assmption

has always been that if an employer allows gender

to affect its decision-making process, then it must

carry the burden of justifying its ultimate decision.

[Price Waterhouse v. Hopkins, 109 S. Ct. at 1789.)

(2) The Court of Appeals’ decision in this case is entirely

inconsistent with these well-established principles. That

decision holds that a policy that explicitly discriminates on

the basis of gender is to be treated on the same basis as a

policy neutral on its face, with only a disparate impact

upon women. But this Court’s cases make it clear that

these two classes of cases are entirely distinct.

A case in which a plaintiff proves that ‘tan employer

has treated |a] particular person less favorably because

of the plaintiff’s .. . sex” is a straightforward “disparaie

treatment case,” and such proof of intentional discrimi-

nation is all that the plaintiff need show to make out her

ease. Watson v. Fort Worth Bank and Trust Co.,

U.S. ——, 108 S. Ct. 2777, 2784 (1988) ‘(emphasis

added}.

In contrast, where a plaintiff cannot “prove intentional

discrimination,” but can only demonstrate a “facially

neutral employment practice[] that [has] significant ad-

verse effects on [a] protected group,” the plaintiff may

still be able to prove a Title VII case, but “[t]he factual

iss'es and the character of the evidence are inevitably

somewhat different” than in a disparate treatment case.

Watson v. Fort Worth Bank and Trust Co., 108 S. Ct.

at 2784 (emphasis added}. Specifically where a plaintiff

cannot prove that a distinction was made taking gender

into consideration, then the plaintiff must identify the

specific employment practice complained about, prove its

discriminatory impact, and “bear|] the burden of dis-

proving an employer’s assertion that the adverse employ-

ment action or practice was based solely on a legitimate

neutral consideration.”” Ward’s Cove Packing Co. v.

Atonio, US. , 109 S. Ct. 2115, 2126 (1989).

As a consequence of treating this facial discrimina-

tion case as one tantamount to a disparate impact case,

the Court of Appeals, citing Wards Cove, placed on the

plaintiff the responsibility of disproving the legitimacy

of the employer’s fetal protection justification. But as

Ward’s Cove explained, in a true disparate impact case,

once the employer has articulated a legitimate neutral

basis for his actions “|t|he persuasion burden . . . must

remain with the plaintiff’ for the reason that it is the

plaintiff “who must prove that it was ‘because of such

individual’s race, color,’ etc. that he was denied a desired

employment opportunity.” 109 S. Ct. at 2126. Precisely

because the employer practice at issue in such a case is

neutral on its face only by overcoming the defendant's

proffered non-discriminatory reason can the nlaintiff prove

Title VII discrimination. In contrast, here and in any case

in which the plaintiff proves that the employer follows

an employment practice that overly distinguishes between

men and women, the plaintiff has met her burden of

proving discrimination and can not be made to do so a

second time. Price Waterhouse v. Hopkins, supra; City

of Los Angeles Department of Water v. Manhart, supra.

(3) The Court of Appeals, in reaching its contrary con-

clusion purported to follow the lead of the Fourth Circuit

in Wright v. Olin Corp., supra, and of the Eleventh Circuit

in Hayes v. Shelby Memorial Hospital, supra.'* But both

12 The majority opinion suggests that the EEOC as well has

applied a disparate impact analysis to fetal protection policies. Pet.

App. 25a-26a. However, the EEOC has just issued a document

entitled “Policy Guidance on United Auto Workers v. Johnson

Controls, Inc. . .. . ” That document (which appears, for the

Court’s convenience, as appendix G to this petition) “clarifies the

Commission’s position on the proper legal analysis to be applied

to charges challenging fetal protection policies.”” Pet. App. 127a.

In that clarification, the EEOC makes plain that Commiss.on never

sanctioned the position ultimately adopted by the Seventh Circuit,

and regards that position as “a significant departure from the

analytical framework previously developed by the courts and en-

dorsed by the Commission.” Pet. App. 132a. In particular, the

EEOC agrees with plaintiffs that:

Fetal protection policies . .. are not neutral rules to which

adverse impact analysis applies. Instead ... policies which

exclude only women constitute per se violations of Title VII.

For the plaintiff to bear the burden of proof in a case in

which there is direct proof of a facially discriminatory policy

of those courts explicitly held that on the issues of the

significance of any fetal risk and of whether the risk is

one that is only transmitted through women, the burden

of persuasion as to whether the employer’s policy is

within a statutory exception to the non-discrimination

principle is on the defendant employer, not on the

plaintiff. Wright, 697 F.2d at 1190; Hayes, 726 F.2d

at 1548. Indeed, this Court last term pointed to Wright

and Hayes as examples of the principle that where an

employer’s action is overtly discriminatory, it is the em-

ployer that must bear the burden of justifying the ap-

parent discrimination. Price Waterhouse v. Hopkins, 109

S.Ct. at 1789.

As the attention this Court gave to burden of persua-

sion issues last term in Price Waterhouse v. Hopkins,

supra, and Ward’s Cove Packing Co. v. Atonio, supra,

suggests, the result in Title VII cases often turns upon

which party bears that burden. Where, as here, the is-

sues to be proven turn in whole or in part on current

is wholly inconsistent with settled Title VII law. [Pet. App.

133a. |

Moreover, the Commission has now determined, in light of the

Court of Appeals opinion in this case, that any “hybrid approach

to fetal protection is problematic.” Pet. App. 134a. Instead, the

Commission would analyze fetal protection cases solely in terms

of whether the employer can make out a bfoq defense. While, like

Judge Posner, the EEOC would not exclude entirely the possibility

of such a defense based upon fetal concerns, the Commission

would apply that defense in a manner entirely different than the

Court of Appeals did here. Pet. App. 134a-39a. Further, in its

recent clarification, the Commission expressly states its view that

summary judgment was inappropriate here, given the conflicting

evidence, the court’s exclusion of animal studies, and the court’s

refusal to “defer to pertinent conclusions by pertinent government

agencies [here, OSHA]}.” Pet. App. 139a-41la.

The EEOC’s position on the fetal protection issue has, of course,

taken several turns. See also 45 Fed. Reg. 7514 (1980), 46 Fed.

Reg. 3916 (1981) (announcing for public comment and then with-

drawing a proposal for formal guidelines on this question). For

present purposes, however, what is important is that the agency

charged with enforcement of Title VII agrees that the Court of

Appeals’ general approach has no sound basis in Title VII.

scientific understandings and those understandings are

based on only limited research, the proper allocation of

the burden of persuasion is a dispositive consideration.

Indeed, as Hayes notes, “there is, within the scientific

community, a certain amount of subtle bias that has fo-

cused research on the hazardous effects of workplace sub-

stances as they pertain to reproductive health on women

more than men.” 726 F.2d at 1549.

Thus, particularly on the question whether a specific

practice or substance adversely affects male employees’

reproductive capacity and/or the health of potential chil-

dren of male employees, the placement of the burden of

persuasion will likely control the outcome. That was cer-

tainly so in this case: the Court of Appeals stressed that

its reason for approving a grant of summary judgment

for the defendant company—even though there was evi-

dence presented on both sides of the issue of the mediation

of the fetal impact of lead through the male—was that

the evidence on that issue presented by the plaintiff was,

in that court’s view, insufficient to meet the burden of

persuading the trier of fact that such effect is more likely

than not. Pet. App. 30a, 3la, 33a.

B. As an alternative to its disparate impact theory,

the Court of Appeals in this case held also that the em-

ployer’s interest in protecting fetal health is a legally cog-

nizable affirmative defense to a disparate treatment case,

as a “bona fide occupational qualification reasonably nec-

essary to the normal operation of the particular business

or enterprise.” Title VII § 703(e), 42 U.S.C. § 2006e-

2(e). Again the court below erred: and again its ruling

is in conflict both with the Title VII principles stated by

this Court and with the rulings of the Fourth and Elev-

enth Circuits.

The bfoq provision states the only explicit statutory ex-

ception to the rule that an employment policy that ex-

pressly denies employment opportunities on the basis of

gender is unlawful. Phillips v. Martin Marietta Co., 400

U.S. at 544; Dothard v. Rawlinson, 433 U.S. 321, 332-33

(1977); Arizona Governing Committee v. Norris, 463

U.S. 1073, 1083-84 & n. 13 (1983); see Price Waterhouse

v. Hopkins, 109 S. Ct. at 1789." And this Court has

addressed the question of the kind of employer interest

that will support a bfoq defense twice. Dothard v.

Rawlinson, supra; Western Air Lines v. Criswell, 472

U.S. 400 (1985).'' See also Trans World Airlines v.

Thurston, 469 U.S. at 122-124.

Those cases stress that the bfoq defense “provides only

the narrowest of exceptions to the general rule requiring

equality of employment opportunities.” Dothard v. Raw-

linson, 433 U.S. at 333. Moreover, the Court ruled that,

as the statutory language suggests, a job qualification, to

constitute a bfoq, must be related to the “essence,” Dothard,

433 U.S. at 336, 337, or the ‘central mission of the em-

ployer’s business,” Western Air Lines v. Criswell, 472

U.S. at 413. Most to the point here, Dothard indicates

that an employer’s paternalisite concern for a woman’s

personal safety does not meet this standard, since “it is

the purpose of Title VII to allow the individual women to

make |the!] choice for herself ... |whether| to weigh and

accept ... risks of employment.” 433 U.S. at 335.

Based upon the foregoing, both the Fourth and Elev-

enth Circuits concluded that protection of an employee’s

18 Price Waterhouse noted that “some courts’—citing Hayes v.

Shelby Memorial Hospital, supra, and Wright v. Olin Corp., supra—

have suggested that there is an additional, implicit affirmative

defense where an employer contends that “its limitations on the

work that it allows a pregnant women to perform are necessary in

light of her pregnancy.” 109 S. Ct. at 1789. Price Waterhouse

did not, however, purport to endorse the existence of any such

exception in addition to the exceptions Congress chose to provide.

And, as we suggest below, there is no basis for importing such an

exception into the statutory scheme. See pp. 22-24 infra.

14 Criswell was decided under the Age Discrimination in Em-

ployment Act (“ADEA”), not under Title VII. However, as

Criswell itself recounts, the relevant bfoq language in the ADEA

was borrowed directly from Title VII, and has always been under-

stood as identical in its intent and reach to the parallel provision

in Title VIl. 472 U.S. at 411-412, 413 n.18, 414 n.19, 416.

fetus or potential fetus is no more the type of employ-

ment interest that can constitute an “occupational quali-

fication” than is protection of the woman herself. Wright,

697 F. 2d at 1187 (a bfoq cannot be based on a fetal

protection motive, because “properly applied, this statu-

tory defense is a narrow one ... under which a con-

cededly discriminatory occupational qualification is shown

to be justified because related to the very ability of the

disqualified person to perform the job.”); Hayes, 726

F.2d at 1549 (“the BFOQ defense is available only when

an employer can show that the excluded class is unable

to perform the duties that constitute the ‘essence’ of the

job... ‘{PlJotential for fetal harm, unless it adversely

affects a mother’s job performance, is irrelevant to the

BFOQ issue.’”’). See also Burwell v. Eastern Air Lines,

Inc., 633 F.2d 361, 371 (4th Cir. 1980).

In direct opposition to those holdings, the Court of Ap-

peals in this case held that the company’s interest in

overriding a woman’s own assessment of the risks of

lead exposure during pregnancy is “reasonably neces-

sary” to the “essence” of a battery manufacturer’s busi-

‘* As Judge Easterbrook observed in his dissent, the language

and history of the PDA support the conclusion reached by the

Fourth and Eleventh Circuits on the applicability of the bfoq

defense to a fetal protection policy. Pet. App. 76a, 82a. The PDA

provides that women “affected by pregnancy” are to be treated

“the same” as other employees “similar in their ability or inability

to work.” See, e.g., S. Rep. No. 95-331, supra, at 4, (“fu]nder

this bill, the treatment of pregnant women .. . must focus not on

their condition alone but on the actual effects of that condition on

their ability to work.”); H.R. Rep. 95-948, supra, at 3-4.

In this connection, it is important to remember that the company’s

policy applies to all fertile women. Many women, however, have no

intention of bearing children; for example, one of the plaintiffs here

was fifty years old and divorced. Such women quite reasonably

may judge the exposure to lead to involve no realistic risk to future

children. Similarly, other women may judge that the fetal risks

due to maternal poverty are greater than the fetal risks due to

lead exposure while employed. See Becker, From Muller v. Oregon

to Fetal Vulnerability Policies, 53 U. Chi. L. Rev. 1219, 1229-31

(1986).

ness.'® That court so concluded even though fertile women

are obviously fully capable of performing production jobs

in battery manufacturing without any harm to their

fellow employees or the company’s customers. Pet. App.

48a.

In sum the Court of Appeals ruling in this critical re-

gard creates a direct circuit conflict and cannot, in any

event, be squared with this Court’s cases construing Title

VII's bfoq provision.

C. Finally, on the one aspect of Title VII analysis

on which the Court of Appeals did in some sense agree

with the Fourth and Eleventh Circuits, all three courts

have entirely departed from this Court’s cases, and from

the statutory language and structure.’’ That issue is

whether a case in which an employer overtly discrimi-

nates between men and women in distributing job oppor-

tunities is subject only to a bfoq defense, or whether in-

16 The Court of Appeals’ conclusion as to the “reasonably neces-

sary” prong of the bfoq analysis also conflicts with this Court’s

decision in Criswell v. Western Air Lines, supra. Criswell explains

that to meet that prong of the bfoq test, an employer must show

either that “all or substantially all’ employees of the proscribed

group cannot perform the job safely and efficiently or that it is

‘impossible or highly impractical’ to deal with the employees on

an individualized basis. 472 U.S. at 414. As Judge Easterbrook

noted, in this case it is obviously not true that all, or substantially, all.

fertile women are likely to become pregnant, or to have excessively

high blood lead levels if they do become pregnant. Pet. App. 83a.

Nor has the employer explained why individual monitoring of blood

lead levels will not suffice, when the OSHA lead standard requires

such monitoring and the company does perform such monitoring

for women who were incumbents in lead-exposed positions.

17JIn fact, there are serious doctrinal differences even on this

question between Wright and this case, on the one hand, and

Hayes, on the other. Wright and this case hold that a disparate

impact analysis applies if the fetal protection was in fact the

employer's reason for adopting the policy. Wright, 697 F.2d at

1186; Pet. App. 27a-28a. Hayes, instead, created a presumption

that such a case is one of facial discrimination, subject only to a

bfoq defense, but permitted employers to rebut that presumption

by demonstrating a significant risk of fetal harm mediated only

through the mother. 726 F.2d at 1548.

stead such a case can be transformed—because of the

employer’s motivation in adopting the discriminatory po!l-

icy—into one in which the employer is entitled to invoke a

broader legitimate business justification, ordinarily avail-

able only in disparate impact cases.

Title VII, in terms, proscribes discrimination on the

basis of gender except when certain conditions, spelled

out in the statute, are satisfied; the only such condi-

tion possibly applicable here is that the employer’s policy

is a bona fide occupational qualification. Nothing in the

statute, and no case in this Court, permits the creation

of new and additional Title VII defenses that Congress

did not choose to provide, or the transformation of what

is plainly explicit gender-based discrimination into a

facially neutral policy on the theory that the employer’s

motive is benign, or nondiscriminatory. City of Los An-

geles Department of Water v. Manhart, supra, holds

that there is no such “benign motive” defense. Man-

hart ruled that an employer’s desire to create actuarial

equality between men’s pensions and women’s pensions—

a purpose that is both benign and nondiscriminatory—-

could not justify facially different adverse treatment of

individual women. 435 U.S. at 716-717.

Indeed, the very function of the statutory bfoq defense

is to delineate those circumstances in which the employ-

er’s reason for adopting an overtly discriminatory policy

will be regarded as valid because the female employee's

“very womanhood” is inconsistent with the employer’s

neutral job requirements. Dothard v. Rawlinson, 433

U.S 336 (plaintiff’s “very womanhood” is inconsistent

wii . neutral prison employer interest in prison security).

But Congress has chesen to permit such a defense only

under narrow circumstances and to recognize only cer-

tain, narrowly-defined employer interests as sufficiently

weighty to justify overt discrimination. As Judge

Easterbrook observed, the courts are not entitled to alter

that judgment:

A court’s belief that a good end is in view does

not justify departure from the statutory framework;

it is an occasion for applying the statutory frame-

work. ... [Wright held] this must be a disparate

impact case because the employer couldn’t win it as

a disparate treatment case. If the rigors of the

BFOQ suggest the need for a fresh approach, that

is a job for another branch. [Pet. App. 77a.]

II. Animal Studies Exclusion

In the course of its Title VII analysis, the Court of

Appeals in this case held, as a matter of law, that animal

studies are not the type of “solid scientific data” on

which a reasonable person could reach a conclusion about

the significance of toxic risks to humans. Pet. App. 34a.

This sweeping holding conflicts with the longstanding

view of the District of Columbia Circuit, is flatly incon-

sistent with the considered judgment of the medical com-

munity and of the federal agencies responsible for regu-

lating the nation’s health and safety, and disregards as

well the position taken by a plurality of this Court, with

no disagreement on this point vy any Justice, in /idior

trial Union Dept. v. American Petrol. Inst., supra.

In Industrial Union Dept., this Court invalidated an

OSHA standard for benzene because the record contained

insufficient evidence to support the Secretary of Labor's

conclusion that benzene poses a significant risk to hu-

mans at the precise level at which the Secretary had

chosen to set the standard. The plurality stated that

there were a number of “rational” ways in which the

Secretary could have met his burden, noting that “|i|n

other proceedings, the Agency has had a good deal of

data from animal experiments on which it could base a

conclusion on the significance of the risk.” 448 U.S. at

657 & n.64.

The District of Columbia Circuit has held as well

that extrapolating the effect on humans from animal

study data is eminently reasonable. For example, in

Environmental D.F. Inc. v. Environmental Pro. Agency,

supra, the EPA, acting solely on the basis of mice and

rat data, suspended the registration of certain pesticides.

That court upheld the Agency’s reliance on the animal

data, stating that “[a]lthough extrapolation of data from

mice to men may be quantitatively imprecise, it is suf-

ficient to establish a ‘substantial likelihood’ that harm

will result.” 510 F.2d at 1299. See also Public Citizen

Health Research Group v. Tyson, supra; Environmental

Defense Fund, Inc. v. E.P.A., supra.

The implications for the nation’s health and safety

regulatory system of the Court of Appeals’ categorical

disqualification of animal studies cannot be overstated.

Under at least nine federal statutes, animal studies are

not only relied upon, but frequently provide the sole basis

for regulation.'"* Under the Seventh Circuit's ruling,

otherwise supportable regulations may now be invali-

dated whenever the agency relies upon animal data, re-

gardless of the particular studies’ methodological sound-

ness; that approach would wreak havoc on the federal

regulatory system.

III. Importance Of The Case

Judge Easterbrook’s assessment of the importance of

this case—that it is “likely the most important sex dis-

crimination case in any court” since Title VII was en-

acted—is not hyperbole. First, the reach of the work-

place situations that may entail some particularized risk

to fetal health is quite broad:

[PJotential [fetal hazards] in the modern work-

place rang[(e] from toxic chemicals in the office, to

biological hazards in the hospital and laboratory, to

pesticides on farms, to heavy metals such as lead,

cadmium, and mercury in industry, according to a

'’ See Federal Insecticide, Fungicide, and Rodenticide Act, 7

U.S.C. $$ 136-136Y; Federal Food, Drug and Cosmetic Act, 21

U.S.C. $301, 348(c) (3) (A); Consumer Product Safety Act, 15

U.S.C. § 2051; Safe Drinking Water Act, 42 U.S.C. $$ 300(f)

et seq.; Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629;

Federa! Water Pollution Control Act, 33 U.S.C. §$ 1317(a); Clean

Air Act, 42 U.S.C. § 7401 et seq.; Occupational Safety and Health

Act, 29 U.S.C. $651; Resource Conservation and Recovery Act of

1976, 42 U.S.C. § 6901 et seq.

number of experts. In addition . . . some health pro-

fessionals have suggested that radiation emitted by

video display terminals, stress, and noise may be

possible factors in reproductive problems. {Bureau

of National Affairs, Pregnancy and Employment

(“BNA”) (1987) ].”

While the precise number of workers exposed to such

potential hazards can only be estimated, the 20 million

figure relied on by Judge Easterbrook has been accepted

by the EEOC, see 45 Fed. Reg. 7514 (1980), and, given

the range of industries affected, does not seem at all out

of line.-°

1° See generally U.S. Congress, Office of Technology Assessment

(“OTA”), Reproductive Health Hazards in the Workplace, pp. 69-

126 (1985). Some of the industries in which there is substantial

evidence of fetal risk include those in which women have tradi-

tionally been most heavily employed, including hospitals and child-

care centers. See BNA, supra, at 68, 86-87; 19 Occupational Safety

and Health Reporter 1223 (December 6, 1989) (between 25° and

60% of preschool children cared for in daycare centers have a

virus that is harmless to them, but which, if it infects female

childcare workers during the first 24 weeks of pregnancy, places

the fetus at an increased risk of about 15% of permanent neuro-

logical damage). In addition, new technologies have been impli-

cated as fetal hazards. See BNA, supra, at 82-83.

20 For example, in the late 1970’s over 1.3 million jobs in this

country involved exposure to lead alone. Hricko, Social Policy

Considerations of Occupational Health Standards: the Example

of Lead and Reproductive Effects, 7 Preventive Medicine 394, 395

(1978). The Office of Technology Assessment estimates that there

are a total of three million workers exposed to only two of the

chemicals implicated as reproductive hazards. OTA, at 87, 90.

And there are approximately 589,000 childcare workers, 97° of

whom are women. U.S. Department of Labor, Occupational Out-

look Handbook (1989) at 277; Child Care Employee Center, Na-

tional Child Care Staffing Study (1989).

It may be that because of the need to retain an adequate work-

force in the most female-intensive workplaces, employers will

choose to make the workplace safe for women and their potential

offspring, rather than to exclude fertile women because of fetal

risks. But that observation simply indicates that the willingness

of employers in male-dominate industries to exclude broad classes

of women for fetal protection purposes reflects a subtle assumption

Second, as the scientific evidence concerning such risks

develops, it appears that the number of women who have

in fact been excluded from the workplace based on fetal

protection concerns is tending to increase. In 1979 that

number was estimated to be at least 100,000. Williams,

Firing the Woman to Protect the Fetus: The Reconcilia-

tion of Fetal Protection with Employment Opportunity

Goals Under Title VII, 69 Geo. L. J. 641, 647 n. 30

(1981). Concern with and research on _ reproductive

health hazards has subsequently burgeoned; indeed,

the policy in this very case was instituted after 1979.

More recent studies indicate, without quantifying the

number of women affected, an increasing incidence of ex-

clusionary policies in many major companies, such as

General Motors, B.F. Goodrich, Allied Chemical, Chemi-

eal, Monsanto, Gulf Oil, and Sun Oil. Becker, From

Muller v. Oregon to Fetal Vulnerability Policies, 53 U.-

Chi. L. Rev. at 1226.

Third, the mode of analysis employed by the Court

of Appeals is likely to encourage employers to impose

broad new fetal protection policies. That analysis, for

one thing, would permit the exclusion not only of preg-

nant women, but of all fertile women, on the gener-

ally applicable theory that women may not know they

are pregnant in the early weeks, and thereby may ex-

pose fetuses to hazards unknowingly. Pet. App. 53a.

Further, by placing the burden of persuasion on the

plaintiffs to dispreve the significance of the risk and its

mediation through women alone, that court has substan-

tially lightened the burden upon employers seeking to

justify exclusion of women on fetal protective grounds.

As Judge Posner noted, this lightening of the employ-

ers’ burden “may encourag!e] incautious employers

to adopt fetal protection policies that could endanger

the jobs of millions of women.”’ Pet. App. 73a.

that women are nonessential workers, who are better excluded

than accommodated.

Further, the opinion below allows employers to act

based on the risks to fetuses created by the workplace

alone, without taking into account the risks posed to

fetuses if the mother does not have sufficient economic

resources before and after pregnancy. Because the ef-

fect is to permit employers to make a basic decision of

social policy, without having to give weight to all the

societal factors pertinent to that decision, the net result

may be a decrease, not an increase, in overall health of

children.

Finally, the court of appeals opinion has broad impli-

cations for Title VII doctrine beyond the fetal protection

area. As noted, that opinion vastly expands the con-

cept of the bfoq defense to include broad societal con-

cerns with little direct impact on the business itself.

Moreover, the opinion below encourages other employ-

ers to come forward with “neutral” rationales for facial

discrimination, thereby transforming a disparate treat-

ment case into a disparate impact case far harder for the

discrimination claimant to prosecute and prove. The

effect would be fundamentally to restructure Title VII

litigation as we have known it, and to weaken its pro-

tections against discrimination.

CONCLUSION

For the above-stated reasons, this petition for a writ

of certiorari should be granted.

Respectfully submitted,