Appendix — International Union, United Automobile, Aerospace & Agricultural Implement v. Johnson Controls, Inc.

“89-1215.

Supreme Court, US,

| Fe oe aes

‘'

JAN 29 1990

JOSEPH F. SPANIOL., UR,

CLERK

No. —————

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA, et al.,

Petitioners,

Vv.

JOHNSON CONTROLS, INC.,

Respondent.

APPENDIX TO

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 MARSHA 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 - Eres PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001

@ GS 00

IGA.

TABLE OF CONTENTS

Page

. Opinion of the United States Court of Appeals for

Weep Tepes CII isin bncccceeccectet eee la

. Decision and Order of the United States District

Court for the Eastern District of Wisconsin Grant-

ing Defendant’s Motion for Summary Judgment... 102a

. District Court dudement .................-.......... RPO Pn 122a

. Court of Appeals Judgment ......................-.eececeeeeeees 123a

. Order Extending Time for Filing of Petition for

i Bo, ___, AEE 125a

. Order Further Extending Time for Filing of Peti-

tion for Writ of Certiorari ........ ricsbaniniemniiana a 126a

. Equal Employment Opportunity Commission Policy

Guidance Document on United Auto Workers v.

Johnson Controls, F.2d , 091 EPD * 39,359

tS, a ike 127a

. Statutory Provisions Involved ..........................0........ 145a

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 88-1308

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA, UAW, et al.,

Plaintiffs-A ppellants,

and

LOCAL 322, ALLIED INDUSTRIAL WORKERS

OF AMERICA, AFL-CIO,

Intervening Plaintiff-Appellant,

V.

JOHNSON CONTROLS, INC.,

Defendant-A ppellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 84-C-472—Robert W. Warren, Judge.

ARGUED SEPTEMBER 15, 1988—

REARGUED En Bane JUNE 15, 1989—

DECIDED SEPTEMBER 26, 1989

Before BAUER, Chief Judge, CUMMINGS, Woop, Jr.,

CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE,

MANION, and KANNE, Circuit Judges.

2a

Correy, Circuit Judge. Since 1982 Johnson Controls,

Inc. hereinafter “Johnson Controls” or “Johnson’”) has

maintained a fetal protection policy designed to prevent

unborn children and their mothers from suffering the ad-

verse effects of lead exposure. International Union, United

Automobile, Aerospace and Agricultural Implement Work-

ers of America, UAW ‘hereinafter “UAW”), several

UAW local unions and a group of individual employees

brought suit alleging that this policy violated Title VII,

42 U.S.C. $ 2000e, et seg.' The district court granted

summary judgment in favor of Johnson Controls and the

plaintiffs appealed. This case was originally argued be-

fore a panel of this court and the panel’s opinion was

circulated among all the members of the court pursuant

to Cireuit Rule 40/f).*. Prior to publication of the panel

opinion, a majority of the members voted to hear the case

before an cn bane court and. following rehearing en bane,

a majority of the court voted to affirm the decision of the

district court.

I.

The Battery Division of Johnson Controls, Ine., was

created upon Johnson Controls’ 1978 purchase of Globe

1 More than two years later, Local 322 of the Allied Industrial

Workers of America attempted to intervene under Fed. R. Civ.

P. 24(a) (2). The district court denied the motion. and Local 322

has appealed. We affirm the district court's decision on the basis

of the motion’s untimeliness. See Schultz v. Conn rv, 863 F.2d 551,

552-55 (Tth Cir. 1988).

* Circuit Rule 49(f) reads in pertinent part:

“Rehearing Sua Sponte Before Decision. A proposed opinion

approved by a panel of this court adopting a position which

would overrule a prior decision of this court or create a con-

flict between or among circuits shall not be published unless

it is first circulated among the active members of this court

and a majority of them do not vote to rehear in bane the issue

of whether the position should be adopted. In the discretion

of the panel. a proposed opinion which would establish a new

rule or procedure may be similarly circulated before it is issued

”

eee

3a

Union, Ine. (hereinafter “Globe” or “Globe Union”).°

Globe Union was formed through the consolidation of

two battery companies and had been in the battery busi-

ness for almost fifty years before Johnson’s purchase.

Globe Union and Johnson Controls have maintained on-

going efforts to improve industrial safety through meas-

ures designed to minimize the risk lead poses to those

directly involved in the manufacturing of batteries.‘

The steps that Globe Union and Johnson Controls have

taken to regulate lead exposure have not been focused

merely on complying with governmental safety regula-

tions, but originate from their longstanding corporate

concern for the danger lead poses to the health and wel-

fare of their employees, their employees’ families and the

general public. During the period of the 1970’s when

OSHA’s regulation of employee exposure to lead was vir-

tually non-existent, Johnson Controls’ predecessor, Globe

Union, initiated a large number of innovative programs

in an attempt to control and regulate industrial lead ex-

posure. For example, in 1969, Dr. Charles Fishburn,

M.D., who later became one of the primary proponents of

Johnson Controls’ fetal protection policy, instituted pro-

grams for monitoring employee blood lead levels.* In an

attempt to manage lead exposure, other safety programs

3 Following the purchase, Globe Union operated for some two

years as a wholly-owned subsidiary of Johnson Controls, after

which time it became a division of Johnson Controls, Inc.

4In fact, the Battery Division of Johnson Controls employs four-

teen people in its department that implements its corporate health

and safety program that includes the fetal protection policy at

issue in this case.

5 Dr. Fishburn is a board-certified specialist in occupational medi-

cine, maintains a private practice and also has worked as Assis-

tant Clinical Professor at the University of Wisconsin Medical

School, Department of Preventive Medicine. Since 1963, Dr. Fish-

burn has evaluated between 25,000 and 50,000 employees for lead

exposure.

4a

were initiated at Globe and Johnson including a lead

hygiene program, respirator program, biological monitor-

ing program, medical surveillance program and a pro-

gram regulating the type, use and disposal of employee

work clothing and footwear to minimize lead exposure.

Globe Union also transferred employees out of high lead

environments whenever a physician’s medical evaluation

report established that the individual had a high blood

lead level. In the case of such transfers, medical removal

benefits were provided to the employee before OSHA re-

quired such compensation.® Globe Union and Johnson

Controls have continued to address their serious concern

for industrial safety through efforts to design and regu-

late lead manufacturing areas to reduce employee lead

exposure. For example, laminar flow pumps constantly

supply a down draft of low velocity clean air to improve

the environment of workstations where employees deal

with lead. Central vacuum systems and powered floor

scrubbers and sweepers are used to keep the manufac-

turing area as clear of lead dust as possible. Since John-

son Controls’ purchase of Globe Union in 1978, it has

spent approximately $15 million on environmental en-

gineering controls at its battery division plants.

Globe Union, Johnson Controls’ predecessor, established

its first policy regarding fetal protection from lead expo-

sure in 1977 as part of its comprehensive efforts to pro-

tect its employees from exposure to lead. Globe Union’s

announcement of the policy in a memorandum to battery

plant and personnel managers stated:

“This change [the announced policy] has come about

slowly as more and more medical opinion and evi-

dence is persuasive of the risk to the unborn, devel-

oping child.

* These benefits provide compensation for transfer from a posi-

tion for medical reasons.

5a

We have stopped short of excluding women capable

of bearing children from lead exposure, but do feel

strongly that those women who are working in lead

exposure . . . and those women who wish to be con-

sidered for employment be advised that there is risk,

that we recommend not working in lead if they are

considering a family, and further that we ask them

to sign a statement that they have been advised of

this risk.”

(Emphasis in original). In its 1977 “Statement of

Risks,’ Globe also observed that at that time scientific

and medical evidence had not as yet conclusively estab-

lished the risk lead exposure posed to the unborn. How-

ever, after noting possible risks the 1977 policy statement

read:

“We would have to say that it is, medically speak-

ing, just good sense not to run that risk [lead expo-

sure] if you want children and do not wish to expose

the unborn child to risk, however small, and so rec-

ommend that you counsel with your family doctor

and advise us of your wishes to transfer.”’

Johnson adopted its current fetal protection program

in 1982 following its determination, based upon scientific

research, that it was medically necessary to bar women

from working in high lead exposure positions in the bat-

tery manufacturing division. The fetal protection policy

applies to work environments in which any current em-

plovee has recorded a blood lead level exceeding 30,g dl

during the preceding year or in which the work site has

yielded an air sample during the past year containing a

lead level in excess of 30xg per cubic meter.’ The policy

7 These lead levels coincided with the Centers for Disease Con-

trol’s standard in effect at that time which concluded that blood

lead levels in excess of 30 ,g dl were excessive for children. (As

will be noted later in this opinion, the Centers for Disease Con-

trol have since revised downward the acceptable blood lead levels

for children). We note that, because of Johnson’s concern for the

6a

recites that women with childbearing capacity will neither

be hired for nor allowed to transfer into those jobs in

which lead levels are defined as excessive. A grand-

father clause in Johnson's fetal protection policy permits

fertile women who were assigned to high lead exposure

positions at the time of the adoption of the policy to re-

main in those job assignments if they are able to main-

tain blood lead levels below 30 »g dl.” Those employees

who are removed from positions because of excessive lead

levels are transferred to another job in Johnson’s employ

without suffering either a loss of pay or benefits.

The major reason Johnson adopted its current fetal!

protection policy: was the inability of the previous vol-

untary policy to achieve the desired purpose: protecting

pregnant women and their unborn children from dan-

gerous blood lead levels. Between 1979 and 1983, at

least six Johnson Controls employees in high lead expo-

sure positions became pregnant while maintaining blood

lead levels in excess of 20 micrograms. In addition, at

mother and the unborn baby, the lead levels Johnson established

in its fetal protection policy are below the 50 p& m3 airborne

lead levels and 50 pe 100g blood lead levels permitted under

OSHA's lead exposure regulations for all employees. 29 C_F_R.

§ 1910.1025(c) (1) and (k)(1)(i)(D). While OSHA blood lead reg-

ulations utilized the measure of ug per 100 grams and Johnson

Controls’ standard uses the measure of ug per deciliter, the parties

have treated these measures as equivalent and we shall also treat

them in this manner.

® The fetal protection policy defines women of childbearing capac-

ity. as: “All women except those whose inability to bear children

is medically documented.”

® Under the fetal protection policy an incumbent female employee

with a blood lead level reading above 30 p& dl is permitted a pe-

riod of time to reduce her blood lead level to 20 pe di. If the blood

level of a fertile female employee is in excess of 40 pe di, she is

transferred at the earliest possible date. The record does not dis-

close the number, if any, of female employees who remain in high

lead exposure positions or who were transferred as a result of

the fetal protection policy.

7a

least one of the babies born to this group of emplepece

later recorded an elevated blood lead level Moreower,

Johnson Controls’ medical consultant. Dr. Fishbern, tee

tified as follows concerning a specific lead-related inci-

dent :

“Q: Now, let's talk in terms of prier to 1963, at any

of the other Globe plants. do you have any

knowledge or do you have an opinion that im any

instances the exposure of the mother—<r the

blood-lead level of the mother while she wae

pregnant had an effect on the fetus and. there

fore, the child?

A: [Dr. Fishburn} Well, I'm sot aware of ony

specific instances other than the ome. which was

in the early 80s, about 191

Q: And where was that’

A: Pardon?

Q: Where was that? What plent’

A: The Globe plant’

Q: Yes

A: It was in Owoems.

Q: Where's the Owoxe plant’

A: In Owosso, Michigan.

Q: In just simple terms what wae the aotere of

the problem?

A: The nature of the problem was hyperactivity

and control of the child. Amd the child bed of

Vated bland-leads and protopecnty mma.

Q: In your medical judgment war the probes of

the child affected in any way by the eaperere

of the mother dunng pregnancy *

A: In my opinion the history of the

and the difficulty «te was having with him could

Sa

very well and probably was due to the lead that

he had.”

In announcing its new, more defined policy, Johnson

Controls emphasized its continuing interest in the protec-

tion of employees and their families from occupational

health hazards and was responding to the increased un-

derstanding of the risk of lead exposure that had de-

developed in the five years since it established its for-

mer voluntary policy:

“We have over the years developed policies to pro-

tect the health of our employees whenever the na-

ture of their duties may expose them to a health

hazard and to prevent members of their families

from being exposed to a health hazard because of

their employment with Globe Battery Division.

Medical research has shown that a woman’s exposure

to lead can cause il] effeets on the health of her un-

born child because the lead absorbed in the mother’s

blood as the result of this exposure can cross the

placenta and mix with the child’s blood. This has

been acknowledged by the Occupational Safety and

Health Administration.

Medical research also shows that a risk to the un-

born child’s health is present at a much lower blood-

lead level than an adult. The ill effects of the unborn

child can oceur during the early stage of pregnancy,

before the mother is aware that she is pregnant. and

can continue throughout the pregnancy.

1 In response to questioning concerning incidents of adverse ef-

fects upon fetuses or children resulting from maternal lead ex-

posure, Dr. Fishburn also stated that among employees at Johnson

Controls’ Milwaukee, Wisconsin, battery plant (covered by a con-

tract with the AIW): “Mothers who have had children ... have

gone to the City Health Department.”” However, obviously because

of the confidentiality of such visits. Dr. Fishburn also stated that:

“I don’t have the data on all of the individuals that did that.”

9

Because of this, it is the Division’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 exercise of job bidding, bumping. transfer or

promotion rights.

This policy is intended to reduce or eliminate the

possible unhealthy effects of lead on the unborn chil-

dren of pregnant employees and applicants. It does

not apply to those women who have medical con-

firmation that they cannot bear children. However,

the policy is in no way intended to support or en-

courage women of childbearing capability to seek to

change this status. Employees are strongly advised

against any such action.”

Prior to adopting its updated fetal protection policy,

Johnson seriously considered alternatives to the exclusion

of women with childbearing capacity from high lead ex-

posure positions, but after research and consultation with

medical and scientific experts found itself unable to struc-

ture and implement any alternatives which would ade-

quately protect the unborn child from the risks asso-

ciated with excessive lead exposure. Johnson's experi-

ence demonstrated that the voluntary exclusion program

was ineffective. To date neither Johnson nor any other

battery manufacturer has been able to produce a lead

free battery, or to utilize engineering research and tech-

nology to implement a system or procedure capable of

reducing the lead exposure of its employees to acceptable

levels for fertile women. Limitation of the feta] protec-

tion policy to women aciually pregnant was founa inef-

fective because there is the very definite possibility that

lead exposure will occur between conception and the

time the woman discovers her pregnancy.'' Such a limi-

'! There will normally be some delay in diagnosis of pregnancy :

“The first sign of pregnancy and the first reason most preg-

nant women see a physician is absence of an expected men-

10a

tation is further inadequate because reduction of blood

lead levels following removal from a lead exposure area

requires a significant length of time that frequently ex-

tends well into the pregnancy term. Limitation of the

policy to women_ planning pregnancy also was not found

io be a suitable alternative because of one of the exigen-

cies of hfe, the frequency of unplanned or undetected

pregnancies. Permitting fertile female employees to at-

tempt to maintain a blood lead level below 30 »g dl or

utilizing the mean or median blood lead levels of current

workers as a measure of whether a woman should be

permitted in a position would also not effectively pro-

tect the unborn child. The reason these actions would be

inadequate is that an employee’s risk of high lead levels

is usuaily greatest immediately after commencement of

work in a high lead environment.'*

Dr. Fishburn, Johnsen Controls’ medical consultant,

noted that Johnson and other corporations manufactur-

strual period. If a patient’s periods are usually regular, absence

of menses for 1 wk or more is presumptive evidence of preg-

nancy. Pregnancies are usually dated in weeks, starting from

the first day of the last menstrual period. Thus, if the patient's

menses were regular and if ovulation did occur on day 14 of

the cycle, obstetric dates are about 2 wk longer than embry-

ologic dates. If the patient’s periods are irregular, the dif-

ference will be greater or less than 2 wk. Usually, 2 wk after

missing a period the patient is considered to be six wk preg-

nant and the uterus is correspondingly enlarged.”

R. Berkow, The Merck Manual of Diagnosis and Therapy, 1744-45

(14th ed. 1987). Thus, even in ideal cases, there is normally some

time lag between pregnancy’s onset and diagnosis. In other cases,

a mother’s failure to perceive a pregnancy or a delay in receiving

prompt medical care can result in a pregnancy diagnosis later in

pregnancy. Under a policy requiring removal only on discovery

of pregnancy, the unborn child would be subject to lead exposure

throughout the period prior to diagnosis of pregnancy.

12 This conclusion was based upon Johnson’s experience recounted

in the testimony of Jean Beaudvin, Manager of Health, Safety and

Environmental Control for the Battery Division.

lla

ing batteries accept and routinely follow these medical

policies:

“Q: Now, you testified as to what other industries

had done in the past with respect to women

working—women capable of bearing children

working in high lead areas. Are you familiar

with other companies as to their practices?

A: [Dr. Fishburn] Yes.

Q: And which companies?

A: Well, I’m familiar with a good many compa-

nies that I’ve worked with here in the area in

foundry industry. I’m familiar with General

Motors, Dow Chemica!, Ford Motor Company,

Owens-Corning. There’s a large number of

large and small companies that I’m familiar

with, and where there are occupational standar<

programs within those companies I’ve exchanged

the information with them.

Q: And what problems do they have in regard to

this problem?

A: In regard to lead even the doctors—-as I said

Dr. Kehce or Dr. Bellmap here——any doctor that

has worked with lead, either in the mines as I

did with Bellmap, or smelters, primary smelter

we did not, and—and I was never taught to place

a reproductive female in the average work ex-

posure of lead. And furthermore, before the 60s,

to my knowledge, no women were working in

lead exposures. It was Kehoe’s opinion at the

time that any doctor that would allow this to

happen was committing malpractice.

Q: Now this was—now my question was: Are you

familiar with what other companies are doing

now?

A: Yes.

l2a

Q: What are they doing?

A: They are vestrieting women from lead exposure

who ean have children.”

In altering its fetal protection policy to more effee-

tively protect the unborn child and its mother, Johnson

responded to the most recent medical evidence which

established that lead exposure in utero presents a sub-

stantial health risk to the unborn child, as well as its

female employees, and believed that Title VII would allow

it to address this risk,

I.

Proper analysis of the Title VII issues this case pre-

sents requires a thorough understanding of the follow-

ing fundamental question: Does lead pose a health risk

to the offspring of Johnson's female employees? In con-

sidering the evidence in the record on this subject it is

important to note that beth the UAW and Johnson Con-

trols agree on appeal that a svhstantial health hazard

to the unborn child in the womb has been established.

The UAW admits in its brief that it is clear et...

substantial risk of harm to the fetus... has been es-

tablished.” UAW Brief at 33. Similarly, Johnson Con-

trols states that “{t]he evidence in the record on |sub-

Stantial risk of harm to the fetus! is overwhelming.”

Johnson Controls Brief at 22.

The record very clearly establishes that once lead is

deposited in a mother’s blood, it crosses the placenta and

affects her unborn child. Because the fetus’ blood system

is nourished by the mother, the unborn child possesses

approximately the same blood lead level as the mother.'*

1 See Affidavit of J. Julian Chisholm, M.D., Director, Lead Pro-

gram, J. F. Kennedy Institute and Associate Professor of Pedi-

atrics, Johns Hopkins School of Medicine (hereinafter Dr. Chisholm

Aff.) at °6 (“During pregnancy the lead in the mother’s blood

transfers across the placenta to the fetal circulation”); Affidavit

of Dr. Anthony R. Scialli, M.D... Director. Reproductive Toxicology

13a

It is similarly undisputed that the unborn child “is med-

ically judged to be at least as sensitive, and, indeed, is

probably even more sensitive to lead than the young

child.” Affidavit of J. Julian Chisholm, M.D. ‘herein-

after Dr. Chisholm Aff.} at %6.'' See Affidavit of Dr.

Anthony R. Scialli, M.D. ‘hereinafter Dr. Scialli Aff.) at

15 (“{Blecause of the extremely rapid development of

the central nervous system during gestation, the fetus

may be even more sensitive to toxic effects of lead than

the young child”);'* Affidavit of M. Donald Whorton,

M.D. (hereinafter Dr. Whorton Aff.), at ©8 (“{Recent

medical studies] suggest that even relatively low levels

of lead exposure to the fetus can cause damage to the

higher brain function resulting in decreased neuro-

behavioral development in the child’); Deposition of

Marvin S. Legator, Ph.D. (hereinafter Dr. Legator Dep.)

at 49 (UAW witness) (“There is no question about the

sensitivity of the fetus... . I don’t think one could argue

about the fact that lead affects the fetus”); "7 Deposition

of Ellen Silbergeld, Ph.D. (hereinafter Dr. Silbergeld

Dep.) at 21-23 (UAW witness! (Noting that in the area

Center (hereinafter Dr. Scialli Aff.) at ©6 (“During pregnancy the

mother’s blood lead passes through the placenta to the fetus.

Therefore, the fetus’ blood lead level is approximately the same

as that of the mother”). See also Occupational Safety and Health

Administration, U.S. Department of Labor. Final Standard for Oc-

cupational Exposure to Lead: Attachments to the Preamble. 43

Fed. Reg. 54,395 (1978) (“There is conclusive evidence that lead

crosses the placenta of pregnant women and enters the fetal tis-

sues; lead levels in the mother’s blood are comparable to concen-

trations of lead in the umbilical cord at birth”).

' Director, Lead Program. John F. Kennedy Institute and Asso

ciate Professor of Pediatrics, Johns Hopkins Schoo! of Medicine.

'S Director, Reproductive Toxicology Center.

Senior Occupational Physician Epidemiolowist. Environmental

Health Associates, Inc.. Oakland, California.

'T Professor and Director of the Division of Environmental Tox-

icology, University of Texas Medical Branch.

l4a

of central nervous system impairment a young child is

probably more sensitive than an adult and that the con-

sequences for the young child and the fetus are similar) .'®

The Centers for Disease Control summarized these basic

facts in a document questioning the efficacy of current

OSHA standards in protecting the unborn child and im-

plying that an unborn child is adversely affected by lead

levels lower than 30 x»g dl reflected in Johnson Control’s

fetal protection policy:

“In a pregnant woman, lead crosses the placenta and

lead concentrations in umbilical cord blood are nearly

equal to those in maternal blood. Since the growing

brain of the fetus is likely to be at least as sensitive

to the neurologic balance of lead as the brain of a

young child, umbilical cord blood levels should be at

least below 25 »q/dl. Therefore, the OSHA standard

is probably not sufficiently strict to protect the fetus.

Further study is needed to define acceptable lead

levels among women of childbearing age.

“Ideally, engineering features should prevent workers

from being exposed to lead dust and vapors. When

workers are exposed, compliance with Occupational

Safety and Health Administration (OSHA) regula-

tions appears to be effective in preventing them from

transporting lead home to children. ... The preven-

tion of lead exposure to the fetus needs special em-

phasis. Women of childbearing age should be ex-

cluded from working at jobs where significant lead

exposure occurs.”’ **

18 Senior Scientist, Toxic Program, Environmental Defense Fund.

1? Centers for Disease Control, U.S. Department of Health and

Human Services, Preventing Lead Poisoning in Young Children 7,

20, 21 (1985) (emphasis added). In this same document the Centers

for Disease Control announced that based upon “current knowl-

edye concerning screening, diagnosis, treatment, followup, and en-

vironmental intervention for children with elevated blood lead

15a

The chief reason why an unborn child’s lead exposure

is of such great concern is that it has been medically es-

tablished that lead attacks the fetus’ central nervous sys-

tem and retards cognitive development. See Dr. Chisholm

Aff. at © 6 (“|H]arm [to the fetus} includes... retarded

cognitive development which may result in learning defi-

ciencies and behavioral disorders”) ; Dr. Scialli Aff. at © 7

(“The potential damage to the central nervous system of

the fetus from lead exposure includes intellectual and

motor retardation, behavioral abnormalities and deficien-

cies in learning abilities. It is my medical opinion that

such damage may be permanent”); Dr. Whorton Aff. at

"8 (“!Recent medical studies] suggest that even rela-

tively low levels of lead exposure to the fetus can cause

damage to the higher brain function resulting in de-

creased neuro-behavioral development in the child”) ; Affi-

davit of Dr. Paul B. Hamon, Ph.D., Professor, Environ-

mental Health, University of Cincinnati ‘hereinafter Dr.

Hammond Aff.) at ©3 (‘{As] the director of a study

that is currently being conducted in Cincinnati on the

health effects of lead exposure on children... [we]

analyze|| the subsequent mental development of children

who have been exposed to lead both in utero and post-

natally. The initial results of this ongoing study

establish that exposure of the fetus to maternal blood

levels in excess of 12 micrograms str deciliter of whole

blood creates a significant risk of low birth weight and a

clear decrement in the subsequent mental development of

the infant’): Dr. Silbergeld Dep. at #4. | Describing

studies of child exposure to lead, in which she partici-

pated, which are “highly consistent with reports of hyper-

activity, decreased attention span, learning- problems

which have been described in (lead exposed) children”),

and at 49-50 (Reporting that studies of prenatal lead

levels.” it was lowering its definition of an elevated blood lead

level from 30 to 25 ,¢ dl. Jd. at 1. Elevated blo d level, accord-

ing to the CDC, “reflects excessive absorption of lead.” Jd.

l6a

exposure in which she participated found similar effects

to post-natal lead exposure. These effects are “substan-

tial irreversible cellular and functional damage to the

brain’) .*" ow

Unlike physical birth defects. such as those associated

with thalidomide’ jead’s sometimes subtle damaging

effects may not fully manifest themselves until the child

is diagnosed as having learning problems in a school set-

ting some five to six years after birth:

“What we are worried about are very subtle things,

the ability to really affect learning ability. And so

far as impairing the child’s progress, they really

aren't evident until he gets into school. He discovers

that he can’t remember, that his brain cannot pay

attention, what our psychologists here called deficits

in auditory processing, which is a fancy way of say-

ing they can't understand what they hear, can’t proe-

ess it, and use it effectively. And those things will

impair a enild perhaps toward the end of the first

grade, particularly in the second grade.”

Deposition of Dr. J. Julian Chisholm, Jr., M.D.., Director,

Lead Program, John F. Kennedy Institute and Associate

Professor of Pediatrics, Johns Hopkins School of Medicine

‘hereinafter Chisholm Dep.), at 27.

Probably the worst aspect of lead’s influence upon an

unborn child’s future intellectual] development is that its

“" indeed, as noted in section I, supra, Johnson Controls experi-

enced an incident of hyperactivity in a child of & Woman in the

work force of its Owosso, Michigan, battery plant.

“' Thalidomide is “fa sedative and hypnotic { drug] commonly

used in Europe in the late 1950's and early 1960's. Its use was dis-

continued because it was discovered to cause serious congenital

anomalies in the fetus, notably amelia | absence of limbs} and pho-

comelia | absence of the proximal portion of a limb], when taken by

a woman during early pregnancy.” Dovland’s Illustrated Medical

Dictionary 1353 (26th ed. 1981).

17a

effects have frequently been found to be irreversible.22

Further, the most recent research suggests that the un-

born chil! may be affected at lead levels previously be-

lieved safe. See J.M. Davis & D. Svendsgaard, Lead and

Child Development, 329 Nature 297 (1987) (Collecting

results of recent studies in this area),

Lead exposure ean also pose other physical threats to

the unborn child such as reduction of the infant’s birth

Weight, premature delivery, and stillbirth. See Dr. Chis-

holm Aff. "6. Lead may also affect the other vita] fetal

organs including, but not limited to, the liver and kid-

neys.~*

The danger resulting from lead exposure cannot simply

be avoided through removing a pregnant woman from

lead exposure promptly after the discovery of pregnancy.

Dr. Chisholm. 2 recognized expert in the research field of

treatment and prevention of lead poisoning in young chil-

dren, observed that “excluding only women who are ac-

tually pregnant from work areas where there are ele-

vated blood lead levels would not sufficiently protect the

health and safety of the unborn child.” Dr. Chisholm

Aff. at © 10. This is true because /ead continues to exert

an effect upon the mother and her unborn child for a siq-

“= See Dr. Chisholm Aff. at © 6 (“Medical studies released in the

last year or two... . Survest that exposure to the fetus of blood

lead levels as low as 10 micrograms presents grave risk of per-

manent harm to the central nervous system of the fetus”); Dr.

Scialli Aff. at © 7 (“It is my medical opinion that 'the damave lead

Causes to the fetus’ central nervous system! may be permanent”):

Dr. Silberyreld Dep. at 19-50 (Reporting that studies of prenatal

lead exposure in which she participated found similar effects to

post-natal lead exposure. These effects are “substantial irreversi-

ble cellular and functional damage to the brain”).

“ Sce Dr. Silberyeld Dep. at 50-52. Early in pregnancy, lead’s

effect upon the mother’s secretion of the hormone progesterone

can prevent implantation of the fertilized ovum, resulting in the

loss of pregnancy. Sce Dr. Chisholm Dep. at 33.

18a

=

nificant period of time after she has been removed from

lead exposure. Dr. Chisholm’s uncontroverted affidavit

explained:

.

'S|ubstantial medical evidence . . . establishes that

lead remains in the body for a significant period of

time after removal from a high lead environment.

Lead builds up not only in the blood and soft tissues,

but is also stored in the bones. Following removal

from the high lead environment, as the lead built up

in the blood and soft tissues leaves the body, the lead

in the bone begins to turnover, thus maintaining high

blood lead levels even jong after removal. As a gen-

eral rule of thumb, it takes approximately two or

three times as long for the blood leads to decrease

as it did for such blood levels to increase. Therefore,

if a woman is exposed to blood lead levels in excess

of 25 or 30 micrograms for any length of time, such

levels will not decrease sufficiently to avoid damage

to the fetus, even if she is removed when the preg-

nancy is discovered.”

Dr. Chisholm Aff. at © 10. Sce also Whorton, supra note

16, at 8 (“Since lead is an accumulative toxicant which

is stored in the bone, with a half-life in the body of 5

to 7 years, a Woman with a significant blood lead burden

would pose a potential hazard to any conceptus for many

years after exposure’s; Dr. Silbergeld Dep. at 27-28

(For all purposes there is continuing exposure to lead

even after removal from sources of lead... . If it were

possible to take a person into a lead-free environment

after an episode of exposure, the turnover of lead is

probably on the order of 100 days. So within a year or

so there would be a reduction in lead. There is also, of

course, a rapid removal of lead from the blood into the

bones [and] soft tissue that is no longer available for

circulation. But considering that most people are not

removed to lead-free environments, even if they go from

areas of relatively high exposure to lower exposures,

19a

there is continuing cyclic . . . exposure to lead” (em-

phasis added). Furthermore, because lead is stored in the

mother’s bones, and “because the bones may decalcify

during pregnancy in order to provide the fetus with

calcium, there may be an additional danger of transfer of

stored lead to the fetus.”’ Dr. Chisholm Aff. at 910. See

also Whorton, supra note 16, at 7-8 (“|Dr. W.] Manton

[in a 1985 edition of the British Journal of Industrial

Medicine} reported on a longitudinal study of blood lead

levels in a woman before, during and after pregnancy.

He reported a doubling of pre-pregnancy blood levels dur-

ing pregnancy and suggest| ed! mobilization of lead from

bone during pregnancy as the mechanism”) (footnote

omitted). These conclusions are consistent with research

that OSHA relied upon and quoted in establishing its

1978 lead standard:

“The placenta also has considerable storage capacity,

and during the first few months of pregnancy, it

grows tremendously in size while the fetus remains

relatively small. Calcium along with other substances

is stored in the placenta to be used in the later

months of pregnancy for growth by the fetus. It

could be expected that lead would be similarly

stored.”

Occupational Health and Safety Administration, U.S. De-

partment of Labor, Final Standard for Occupational Ex-

posure to Lead: Attachments to Preamble, 43 Fed. Reg.

54,395 (1978) (quoting study of Dr. Vilma Hunt, Associ-

ate Professor of Environmental Health, Pennsylvania

University, contained in OSHA's record) .*'

4 OSHA went on to observe that

“Dr. Hunt would not exclude the potential for lead-induced

the presence of lead in fetal tissue does not necessarily indicate

that the observed effects occurred during the second and third

trimester; they may, in faci, be the result of earlier accumula-

tions of lead in the first trimester of pregnancy. ... [T]he

The overwhelming evidence in this record

that an unborn child's exposure to lead creates

tial health risk involving a danger of

This evidence clearly approaches a “general

within the scientific community,” and

to show that within that community

siderable body of opinion that significant

the unborn child from exposure to lead.” Wri

1

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ik

3!

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:

7

i

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:

2

é

3

Having considered both the nature of the risk of harm

that lead exposure presents to the unbern chil’ and the

mother and the policies Johnson implemented in re<pense

to this problem, we now turn to the question of the proper

legal analysis to be applied te Johnson's feta! protection

program under Title VII. The question presented ix

should we follow the lead of the Fourth Cirewit, the Elev-

enth Circuit and the EEOC in determining that these pel-

icies can be justified with a “business necessity” defense

or must we conclude that these policies may only be jue

tified with a bona fide occupational qualification defense.

In approaching this issue we are cognizant of the man-

dates the United States Supreme Court has recited on

two occasions concerning the necessity of avoiding rigid

fetus [can be directly affected by lead which i« aheorted der

ing the first trimester of prewmamy. A+ the ple «eta ie meter.

ing, and the placental barrier ix thinning. it i« <‘toring cakrom

necessary for later fetal <keletal production €Comeemeitant with

the first evidence of fetal skeletal cakifcation. kad «© eheerved

present in the fetus. Like calcium. bed may be stored io the

placenta during the early staves of pregnamy te be reheaeed

when the placenta becomes | unctiomal”

id. (citations omitted).

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7

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4

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78

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of the promo

9 Meet Renews

sarily applicable im every respect te cferwmg farted

situations” (Neleea®! Deeg, O11 US ot OO

a.13).~

‘Footnete cmnitted:. The throst of thee peated Se

preme Court pr moumewmmets is hal comets are rengenred

oe avoed inte vibhe appeacet ee of pudiwne ) dev ed greed

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4

22a

question of the defenses available to an employer under

Title VII in a case challenging a fetal protection pro-

gram. The first court of appeais to address this question

was the Fourth Circuit in Wright v. Olin Corp., 697 F.2d

1172 ‘4th Cir. 1982). That case involved a fetal protec-

tion program very similar to the one Johnson instituted,

in that it forbade any fertile woman from working in a

job which “ ‘may require contact with and exposure to

known or suspected abortifacient or teratogenic agents.’ ”’

Olin, 697 F.2d at 1182. In considering which of several

possible theories or claim and defense should apply in a

Title VII analysis of a fetal protection policy, the Fourth

Circuit observed:

“We must start by conceding that the fact situation

‘the fetal protection policy| presents does not fit with

absolute precision into any of the developed theories.

It differs in some respects-——either in its claim or de-

fense-elements—from each of the paradigmatic fact

situations with which the different theories have been

centrally concerned. This of course accounts for the

conflict on the point between the parties.

“That there would be such fact situations in Title VII

litigation has always been recognized by the Su-

preme Court as it has developed and applied the dif-

ferent theories. The Court has continually admon-

ished, and indeed demonstrated in its own decisions,

that these theories were nol cxrpected nor intended to

operate with rigid precision with respect to the in-

finite variety of factual patterns that would emerge

in Title VII litigation. So has this court.”

697 F.2d at 1184 ‘emphasis added, footnotes omitted).

The court applied the disparate impact business neces-

sity theory of claim and defense that normally is applied

only in cases in which an employer's poliev is “facially

neutral.” Even though the court recognized that the facial

neutrality of a fetal protection policy “might be subject

23a

to logical dispute, the dispute would involve mere seman-

tie quibbling having no relevance to the underlying prin-

ciple that gave rise to this theory.” 697 F.2d at 1186.

Because a fetal protection policy involves motivations and

consequences most closely resembling a disparate impact

case, the Fourth Circuit felt it should be analyzed under

the disparate impact business necessity theory. See id.

The Fourth Circuit defined the business necessit) defense

in the context of a fetal protection policy as requiring a

demonstration that “significant risks of harm to the un-

born children of women workers from their exposure dur-

ing pregnancy to toxic hazards in the workplace make

necessary, for the safety of the unborn children, that

fertile women workers though not men workers, be ap-

propriately restricted from exposure to those hazards

.... 697 F.2d at 1190 (footnote omitted). However,

the Fourth Circuit permitted this evidentiary demonstra-

tion to be rebutt.d with proof that “there are ‘acceptable

alternative policies or practices which would better accom-

plish the business purpose . . . [or protect against the risk

of harm], or accomplish it equally well with a lesser dif-

ferential . . . impact [between women and men work-

ers}.’” *

*5 Jd. at 1191 (quoting Robinson v. Lorillard Corp., 444 F.2d 791

(4th Cir.), cert. dismissed, 404 U.S. 1006 (1971)). Johnson Con-

trols’ primary interest in this case is protecting the development and

health of female employees and their unborn children. In constru-

ing the business necessity defense the Fourth Circuit in Olin co-

gently observed

“We do not think that a general basis for the ‘business neces-

Sity’ asserted here need be sought in other considerations than

the general societal interest—reflected in many national laws

imposing legal obligations upon business enterprises—and hav-

ing those enterprises operate in ways protective of the health

of workers and their families, consumers, and environmental

neighbors.

For this reason it is irrelevant that, as claimants point out,

the mere purpose to avoid potential liability and consequent

economic loss may not suflice, standing alone, te establish a

2da

The Eleventh Circuit utilized a similar analysis in

Hayes v. Shelby Memorial Hospital, 726 2d 1543 (11th

Cir. 1984) (Tuttle, J.i. In Hayes a hospital terminated

a pregnant woman's employment upon discovering her

pregnancy. In Hayes the Court utilized the elements of

the business necessity defense found in Olin to establish

that the involved policy was not “facially discriminatory.”

The Eleventh Circuit stated: “In other words, the em-

ployer must show (1) that there is a substantial risk of

harm to the fetus or potential offspring of women em-

ployees from the women’s exposure, either during preg-

naney or while fertile, to toxic hazards in the workplace

and (2) that the hazard applies to fertile or pregnant

women, but not to men.” 726 F.2d at 1548 (footnote

omitted). The theory underlying the facial neutrality

analysis utilized in Hayes is that a policy meeting the

above criteria “is neutral in the sense that it effectively

and equally protects the offspring of all employees.’ 126

F.2d at 1548. If facial neutrality is established, the court

proceeds to a disparate impact business necessity analy-

sis. 726 F.2d at 1552. Under the Eleventh Circuit's

analysis. if facial neutrality is not established, the em-

plover must present a bona fide occupational qualification

def nse to justify its fetal protection policy.

The Eleventh Circuit went on to set out the disparate

impast business necessity analysis it would apply in cases

where facial neutrality was established. The court recog-

nized that a fetal protection policy, even if “facially neu-

tral,” “clearly has a disproportionate impact on women

bociness necessity defense. See Los Angeles Dept. of Water &

Power vo Manhart, 435 U.S. 702, 716-17 (1978)."

from tort judgments are merely a secondary con-

are still an important and leyitimate additional con-

plover when lead safety policies may very well

meet of the child in its most critical stage in

25a

since only they are affected by it.” /d. However, “the em-

ployer’s business necessity defense applies automatically,

just as the employee’s prima facie case of disparate im-

pact applies automatically. That is because to reach the

disparate impact stage of analysis in a fetal protection

case, the employer has already proved—to overcome the

presumption of facial discrimination--that its policy is

justified on a scientific basis and addresses a harm that

does not affect men.” /d. at 1553. As in Olin, “the em-

ployer’s business necessity defense may be rebuttted by

proof that there are acceptable alternative policies that

would better accomplish the purposes of promoting fetal

health, or that would accomplish the purpose with less

adverse impact on one sex.” /d,

Although Olin and Hayes present somewhat different

analyses, both cases, in essence, determine that a business

necessity defense in a fetal protection policy case requires

(1) a demonstration of tne existence of a substantial

health risk to the unborn child, and (2) establishment

that transmission of the hazard to the unborn child oecurs

only through women. Both cases also allow the employee

to present evidence of less discriminatory alternatives

equally capable of preventing the health hazard to the

unborn.

On October 3. 1988, the Equal Employment Opportunity

Commission, the agency responsible for the administra-

tion of Title VII, issued a Policy Statement on Reprodue-

tive and Fetal Hazards Under Tit'e VII that. in sub-

stance, endorsed the approaches that the Fourth and

Eleventh Circuits have taken to fetal protection cases.

Equal Employment Opportunity Commission. Policy State-

ment on Repretuctive and Feta’ Hazards Under Tithe VII

(October 3, 18! ‘found in Fair Empl. Prac. Manual

(BNA) 401.6013). As the Supreme Court has recognized.

while sueh EEOC pronouncements “do not have the force

of law, ... still they * “constitute a body of experienced

and informed judgment to which courts and litigants may

26a

resort for guidance.” ’” Local No, 93, International Asso-

ciation of Fire Fighters v. City of Cleveland, 478 US.

501, 518 (1988) (quoting General Electric Co. v. Gilbert,

429 U.S. 125, 142 (1976) which quoted, in turn, Skidmore

v. Swift & Co., 223 U.S. 134, 140 (1944)). A fair read-

ing of the EEOC’s Policy Statement reflects that the

EEOC thoroughly considered the various interests under

Title VII and followed earlier judicial decisions only after

concluding that these decisions properly implemented Title

VII policies. The EEOC noted that fetal protection “cases

do not fit neatly into the traditional Title VII analytical

framework and, therefore, must be regarded as a class

unto themselves.” Policy Statement ‘(found in Fair Empl.

Prac. Manual (BNA) 401:6013, 6015 n.11) emphasis

added). The EEOC then candidly recognized that fetal

protection policies that “exclude only women constitute

per se violations of the Act.” Jd. at 401:6014 (footnote

omitted). However, the EEOC went on to observe that

“lallthough the BFOQ defense is normally the only

one available in cases of overt discrimination, the

Commission follows the lead of every court of ap-

peals to have addressed the question |in determining |

that the business necessity defense applies to these

cases. While business necessity has traditionally been

limited to disparate impact casts, there is an argu-

ment that in this narrow class of cases the de fe se

should be flexibly applied.”

Id. at 401:6014-15 ‘emphasis added, footnote omitted).

The EEOC concluded that:

“The issues [in a fetal protection policy case to which

the business necessity defense is applicable! are (1)

whether there exists a substantial risk of harm to

employees’ offspring through the exposure of employ-

ees to a reproductive hazard in the workplace; (2)

whether the harm to emn'oyees’ offspring takes place

through the exposure of employees of one sex but

not employees of the opposite sex; and (3) whether

27a

the employer’s policy effectively eliminates the risk

of fetal or reproductive harm. Even if these elements

are proved, the policy will not withstand scrutiny [if]

it is shown that there exists a reasonable alternative

policy that will protect employees’ offspring from

fetal or reproductive harm and that has a less dis-

criminatory impact on employees of the restricted

sex. Thus, an employer’s reproductive or fetal pro-

tection policy must be neutrally designed to protect

all employees’ offspring from hazards existing in the

workplace. Where substantial evidence exists that the

‘isk of harm to employees’ offspring takes place only

in the workplace, an employer may exclude from the

workplace employees of that sex, but only to the ex-

tent necessary to protect employees’ offspring from

reproductive or fetal hazards.”

/d. at 401:6015-16 (footnotes omitted).

We agree with the Fourth Circuit, the Eleventh Cir-

cuit and the EEOC in their conclusion that a business

necessity defense may be utilized in a fetal protection

policy case. It is interesc:ing to note that neither the text

of Title VII nor Supreme Court pronouncements mandate

a holding that all forms of facial discrimination are

justifiable only with a bona fide occupational qualification

defense. See Olin, 697 F.2d at 1186 n.21 (“While the

loose equation—overt discrimination only B.F.0.Q. defense

—is... properly descriptive of a paradigmatic litigation

pattern, it is not an accurate statement of any inherent

constraints in Title VII doctrine’). See also Scherr v.

Woodland School Community Consolidated District, No.

50, 867 F.2d 974, 977-81 (7th Cir. 1988) (Permitting

business necessity defense to be utilized under Pregnancy

Discrimination Act).

We are convinced that the components of the business

necessity defense the courts of appeals and the EEOC

have utilized in fetal protection cases balance the interests

28a

of the employer, the employee and the unborn child in a

manner consistent with Title VII. The requirement of a

substantial health risk to the unborn child effectively dis-

tinguishes between the legitimate risk of harm to health

and safety which Title VII permits employers to consider

and the “|m|yths of purely habitual assumptions’ ~ that

employers sometimes attempt to impermissibly utilize to

support the exclusion of women from employment opm

tunities. Likewise, the requirement that the risk |

to offspring be substantially confined to female emp.

ees means that a fetal protection policy applying only to

women recognizes the basic physical fact of human repro-

duction, that only women are capable of bearing children.

Finally, the employee's option of presenting less discrim-

inatory alternatives to a fetal protecticn policy assures

that these policies are only as restrictive as necessary to

prevent the serious visk of harm to the unborn child. Ac-

cordingly, we agree with the Fourth Circuit, Eleventh

Circuit and EEOC that the business necessity defense can

be appropriately applied to fetal protection policy cases

under Title VII. We now proceed to determine whether

this defense can be utilized to sustain Johnson Controls’

fetal protection policy.

IV.

In Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115,

2125-26 (1989), the Supreme Court recently described the

general policies underlying the business necessity defense

that we utilize in considering Johnson Control's fetal pro-

tection policy:

“Though we have phrased the query differently in

different cases, it is generally well-established that

at the justification stage of . .. a disparate impact

ease, the dispositive issue is whether a challenged

practice serves, in a significant way, the legitimate

26 Los Anegeles Department of Water avd Power v. Manhart, 435

U.S. 702, 707 (1978).

29a

employment goals of the employer. The touchstone

of this inquiry is a reasoned review of the employer's

justification for his use of the challenged practice.

A mere insubstantial justification in this regard will

not suffice, because such a low standard of review

would permit discrimination to be practiced through

the use of spurious, seemingly neutral employment

practices. At the same time, though, there is no re-

quirement that the challenged practice be ‘essential’

or ‘indispensable’ to the employer’s business for it to

pass muster: this degree of scrutiny would be al-

most impossible for most employers to meet, and

would result in a host of evils... .”

(Citations omitted).

In Wards Cove the Court also clarified the proof bur-

dens to be applied in addressing an employer’s business

necessity defense:

“[T]he employer carries the burden of producing

evidence of a business justification for his employ-

ment practice. The burden of persuasion, however,

remains with the disparate-impact plaintiff. To the

extent that the Ninth Circuit held otherwise in its

en bane decision in this case, or in the panel's deci-

sion on remand—suggesting that the persuasion bur-

den should shift to the [defendants] once the [plain-

tiffs] establish a prima facie case of disparate im-

pact—its decisions were erroneous. ‘/T]he ultimate

burden of proving that discrimination against a pro-

tected group has been caused by a specific employ-

ment practice remains with the plaintiff at all times.’

Watson [v. Fort Worth Bank & Trust Co., 108 8S. Ct.

2777, 2790 (1988)] (O’Connor, J.) (emphasis

added). This rule conforms with the usual method

for allocating persuasion and production burdens in

the federal courts, and more specifically, it conforms

to the rule in disparate treatment cases that the

30a

plaintiff bears the burden of disproving an employ-

er’s assertion that the adverse employment action or

practice was based solely on a legitimate neutral

consideration. We acknowledge that some of our

earlier decisions can be read as suggesting otherwise.

But to the extent that those cases speak of an em-

ployers’ ‘sie) ‘burden of proof’ with respect to a

legitimate business justification defense, they should

have been understood to mean an emplover’s produc-

tion—but not persuasion—burden. The persuasion

burden here must remain with the plaintiff, for it

is he who must prove that it was ‘because of such

individuai’s race, color,’ ete., that he was denied a

desired employment opportunity. See 42 U.S.C.

$ 2000e-2'a).”

Wards Core, 109 S. Ct. at 2126 ‘citations omitted, em-

phasis added).

The allocation of the burden of proof under substantive

Title VII law outlined in Wards Cove plays a significant

role in summary judgment proceedings of this nature.

We have previously recognized that: ‘Summary judg-

ment is properly entered in favor of a party when the

opposing party is unable to make a showing sufficient to

prove an essential element of a case on which the oppos-

ing party bears the burden of proof.” Common v. Wil-

liams, 859 F.2d 467, 469 (7th Cir. 1988}. The Supreme

Court explained the reasons for this rule in Celotex Corp.

v. Catrett, AT7 U.S. 317, 322-23 (1986):

“In our view, the plain language of Rule 56‘c) man-

dates the entry of summary judgment, after ade-

quate time for discovery and upon motion, against a

party who fails to make a showing sufficient to es-

tablish the existence of ‘an element essential to that

party’s case, and on which the party will bear the

burden the proof at trial. In such a situation, there

can be ‘no genuine issue as to any material fact,’

3la

since a complete failure of proof concerning an es-

sential element of the nonmoving party’s case neces-

sarily renders all other facts immaterial. The mov-

ing party is ‘entitled to judgment as a matter of

law’ because the nonmoving party has failed to make

a sufficient showing on an essential element of her

case with respect to which she has the hurden of

proof.”

“Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party,

there is not ‘genuine issue for trial.’ Matsushita Elec-

tric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,

987 (1986) ‘quoting First National Bank of Arizona v.

Cities Service Co., 391 U.S. 253, 288-89 (1968) ). Thus,

the question we must address is whether the UAW, which

bears the burden of persuasion, has presented evidence

sufficient to permit the district court to conclude that

Johnson Controls’ business necessity defense cannot be

factually supported.

Our inquiry must be based on the underlying premise

that the creation of a record adequate to meet legal chal-

lenges is the responsibility of the parties litigating the

case. We may neither add nor subtract from the record:

we must accept it as it is. Thus, “[w]hen confronted with

a motion for summary judgment, a party who bears the

burden of proof on a particular issue, may not rest on

its pleadings, but must affirmatively demonstrate by spe-

cific factua! allegations, that there is a genuine issue of

material fact which requires trial.” Beard v. Whitley

County, REMC, 840 F.2d 405, 410 (7th Cir. 1988) (em-

phasis in original). As we have also noted: “A district

court need not scour the record to make the ease of a

party who does nothing... . [C]lourts will not discover

that the movants slighted contrary information if oppos-

ing lawyers sit on their haunches: judges may let the

adversary system take its course.” Herman v. City of

Chicago, 870 F.2d 400, 404 (7th Cir. 1989). We now

32a

turn to whether the UAW has established a genuine issue

of material fact concerning any of the elements of the

business necessity defense upon which it bears the burden

of persuasion.

A. Substantial Risk of Harm to the Unborn Child

Both the UAW and Johnson Controls agree on appeal

that the significant evidence of risks to the health of the

fetus contained in the record establishes a substantial

health risk to the unborn child. The UAW in its brief

admits that “it is clear that... substantial risk of harm

to the fetus ... has been established.”” UAW Brief at 33.

Similarly, Johnson states that ‘|t|he evidence in the rec-

ord on {substantial risk of harm to the fetus] is over-

whelming.” Johnson Controls Brief at 22. In light of the

parties’ agreement on the question of substantial risk of

harm to the unborn child, this issue is not before this

court on appeal.

Although the parties do not contest this question on

appeal, the evidence in the record that we recounted in

Section II, supra, conclusively supports the accepted med-

ical and scientific tinding that lead creates a substantial

risk of harm to unborn children. In order to present the

risk of harm necessary to sustain a fetal protection policy

“it is not necessary to prove the existence of a general

consensus on the {question of risk of harm to the unborn

child] within the qualified scientific community. It suf-

fices to show that within that community there is so

considerable a body of opinion that significant risk exists

... that an informed employer could not responsibly fail

to act on the assumption that this opinion might be the

accurate one.” Olin, 697 F.2d at 1191. The overwhelm-

ing medical and scientific research data demonstrating a

substantial risk to the unborn child from lead exposure,

found in the record and set forth in Section II, supra,

approaches a “general consensus within the qualified

scientific community,” and certainly “suffices to show that

33a

within that community there is [a] considerable body of

opinion that significant risk exists.” 2 Accordingly, we

are convinced that there is no genuine issue of material

fact with respect to this component of sonneen Controls’

business necessity defense.**

B. Exposure Through a Single Sex

The UAW’s efforts in this case have primarily been

devoted toward negating the second element of Johnson's

business necessity defense, that the risk of transmission

of potentially harmful lead exposure to unborn children

is substantially confined to fertile female employees. On

this issue, as with the question of substantial risk of

harm to the unborn child, “it is not necessary to prove

the existence of a general consensus on the [issue] within

the qualified scientific cemmunity.” Olin, 697 F.2d at

1191.

In this case Johnson Controls’ experts, without excep-

tion, testified that a male worker's exposure to lead at

levels within the 50 .¢ d! maximum set forth in OSHA’s

current (1978) les id exposure guidelines did not pose a

substantial risk of cenetically transmitted harm from the

male to the unborn child. Moreover, Johnson’s experts

took the position that because this data dealt exclusively

with animals, th e results of these studies were not scien-

tifically established as being applicable to humans. In con-

trast, the UAW witnesses posited that animal studies had

“7 Olin, GOT F.2d at 1191.

** There might be a suggest: 1 that the unborn child would be

harmed if his or her mother w ce deprived of insurance benefits

or Wages that could be utilized for prenatal care as a result of

the application of Johnson Controls’ fetal protection policy. This

issue bears no relevance to Johnson Controls’ employment practices

for any female emplevees deprived of jobs in high lead environ-

ments under Johnson's fetal protection policy, instituted in 1982.

are transferred to other positions in Johnson Controls’ employ

. . .

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36a

exist.’) See generally Parham v. Hughes, 441 USS.

347, 354 (1979) (opinion of Stewart, J.) (‘In cases

where men and women are not similarly situated,

however, and a statutory classification is realistically

based upon the differences in their situations, this

Court has upheld its validity.’); Schlesinger v. Bal-

lard, 419 U.S. 498, 508 (1975) (‘The different treat-

ment of men and women... reflects, not archaic

and overbroad generalizations, but, instead, the de-

monstrable fact that male and female line officers in

the Navy are not similarly situated with respect to

opportunities for professional service.’ (emphasis in

original) ). This same principle has been recognized

in the Title VII area. See, e.g., Backus v. Baptist

Medical Center, 510 F. Supp. 1191, 1195 (E.D. Ark.

1981), vacated because of mootiess, 671 F.2d 1100

(Sth Cir. 1982) (recognizing the need to have female

registered nurs’: care for obstetrical patients); see

also] A. Lars & L. Larson, Employment Discrim-

ination—Sex . 14.30 (1987) (‘|Gliving respect to

deep-seated feelings of personal privacy involving

one’s own genital area is quite a different matter

from catering to the desire of some male airline

passengers to have... an attractive stewardess.’)”’

Because veientific data available as of this date reflects

that the risk of transmission of harm to unborn children

is confined to fertile female employees, the sex-based

distinction present in Johnson Controls’ fetal protection

policy is based upon real physical differences between

men and women relating to childbearing capacity and is

consistent with Title VIL.

C. Adequate But Less Discriminatory Alternatives

We are cognizant of the fact that Johnson’s fetal pro-

tection policy might very wel! not have been sustainable

had the UAW presented facts and reasoning sufticient for

the trier of fact to conclude that “there are ‘acceptable

37a

alternative policies or practices which would better ac-

complish the business purpose... [of protecting against.

the risk of harm], or accomplish equally well with a

lesser differential ... impact [between women and men

workers].’”’ Olin, 697 F.2d at 1191 (quoting Robinson

v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir.), cert.

dismissed, 404 U.S. 1006 (1971) ).

As an initial matter, we must determine whether the

UAW has preserved this issue for appeal. The UAW’s

brief explicitly admits that “the plaintiffs did not respond

to the defendant’s allegations that it had considered a

number of alternatives [to its fetal protection policy],”’

UAW Brief at 37 n.14, and fails to present any of its

own alternatives. Federal Rule of Appellate Procedure

28(a) (4) provides, in relevant part, that: “The brief of

_ the appellant shall contain under appropriate headings

and in the order here indicated: ... (4) an argument.

. . . The argument shall contain the contentions of the

appellant with respect to the issues presented, and the

reasons therefor, with citations to the authorities, statutes

and parts of the record relied on.” In Zelazny v. Lyng,

853 F.2d 540, 542 n.1 (7th Cir. 1988), we observed that:

“We have said that an appellant is required by

Rule 28(a) (4) of the Federal Rules cf Appellate

Procedure to present in his brief to the appellate

court the issues that he desires to litigate and to

support his arguments on those issues with appro-

priate judicial authority. See Beard v. Whitley

County REMC, 840 F.2d 405, 408 (7th Cir. 1988).

‘“Tt is not the obligation of this court to research

and construct the legal arguments open to parties

especially when they are represented by counsel.” ’

Id. at 408-09 (quoting Sanchez v. Miller, 792 F.2d

694, 703 (7th Cir. 1986), cert. denied, 479 U.S. 1056,

107 S. Ct. 933, 93 L.Ed.2d 984 1987)). Mr.

Zelazny’s conclusory remarks about his lack of dili-

gence without any further argument on the issue and

38a

without any attempt to offer a justification for his

delay do not comply with the strictures of Rule 28

(al (4). Therefore, even if Mr. Zelazny disputes the

district court’s determination of inexcusable delay,

he has waived any argument on that issue.”

The UAW’s failure to specifically articulate a less dis-

criminatory alternative argument in the manner required

in Federal Rule of Appellate Procedure 28(a) (4) means

that it has failed to adequately present this issue to this

court.

Even were we to conclude that the UAW had preserved

this issue for appeal, we would be constrained to hold

that the UAW failed to present facts sufficient for a trier

of fact to conclude that less discriminatory alternatives

would equally effectively achieve an employer’s legitimate

purpose of protecting unborn children from: the substan-

tial risk of harm lead exposure creates, In Wards Cove

Packing Co. v. Atonio, 109 S. Ct. 2115, 2126-27 (1989),

the Supreme Court recently explained the burden a Title

VII plaintiff must carry in order to establish that an

employer’s policy is invalid on the basis of the avail-

ability of less discriminatory alternatives:

“{I)f... [plaintiffs] eannot persuade the trier of

fact on the question of [the employer’s| business ne-

cessity defense, [plaintiffs] may still be able to pre-

vail. To do so, [plaintiffs] will have to persuade the

fact finder that ‘other tests or selection devices, with-

out a similarly undesirable racial] effect, would also

serve the employer’s legitimate [hiring] interest[s],’

by so demonstrating, | plaintiffs] would prove that

‘[the employers were] using [their] test merely as

a “pretext” for discrimination.’ Albemarle Paper

Co. {v. Moody], 422 U.S. 405, 425 (1975)1]: see also

Watson, 487 U.S. at —— (O’Connor, J.) ; Zd., at

(Blackmun, J.). If [plaintiffs], having established a

prima facie case, come forward with alternatives to

394

the employers’ ] hiring practices that reduce the

racially-disparate impact of practices currently being

used, and [the employers] refuse to adopt these al-

ternatives, such a refusal would belie a claim by

[plaintiffs] that their incumbent practices are being

employed for nondiscriminatory reasons.

Of course, any alternative practices which [plain-

tiffs] offer up in this respect must be equally effective

as [the employers’] - chosen hiring procedures in

achieving [the employers’] legitimate employment

goals. Moreover, ‘[f]actors such as the cost or other

burdens of proposed alternative selection devices are

relevant in determining whether they would be equally

as effective as the challenged practices in serving the

employer’s legitimate business goals.’ Watson [v.

Fort Worth Bank & Trust, 108 S. Ct. 2777, 2790

(1988) ] (O’Connor, J.). ‘Courts are generally less

competent than employers to restructure business

practices,’ Furnco Construction Corp. v. Waters, 438

U.S. 567, 578 (1978): consequently, the judiciary

should proceed with care before mandating that an

employer must adopt a plaintiff's alternative selec-

tion or hiring process in response to a Title VII

suit.”

The above passage from Wards Cove makes clear (1)

that the UAW bears the burden of presenting specific

economically and technologically feasible alternatives to

Johnson Controls’ fetal protection policy; (2) that if the

UAW presents such alternatives, the UAW also bears the

burden of demonstrating that its proposed alternative pol-

icy is “equally effective [as Johnson Controls’ feta] pro-

tection policy] in achieving [Johnson’s] legitimate em-

ployment goals,” Wards Cove, 109 S. Ct. at 2127 (em-

phasis added); and (3) that this inquiry is to be under-

taken with the recognition that “ ‘[fJactors such as the

cost or other burdens of proposed alternative selection de-

vises are relevant in determining whether they would be

40a

equally as effective as the challenged practices in ——

the employer’s legitimate business goals,’’’ Jd. at 2127

(quoting Watson v. Fort Worth Bank & Trust, 108 S. Ct.

2777, 2790 (19883 (O’Connor, J.) ), and that “ ‘|cJourts

are generally less competent than employers to restruc-

ture business practices’... .”’ /d. (quoting Furnco Con-

struction Corp., 488 U.S. at 578). In our case the in-

quiry is terminated at the first stage. The UAW, in its

briefs and argument, has failed to present even one spe-

cific alternative to Johnson’s fetal protection policy, much

less a demonstration of how any particular economically

and technologically feasible alternative would effectively

achieve Johnson’s purpose of preventing the risk of fetal

harm associated with the exposure to lead of fertile fe-

male employees.

The record also demonstrates that viable alternatives

to the fetal protection program were not presented to the

court that would equally effectively further Johnson’s le-

gitimate interests. As detailed in Section I, supra, John-

son Controls itself considered various possible less dis-

criminatory alternatives prior to its adoption of the cur-

rent fetal protection policy in 1982. In considering these

alternatives, Johnson realized that lead could not be elimi-

nated as a battery component. Furthermore, technically

and economically feasible alternatives in the manufac-

turing process are incapable of reducing lead exposure

to acceptable levels for pregnant women.*' Limitation of

31Cf. Sable Communications v. FCC, 109 S. Ct. 2829, 2837-39

(1989). This was a First Amendment challenge to federal legis-

lation outlawing dial-a-porn telephone services. In passing upon the

constitutionality of this proscription, the Supreme Court observed

that: “For all we know from the record, the FCC's technological

approach to restricting dial-a-porn messages to adults who —

them would be extremely effective, and only, a few of the most

enterprising and disobedient young people will poy to secure

access to such messages.” Sable, 109 S. Ct. at 2838. Thus, the

Court concluded that “the congressional record contains no legisla-

tive findings that would justify us in concluding that there is no

4la

the exclusion from high lead positions to women actually

pregnant or planning pregnancy was inadequate because

lead exposure frequently takes place during the time

period before the woman or her doctor determine her

pregnancy. In addition, reduction of blood lead levels

following removal of a significant period of time that can

extend well into the pregnancy term. Although the Su-

preme Court has noted that “there is no requirement that

the challenged practice be ‘essential’ or ‘indispensable’ to

the employer’s business for it to pass muster” under

the business necessity defense, Johnson’s policy could well

have met this exacting standard.

Finally, in resolving this issue we must act with an

awareness of the Supreme Court’s warnings that “ ‘{c]ourts

are generally less competent than employers to restruc-

ture business practices,’ and that “the judiciary should

proceed with care before mandating that an employer

must adopt a plaintiff’s | proposed alternative employment

policy] in response to a Title VII suit.” In light of

these policies, the UAW has not met its evidentiary bur-

den at the summary judgment phase of presenting facts

from which a trier of fact could determine that an alter-

native policy would be equally as effective as Johnson

Controls’ fetal protection policy in preventing risk of

harm to unborn children from lead exposure.

constitutionally less restrictive means, short of a total ban, to

achieve the government’s interest in protecting minors.” Jd. In

contrast, our case involves uncontroverted scientific and medical

data supporting determinations that available technology would not

adequately prevent hazards accompanying lead exposure. Sable is

considered in more detail in Section V, infra.

32 Wards Cove, 109 S. Ct. at 2126.

33 Wards Cove, 109 S. Ct. at 2127 (quoting Furnco Construction

Corp. v. Waters, 438 U.S. at 578).

34 Wards Cove, 109 S. Ct. at 2127.

42a

V.

Having just held that the business necessity defense

shields an employer from liability for sex discrimination

under Title VII in a fetal protection policy involving the

type of facts present herein, we are also convinced that

Johnson Controls’ fetal protection policy could be upheld

under the bona fide occupational qualification defense.

In addressing the bona fide occupational qualification

question, we have observed that: “It is universally recog-

nized that this exception to Title VII was ‘meant to be

an extremely narrow exception to the general prohibition

of discrimination. .. .’” Torres v. Wisconsin Dept. of

Health & Social Services, 859 F.2d 1523, 1527 (7th Cir.

1988) (quoting Dothard v. Rawlinson, 433 U.S. 321, 334

(1977) ). Nonetheless, this formulation should not be

treated as inviting a black letter conclusion that the em-

ployer automatically loses in a case in which it is required

to demonstrate a bona fide occupational qualification. The

bona fide occupational qualification defense, like other

Title VII defenses, must be construed in a manner which

gives meaningful and thoughtful consideration to the in-

terests of all those affected by a company’s policy, in this

case the employer, the employee and the unborn child.

Indeed, the fact that Johnson’s fetal protection policy ap-

plies exclusively to the high lead exposure areas of its

battery division demonstrates why the policy is drafted

with sufficiently definite terminology as to constitute a

“narrow exception to the general prohibition of discrimi-

EMA .6ke

35 Torres, 859 F.2d at 1527 (quoting Dothard, 433 U.S. at 334).

The battery division is only a small segment of Johnson Controls’

entire business operation. Johnson Controls employs 25,700 employ-

ees, only 425 of whom work in its battery division. See Dan’s

Marketing Services, Inc., 1 America’s Corporate Families 694

(1988).

48a

In the context of the Pregnancy Discrimination Act.”

application of the bona fide occupational qualification de-

fense requires a court to consider the special concerns

which pregnancy poses. A proposed BFOQ relating to ca-

pacity for pregnancy (or actual pregnancy) will exclude

fewer employees than a BFOQ excluding all women. The

court must also consider the physical changes caused by

pregnancy, i.e., the presence of the unborn child, in deter-

mining whether the employee’s continuance in a particu-

lar employment assignment will endanger the health of

her unborn child. These concerns are in many ways quite

similar to those a court should address in a business ne-

cessity defense analysis. Indeed, in considering a BFOQ

defense in a case involving pregnancy, the Eighth Cir-

cuit recently stated:

“(The district court’s finding of business necessity

itself is persuasive as to the existence of a bfoq. This

court has noted that the analysis of a bfoq ‘is similar

to and overlaps with the judicially created “business

necessity” tesc.’ Gunther [v. Iowa State Men’s Re-

formatory, 612 F.2d 1079, 1086 n.2 (8th Cir.), cert.

denied, 446 U.S. 966 (1980)]. The various stand-

ards for establishing business necessity are quite sim-

ilar to those for determining a bfoq.”’

Chambers v. Omaha Girls Clubs, Inc., 834 F.2d 697, 704

(8th Cir. 1987) (decision discussed favorably in Torres

v. Wisconsin Dept. of Health & Social Services, 859 F.2d

1523, 1531 (7th Cir. 1988) (en bane) ).

Sitting en banc, this court recently considered the bona

fide occupational qualification defense in Torres v. Wis-

consin Dept. of Health & Social Services, 859 F.2d 1523

(7th Cir. 1988) (en bane). At issue in Torres was the

question of whether the Wisconsin Department of Health

and Social Services could pursue its legitimate goal in

36 42 U.S.C. § 2000e(k).

44a

furthering prisoner rehabilitation through a policy exclud-

ing men from nineteen of twenty-seven guard pesitions

in the living and hygiene areas of an exclusively women’s

prison institution. We noted with approval the tradi-

tional formulations of the business necessity defense.

859 F.2d at 1527. These formulations are that “ ‘dis-

crimination based on sex is valid only wheu the essence

of the business operation would be undermined by not

hiring members of one sex exclusively,” Dothard ».

Rawlinson, 433 U.S. 321, 333 (1977) (quoting Diaz v.

Pan American World Airways, 442 F.2d 385, 388 (5th

Cir.), cert. denied, 404 U.S. 950 (1971) (emphasis in

original) ), and that “an employer [ean] re’: on the

BFOQ exception only by proving ‘that he had reaso. to

believe, that is, a factual basis for believing, that all or

substantially all women would be unable to perform safely

and efficiently the duties of the job involved.’ ” Jd. (quot-

ing Weeks v. Southern Bell Telephone & Telegraph Co.,

408 F.2d 228, 235 (5th Cir. 1969) ).

We next discussed the need for courts conducting BFOQ

analyses to avoid either using traditional stereotypes or

falling into the equally unsatisfactory alternative of ig-

noring the real differences between men and women. We

stated:

“It is also well established that a BFOQ may not be

based on ‘stereotyped characterizations of the sexes.’

Dothard, 433 U.S. at 333... . Nevertheless, while

recognizing that sex-based differences may justify a

limited number of distinctions between men and

women, we must discipline our inquiry to ensure that

our tolerance for such distinetions is not widened ar-

tificially by—as the district court aptly put it—our

‘own culturally induced proclivities.” Torres, 639 F.

Supp. at 278. Nor, of course, can we tolerate the

same preconceptions or predilections on the part of

employers. Rather, we must ask whether, given the

reasonable objectives of the employer, the very wom-

45a

anhood or very manhood of the employee undermines

his or her capacity to perform a job satisfactorily.

Dothard, 433 U.S. at 336.”

Torres, 859 F.2d at 1527-28.

Torres’ conzlusion that Congress intended the bona fide

occupational qualification defense as a recognition of the

reai differences between men and women accords with

Congress’ appreach in both Title VII and other contexts

concerning matters involving distinctions based upon re-

alistic physical differences between men and women. For

example, in Kostker v. Goldberg, 453 U.S. 57 (1981), the

Supreme Court affirmed the exclusion of women from the

military draft based upon a congressional determination

that women were not suited for combat. The Court noted

that

“Congress specifically recognized and endorsed the

exclusion of women from combat in exempting

women from registration. In the words of the Sen-

ate Report:

‘The principle that women should not intention-

ally and routinely engage in combat is funda-

mental, and enjoys wide support among our

people. It is universally supported by military

eaders who have testified before the Committee

-... Current law and policy exclude women

from being assigned to combat in our military

forces, and the Committee reaffirms | this

policy.’ ”’

453 U.S. at 76-77 (quoting S. Rep. No. 96-826 at 157,

U.S. Code Cong. & Adm. News 1980, 2647). Likewise, in

California Federal Savings & Loan Association v.

Guerra, 107 S. Ct. 683, 694 (1987), the Supreme Court

recognized that in enacting Title VII Congress did not

intend to preclude state pregnancy leave legislation which

recognized “actual physical disability on account of preg-

46a

nancy,” (emphasis in original), and that did “not. re-

flect archaic or stereotypical notions about pregnancy and

the abilities of pregnant workers.” Finally, Title IX re-

quirements with respect to equality between men and

women in athletic programs have been administratively

interpreted to allow separate male and female teams and

to permit exclusion of women from contact sports. See

7 C.F.R. § 15a.41(b), 10 C.F.R. § 1040.44(b), 34 C.F.R.

§ 106.41(b), 45 C.F.R. §$ 86.41(b). The risk of injury

to women from contact sports is based upon the recog-

nized innate physical differences between men and

women, matters analogous to Johnson’s fetal protection

policy’s concern with the differences between men and

women relating to childbearing capacity. Thus, as Torres

holds, the Title VII bona fide occupational qualification

defense is another legitimate congressional recognition

that real physical differences between men and women can

and do justify differences in their treatment.

After establishing the general policies underlying the

BFOQ defense, Torres set forth a method for ascertain-

ing the validity of a BFOQ.

“The validity of a BFOQ ean only be as ertained

when it is assessed in relationship to the business

of the employer. Our first step, therefore, y vat be

to come to an understanding of the employer's busi-

ness—its mission and the methodologies necessary to

fulfill that mission. Jn accomplishing this task, we

cannot deal in generalities. Rather, we must focus

on the ‘particular business’ of the employer in which

the protected employee worked. Oftentimes. this task

requires that a court recognize factors that make a

particular operation of an employer unique or at

least substantially different from other operations in

the same general business or profession. See Pime v.

Loyola Univ., 803 F.2d 351, 353-54 (7th Cir. 1986)

(upholding the maintenance of a Jesuit ‘presence’ as

‘important to the successful operation of the Univer-

47a

sity,’ when there was evidence that it was ‘signifi-

cant to the educational tradition and character of the

institution that students be assured a degree of con-

tact with teachers who have received the training

and accepted the obligations which are essential to

membership in the Society of Jesus’).”

Id. at 1528-29 (citations omitted, emphasis added). In

the context of the administration of a state prison, we

considered how a specific definition of a business could

permit a bona fide occupational qualification in a case

where a general definition of the business might not per-

mit such a qualification:

“Here... the broadest description of the ‘business’

of the defendants is to say that they are in the busi-

ness of governance at the state level. This general

description, standing alone, gives them no special

license with respect to Title VII. ... A more precise

definition of the ‘business’ of the defendants is to

recognize that they are in the business of administer-

ing a penal institution. Few tasks are more chal-

lenging.

a x ” *

This general description of the task of prison admin-

istrators is still too general to permit us to assess

accurately the claims of the parties... .. [W]e must

refine our focus. The defendants are charged

with the administration of a distinct type of penal

institution—a women’s maximum security facility.

| T]he same historical and empirical evidence

that might guide the administrator of a similar in-

stitution for males simply is not available with re-

spect to this environment. Therefore, the adminis-

trators .. . were obliged, to a greater degree than

their counterparts in male institutions, to innovate

in achieving one of the tasks mandated by the Wis-

consin legislature—rehabilitation. The defendants’

48a

‘business’ explicitly included-——by legislative mandate

—the task of rehabilitation.”

Torres, 859 F.2d at 1529-30 ‘emphasis added, citations

omitted).

Torres bears particular relevance to our discussion of

the description of Johnson Controls’ business. At a broad

level, Johnson's business, insofar as relevant to this case,

is the manufacture of batteries."? Johnson’s business is

“unique” because it requires the use of lead, an extremely

toxic substance that has been scientifically established to

pose very serious dangers to young children and, in par-

ticular, to the offspring of female employees. In order to

respond to the problems accompanying its unique battery

manufacturing operation, Johnson Controls has properly

made it part of its business to attempt to manufacture

batteries in as safe a manner as possible. This safety in-

terest is every bit as critical to the mission of Johnson’s

battery manufacturing business as rehabilitation of pris-

oners is to the mission of the prison facility at issue in

Torres. Furthermore, like the prison in Torres, Johnson

has found it necessary to “innovate” to achieve its essen-

tial goal of manufacturing batteries safely through the

adoption of a fetal protection policy that would address

the health safety problems related to its female employ-

ees significantly more effectively than the alternative

policies it had considered. See Sections II and IV-C,

supra.

Having established that industrial safety (preventing

hazards to health) is legitimately part of the “essence”

of the “business” of a battery manufacturer. as it is of

any manufacturing enterprise, the next inquiry under

Torres is whether Johnson Controls’ fetal protection pol-

icy is “directly related” to industrial safety. See Torres,

859 F.2d at 1530. Certainly a policy is directly related

*7 As noted in footnote 34, svpra, Johnson Controls’ battery divi-

sion is only a small segment of its entire business operation.

49a

to industrial safety when it protects unborn children from

a substantial risK of devastating and permanent impair-

ment or loss of intellectual ability or injury to vital

organs resulting from exposure to a toxic industrial

chemical.

As in Torres, “|t|he more difficult question is whether

the proposed BFOQ [is] ‘reasonably necessary’ to further-

ing the objective of [industrial safety].” Torres, 859

F.2d at 1530. In “unique” businesses, like the living

areas of the women’s prison in Torres or Johnson Con-

trols’ battery manufacturing operation, where an em-

ployer adopts an employment policy designed to address

a difficult societal problem, Torres requires that courts

reviewing such a determination under Title VII give some

deference to the employer’s decisions. As we noted in

Torres:

“We believe . .. that the defendants were required

to meet an unrealistic, and therefore unfair burden

when they were required to produce ‘objective evi-

dence, either from empirical studies or otherwise,

displaying the validity of their theory.’ Torres [v.

Wisconsin Dept. of Health and Social Services, 639

F. Supp. 271, 280 (E.D. Wis. 1986)]. Given the

nature of their ‘business’—administering a prison

for female felons-—the defendants, of necessity, had

to innovate. Therefore, their efforts ought to be evalu-

ated on the basis of the totality of the circumstances

as contained in the entire record. In the Title VII

context, the decision of penal administrators need not

be given as much deference as accorded their deci-

sions in constitutional cases. However, their judg-

ments still are entitled to substantial weight when

they are the product of a reasoned decision making

process, based on available information and ex-

perience,”

859 F.2d at 1532 ‘citations omitted). Cf. Wards Cove,

109 8S. Ct. at 2127 ‘“ ‘Courts are generally less competent

50a

than employers to restructure business practices,’ Furnco

Construction Corp. v. Waters, 438 U.S. 567, 578 (1978);

consequently, the judiciary should proceed with care be-

fore mandating that an employer must adopt a plaintiff's

alternate [employment practice] in response to a Title

VII suit.”).

In resolving the question of whether Johnson Controls’

BFOQ is reasonably necessary to industrial safety, we

recognize that Title VII establishes the general proposi-

tions that a determination of whether a proposed BFOQ

is “reasonably necessary” to furthering the objective of

industrial safety requires that Johnson Controls “ ‘had

reasonable cause to believe, that is, a factual basis for

believing that all or substantially all [women capable of

pregnancy| would be unable to perform safely and effi-

ciently the duties of the job invoived,’” Dothard v. Raw-

linson, 433 U.S. 321, 333 (1977) (quoting Weeks v.

Southern Bell Telephone & Telegraph Co., 408 F.2d 228,

235 (5th Cir. 1969)), and that “[i]n the usual ease, the

argument that a particular job is too dangerous for

women may appropriately be met by the rejoinder that

it is the purpose of Title VII to allow the individual

woman to make that choice for herself.” Dothard, 433

U.S. at 335 ‘foetnote omitted, emphasis added). Jt is

important to remember, however, that while Dothard

established these propositions as qeneral rules, the Su-

preme Court determined that Dothard was an unusual

case justifying a departure from this general maxim.

The Court stated: “More is at stake in this case. how-

ever, than an individual woman’s decision to weigh and

accept the risks of emp'oyment in a ‘contact’ position in

a maximum security male prison.” Jd. The Court con-

cluded that a bona fide occupational qualification exclud-

ing women from such positions was justified because a

woman’s sex could create a risk of sexual assaults which

would undermine prison security. Sec Id. at 335-37.

5la

Similarly, “[m]Jore is at stake in this case... than an

individual woman’s decision to weigh and accept the risks

of employment.” Jd. at 335. A female’s decision to work

in a high lead exposure job risks the intellectual and

physical development of the baby she may carry. The

status of women in America has changed both in the

family and in the economic system. Since they have be-

come a force in the workplace as well as in the home be-

cause of their desire to better the family’s station in

life, it would not be improbable that a female employee

might somehow rationally discount this clear risk in her

hope and belief that her infant would not be adversely

affected from lead exposure. The unborn child has no

opportunity to avoid this grave danger, but bears the

definite risk of suffering permanent consequences. This

situation is much like that involved in blood transfusion

cases. There courts have held that individuals may choose

for themselves whether to refuse to personally acquiesce

in a blood transfusion that had been established as medi-

cally necessary, but that parents may not always rely

upon parental rights or religious liberty rights to simi-

larly refuse to consent to such a medically necessary

transfusion for their minor children.** The risks to the

unborn child from lead are also shared by society in the

form of government financed programs to train or main-

tain a handicapped child in non-institutional or institu-

tional environments and to provide the child with the

training necessary to overcome the mental and physical

harm attributable to lead exposure.’ Thus, since “more

*8In these cases a court will commonly appoint a guardian ad

litem with the authority to consent for the child to the required

transfusion and will hold a hearing to determine whether the child

has been medically neglected as a result of the denial of the trans-

fusion. See generally In ve E. G., 161 IlL.App.3d 765, 515 N.E.2d

286, 287 (1987), appeal allowed, 520 N.E.2d 385 (1988).

89 Cf. State v. Acker, 26 Utah 2d 104, 485 P.2d 1038, 1039 (1971) ;

Love v. Bell, 465 P.2d 118, 121 (Colo. 1970) (Costs to seciety from

caring for motorcycle accident victims support mandatory motor-

52a

is at stake” than the individual woman’s decision to risk

her own safety, Dothard supports, rather than bars, a

conclusion that an employer’s fetal protection policy con-

stitutes a bona fide occupational qualification. In such

circumstances, “given the reasonable objectives of the

employer, the very womanhood . . . of the employee under-

mines... her capacity to perform a job satisfactorily.”

Torres, 859 F.2d at 1528 (citing Dothard, 433 U.S. at

336).

Against this substantive background, we hold that

Johnson has carried its burden of demonstrating that its

fetal protection plan is reasonably necessary to further

cycle helmet laws in states that have these laws). As the Supreme

Court of Washington, sitting en banc observed:

“The legislature could also reasonably assume—and legislate

on such assumption—that the public welfare and safety is sub-

stantially affected by the dangers arising from motorcycle rid-

ing. The public has already assumed many burdens and respon-

sibilities in helping ameliorate the effects of accidents. It has

at public expense substantially provided emergency ambulance,

medical and hospital care for persons injured on the public high-

ways and supplied medical, surgical and hospital services for in-

digent persons so injured. The public has undertaken the basic

responsibility of policing the public highways and regulating

traffic thereon both in the interests of safety and efficiency,

and has utilized the state and its political subdivisions to carry

these burdens. The greater the number of serious injuries to

the head and upper spine suffered by motorcycle riders, the

greater the burdens it can reasonably be said are imposed on

the publicly supplied or regulated medical, hospital, ambulance

and police services. There thus exists a reasonably manifest

connection between the use of protective helmets by motor-

cycle riders and the public health, welfare and safety. Accord-

ingly, requiring motorcycle riders to wear protective helmets

of a type approved by the state commission on equipment

when riding upon the public highways is a legitimate and rea-

sonable exercise of the police power, and RCW 46.37-530(3)

is a constitutional declaration thereof.”

State v. Laitinen, 77 Wash. 2d 130, 459 P.2d 789, 791-92 (1969),

cert. denied, 397 U.S. 1055 (1970).

58a

industrial safety, a matter we have determined to be part

of the essence of Johnson Controls’ business. Initially,

there can be no doubt that the exclusion of women who

are actually pregnant from positions involving high levels

of lead exposure sets forth a bona fide occupational

qualification. As established in section II, supra, there

is clear and unrefuted evidence in the record of a sub-

stantial and irreversible risk to the unborn child’s mental

development from lead exposure in the womb. This dan-

ger is “hardly a ‘[m]yth or purely habitually assump-

tion.’ Torres, 859 F.2d at 1531 (quoting Los Angeles

Dept. of Water & Power v. Manhart, 435 U.S. 702, 707

(1978)). The convincing scientific evidence of this risk

and the very serious consequences of this danger com-

bine to make this health risk quite different from the

concerns in Muller v. Oregon, 208 U.S. 412, 421-22

(1908), which we would currently characterize as stereo-

typical rather than real. Compare Dothard, 433 U.S. at

333 (noting “that it is impermissible under Title VII to

refuse to hire an individual woman or man on the basis

of stereotyped characterizations of the sexes”) ; Torres,

859 F.2d at 1527-28 (distinguishing between “stereotyped

characterizations of the sexes” and “real . . . differences

between men and women”),

We are also of the opinion that Johnson Controls’ well

reasoned and scientifically documented decision to apply

this policy to all fertile women employed in high lead ex-

posure positions constitutes a bona fide occupational qual-

ification. The evidence presented concerning the finger-

ing effects of lead in a woman’s body, combined with the

magnitude of medical difficulties in detecting and diagnos-

ing early pregnancy, lead us to agree with Johnson Con-

trols that there exists a reasonable basis in fact to con-

clude that an extension of this policy to all fertile women

is proper and reasonably necessary to further the indus-

trial safety concern of preventing the unborn child’s ex-

posure to lead.

54a

Based upon the current status of research into lead’s

hazardous effects, we also agree that Johnson Controls

has demonstrated to our satisfaction that exclusion of fer-

tile women from positions in any area of its battery plant

in which an employee has reported a blood lead level in

excess of 30 »g dl or where an air lead measurement has

been in excess of 30 is reasonably necessary to the indus-

trial safety-based concern of protecting the unborn child

from lead exposure. At the time Johnson Controls adopted

its policy, the 30 »g/dl lead exposure level coincided with

the Centers for Disease Control’s determination of accept-

able blood lead levels for children. See n.7, supra. How-

ever, it is becoming increasingly clear that the 30 »g/dl

lead exposure level once believed to be safe for unborn

children is no longer medically accepted as risk free. As

mentioned previously, the Centers for Disease Control, in

1985, based upon “current knowledge concerning screen-

ing, diagnosis, treatment, followup, and environmental in-

tervention for children with elevated blood levels,” revised

the level of elevated lead exposure from 30 to 25 ng /dl

and suggested that an unborn child’s blood lead level re-

main below 25 »g/dl. As also noted previously, recent

lead studies suggest that harm may be present at levels

even lower than those earlier believed to be safe.*° Thus,

lead absorption levels such as those mandated by OSHA,

which were thought to have been sufficiently protective of

the unborn child when they were enacted over ten years

ago, are now considered insufficient. Medical knowledge

is, indeed, a rapidly changing field as was noted in an

early opinion:

“Surgical techniques have changed rapidly over the

years .... Advances such as the transplating of

a heart and kidneys in the 1950’s and 1960’s or the

reattachmnet of a severed hand or arm were un-

#9 See J. N. Davis and D. Svendsgaard, Lead and Child Develop-

ment, 329 Nature 297 (1987) (collecting results of recent studies

in this area).

55a

thought of many years ago. Future advances, par-

ticularly, in teaching hospitals, will be too extraor-

dinary to even predict.”

Rod v. Farrell, 96 Wis.2d 349, 359, 291 N.W.2d 568, 573

(1980) (Coffey, J., concurring). Recent advances in

scientific knowledge demonstrate that Johnson Controls’

cautious approach has been consistent with the emerging

knowledge that the unborn child may be adversely af-

fected by lead levels below those permitted by OSHA

Standards. An example of a similar practice found in

everyday experience is the medical and dental professions’

extreme care and caution in the use of X-ray procedures

on pregnant women. These procedures are generally

avoided during pregnancy and, when absolutely neces-

Sary, are performed in manners designed to minimize

any possible danger to the unborn child.

The analysis that we have conducted under the bona

fide occupational qualification standards of Title VII is

analogous to the approach the Supreme Court took in the

First Amendment context in Sable Communications »v.

F.C.C., 109 S. Ct. 2829 (1989). There the Supreme

Court dealt with the question of whether Congress’ ban

on “dial-a-porn” services was narrowly tailored to serve

a compelling governmental interest “in protecting the

physical and psychological well-being of minors,’”* very

similar to Johnson’s interest in protecting the health of

the unborn through the female employee. In the consti-

tutional context, as in the bona fide occupational qualifica-

tion context, when an entity attempts to further this type

of interest it must be accomplished with “ ‘narrowly

drawn regulations designed to serve those interests with-

out unnecessarily interfering with First Amendment

freedoms,’”’ * or, in this case, Title VII rights. The

41 Sable, 109 S. Ct. at 2836.

42 Id. (quoting Schaumberg v. Citizens for a Better Environment,

444 U.S. 620, 637 (1980) (citations omitted) ).

56a

Court went on to apply this analysis in considering the

same type of question at issue in this case, whether the

current status of technology requires a “total ban” or

whether there are alternatives which would less compre-

hensively restrict the involved rights while still effectively

furthering the relevant institutional interests. The Court

determined that Congress’ enactment was Improper based

upon its conclusion that “the congressional record con-

tains no legislative findings that would justify us in con-

cluding that there is no constitutionally acceptable less

restrictive means, short of a total ban, to achieve the

Government’s interest in protecting minors.’ Sable, 109

S. Ct. at 2838. The Court’s analysis began:

“The Government ... argues that the total ban

on indecent commercial telephone communications is

justified because nothing less could prevent children

from gaining access to such messages. We find the

argument quite unpersuasive. The FCC, after

lengthy proceedings, determined that its credit eard,

access code, and scrambling rules were a satisfactory

solution to the problem of keeping indecent dial-a-

porn messages out of the reach of minors. The Court

of Appeals, after careful consideration, agreed that

these rules represented a ‘feasible and effective way

to serve the Government’s compelling interest in pro-

tecting children. [Carlin Communications, Ine. v.

FCC, 837 F.2d 546, 555 (2d Cir.) (Carlin IIL), cert.

denied, 109 S. Ct. 305 (1988) ].”

Sable, 109 S. Ct. at 2837. The Supreme Court went on

to note that it disagreed with the government’s assertion

that it had determined that there was not a technologi-

cally feasible means to further its interests other than

through a complete ban. The Court set forth the govern-

ment’s position:

“The Government now insists that the rules would

not be effective—that enterprising youngsters could

57a

and would evade the rules and gain access to com-

munications from which they should be shielded.

There is no evidence in the record before us to that

effect nor could there be since the FCC’s implemen-

tation of § 223(b) prior to its 1988 amendment has

never been tested over time. In this respect, the

Government asserts that in amending § 223(b) in

1988, Congress expressed its view that there was not

a sufficienti, effective way to protect minors short of

the total ban that it enacted. The Government

claims that we must give deference to that judg-

ment.”

Id. The Court in its rejection of this position stated:

“(T]he congressional record contains no legislative

findings that would justify us in coneluding that

there is no constitutionally acceptable less ¥estrictive

means, short of a total ban, to achieve the Govern-

ment’s interest in protecting minors.

There is no doubt Congress enacted a total ban on

both obscene and indecent telephone communications.

But aside from conclusory statements during the de-

bate by proponents of the bill, as well as similar

assertions in hearings on a substantially identical

bill the year before, that under the FCC regulations

minors could still have access to dial-a-porn mes-

sages, the Congressional record presented to us con-

tains no evidence as to /ow effective or ineffective

the FCC’s most recent regulations were or might

prove to be. It may well be that there is no fail-safe

method of guaranteeing that never will a minor be

able to access a dial-a-porn system. ... No Con-

gressman or Senator purported to present a con-

sidered judgment with respect to how often or to

what extent minors could or would circumvent the

rules and have access to dial-a-porn messages. On

the other hand, in the hearings on H.R. 1786, the

Committee heard testimony from the FCC and other

58a

witnesses that the FCC rules would be effective and

should be tried out in practice... .

For all we know from the record, the FCC’s tech-

nological approach to restricting dial-a-porn mes-

sages to adults who seek them would be extremely

effective, and only a few of the most enterprising

and disobedient young people will manage to secure

access to such messages. If this is the case it seems

to us that § 223(b) |the total ban] is not narrowly

tailored effort to serve the compelling interest of

preventing minors from being exposed to indecent

telephone messages.”

Id. at 2838-39 (citations and footnotes omitted, emphasis

in original). In contrast to the government in Sable, as

noted above, Johnson Controls research, innovated and

spent at least $15 million in lead control policies and has

been unable to devise a policy other than the exclusion

of fertile women from high lead exposure positions that

would be capable of adequately serving Johnson’s legiti-

mate interest in protecting the health of the unborn.

There has been no convincing exposition in the record of

any suitable alternative or of scientific, medical or techni-

cal evidence supporting the efficacy of such an alternative.

We believe that in a bona fide occupational qualification

case, as in a business necessity case, we are constrained

by the maxim that: “ ‘Courts are generally less com-

petent than employers to restructure business practices,’

Furnco Construction Corp. v. Waters, 438 U.S. 567, 578

(1978); consequently, the judiciary should proceed with

eare before mandating that an employer must adopt [an

alternative employment practice] in response to a Title

VII suit.” Wards Cove, 109 S. Ct. at 2127. Accordingly,

the absence of economically and technologically feasible

alternatives to Johnson Controls’ fetal protection policy

also supports a bona fide occupational qualification deter-

mination.

There is a reasonable basis in fact, grounded in medical

and scientific research data, for concluding that Johnson

59a

Controls’ has met its burden of establishing that the

fetal protection policy is reasonably necessary to indus-

trial safety.** Thus, the fetal protection policy should be

recognized as establishing a bona fide occupational pro-

tecting the policy against claims ef sex discrimination.

VI.

A business necessity defense should be applied to a

challenge to a fetal protection policy under Title VII.

Johnson Controls has produced facts which would demon-

strate the availability of such a defense and the UAW

has failed to carry its burden of persuasion through ex-

position of facts necessary to present a genuine issue of

material fact with respect to the absence of such a de-

fense. Even if the bona fide occupational qualification

defense is applied to this matter, Johnson Controls has

demonstrated that its fetal protection policy is reason-

ably necessary to industrial safety. Thus, the district

court’s entry of summary judgment in favor of Johnson

Controls is

AFFIRMED.

43 Judge Easterbrook suggests that “by one estimate 20 million

indusirial jobs could be closed to women,” if “the majority is

right,” “for many substances in addition to lead pose fetal risks.”

Easterbrook Dissent at 96. This assertion is based upon the follow-

ing language in Bureau of National Affairs’ Special Report, Preg-

nancy and Employment p. 57 (1987): “One government source esti-

mates that 15 million to 20 million jobs in the United States ex-

pose workers to chemicals that may cause reproductive injury.”

(Emphasis supplied). This speculative statement, taken at its face

value, merely suggests a possibility of reproductive injury from

unidentified and undefined toxic substances. Before our decision

could be applied to any of these unidentified substances, obviously

they would have to be subjected to the myriad tests and research

that have conclusively established the grave risk from lead sub-

stances. Thus, an employer presenting a business necessity or

bona fide occupational qualification defense would have to establish

that the substance had undergone the same rigid testing and re-

search. In addition, if ever a lead-free battery were developed,

the problems in this case would fall by the wayside. We hope that

this is achieved temorrow.

60a

CUDAHY, Circuit Judge, dissenting:

I respectfully dissent from the majority opinion. I

would be pleased to join almost all of Judge Easterbrook’s

eloquent dissent except for its disposition of the case.

Here I join Judge Posner’s equally cogent statement,

which adopts the BFOQ standard but advocates remand

for a full trial on that basis. It may (and should) be

difficult to establish a BFOQ here but I would afford the

defendant an opportunity to try.' I agree with Judge

Easterbrook that this “is likely the most important sex-

discrimination case in any court since 1964...” and its

painful complexities are manifestly unsuited for sum-

mary judgment. In any event, BFOQ defense is clearly

the only one the statute allows in this disparate treat-

ment case. It is unfortunate that the majority gives a

1QOn this issue, I disagree with Judge Easterbrook’s conclusion

that the BFOQ standard could never be satisfied in a case such

as this. As Judge Posner’s dissent suggests, the BFOQ defense

need not be narrowly limited to matters of worker productivity,

product quality and occupational safety. The employer may permis-

sibly consider the possible risks to (even potential) third parties

in the normal course of business decisionmaking. However, the em-

plover must demonstrate “fa factual basis for believing that all or

substantially all women would be unable to perform safely [i.e.,

without inordinate risk to third parties, including fetuses] and

efficient!y the duties of the job involved.” Weeks v. Southern Bell

Tel. & Tel. Co., 408 F.2d 228, 235 (5th Cir. 1969). As Judge Easter-

brook notes in discussing the disposition of this case under the

Wright-Hayes standard, substantial factual questions remain con-

cerning whether occupational exposure to lead presents a substantial

risk to the fetus, whether this risk is transmitted only through the

pregnant woman and whether less restrictive alternatives would

adequately safeguard the employer's interest in fetal health and

safety. So long as it is understood that the burden to prove these

matters rests on the employer, and that this burden may not be

met by unsubstantiated hypotheses or claims of scientific uncer-

tainty, see Torres v. Wisconsin Dep't of Health & Social Servs.,

859 F.2d 1523, 1533-34 (7th Cir. 1988) (en banc) (Cudahy, J., dis-

senting), I am comfortable with allowing the employer at least the

opportunity to attempt to meet this demanding standard.

a

6la

new life of sorts to the result-oriented gimmickery of

Wright v. Olson Corp., 697 F.2d 1172 (4th Cir. 1982).

It is a matter of some interest that, of the twelve fed-

eral judges to have considered this case to date, none has

been female. This may be quite significant because this

case, like other controversies of great potential conse-

quence, demands, in addition to command of the disem-

bodied rules, some insight into social reality. What is the

situation of the pregnant woman, unemployed or working

for the minimum wage and unprotected by health insur-

ance, in relation to her pregnant sister, exposed to an in-

determinate lead risk but weil-fed, housed and doctored?

Whose fetus is at greater risk? Whose decision is this to

make? We, who are unfortunately all male, must address

these and other equally complex questions through the

clumsy vehicle of litigation. At least let it be complete

litigation focusing on the right standard.

POSNER, Circuit Judge, dissenting. Johnson Controls

refuses to employ any woman to make batteries unless

she presents medical evidence of sterility. Today this

court holds that refusal lawful under Title VII. A reader

of the majority opinion might be excused for thinking

that the case had been fully tried—and before this court

—rather than decided by a district judge on a motion

for summary judgment. I think it a mistake to suppose

that we can decide this case once and for all on so meager

a record. It is a mistake whether we affirm, on the

ground that the evidence of danger to the fetus of a

woman working in an environment dense with airborne

lead, combined with evidence of the difficulty of reducing

the amount of lead any further, conclusively establishes

the lawfulness of Johnson Controls’ policy, or reverse,

with directions to enter judgment for the plaintiffs, on

the ground that Title VII outlaws all fetal protection pol-

icies because “all bear more heavily on female than on

male workers.

62a

Title VII forbids an employer deliberately to exclude

a worker from a particular job because of the worker’s

sex unless sex is a “bona fide occupational qualification

reasonably necessary to the normal operation of that pes-

ticular business or enterprise.” 42 U.S.C. § 2000e-2

(e)(1). This defense is central to the appeal and we

should attend carefully to its scope and meaning. It is

written narrowly and has been read narrowly. See, e.g.,

Dothard v. Rawlinson, 433 U.S. 321, 332-37 (1977);

Torres v. Wisconsin Dept. of Health & Social Services,

859 F.2d 1523, 1527-28 (7th Cir. 1988). There is no use-

ful legislative history concerning the defense, and—no

doubt because the prohibition of sex discrimination was

added to Title VII at the last minute—no reference at all

to the application of the defense to sex discrimination.

A narrow reading is, nevertheless, inevitable. A broad

reading would gut the statute. For it is unlikely that

most employment discrimination in the private sector is

irrational. Few private employers discriminate without

having some reason for doing so; competition tends to

drive from the market firms that behave irrationally.

See Becker, The Economics of-Discrimination (2d ed.

1971). If the defense of bona fide occupational qualifi-

cation were broadly construed—for example, to excuse

all sex discrimination that the employer could show was

cost-justified—very little sex discrimination in employ-

ment, as well as very little employment discrimination

based on religion or national origin (forms of discrimina-

tion that, like sex discrimination but unlike discrimina-

tion based on race or color, are also excused if a bena fide

occupational qualification is established), would be for-

bidden. Title VII’s reach would be shortened drastically.

Two courts of appeals faced with challenges under Title

VII to fetal protection policies have concluded that such

policies can never satisfy the stringent requirements of

the occupational qualification defense. See Wright v. Olin

Corp., 697 F.2d 1172, 1185 (4th Cir. 1982); Hayes v.

63a

Shelby Memorial Hospital, 726 F.2d 1543, 1549 (11th

Cir. 1984). But this conclusion, rather than resulting in

instant victory for the plaintiffs, led those courts to stitch

a new defense expressly for fetal protection cases. See

697 F.2d at 1183-92; 726 F.2d at 1548-54. I am not

myself deeply shocked that courts sometimes rewrite

statutes to address problems that the legislators did not

foresee—a notable but not isolated example being the

judicial interpolation of the word “reasonable” into sec-

tion 1 of the Sherman Act to prevent th2+ atomization of

society that Justice Holmes so feared. See National So-

ciety of Professional Engineers v. United States, 435 U.S.

679, BST-88 (19781: Northern Securities Co. v. United

States, 193 U.S. 197, 410 (1904) (Holmes, J., dissent-

ing). Speaking of Holmes, he wrote a splendid opinion

holding that a requirement in the Massachusetts constitu-

tion of a “written vote” could be satisfied by a voting

machine that involved no writing. See Jn re House Bill

No. 1,291, 178 Mass. 605 60 N.E. 129 (1901). And in

the famous “murdering heir” case, Riqgs v. Palmer, 115

N.Y. 506, 22 N.E. 188 (1889), the court in effect inserted

the words “unless the legatee murdered his testator” into

a statute that entitled legatees to inherit under wills

executed with the proper formalities. (Notice the age of

these last two cuses; they were not the work of new-

fangled judicial activists.: Recently the First Circuit

struck two words from a federal statute to make it make

sense, See United States v. Colon-Ortiz, 866 F.2d 1, 11

(Ist Cir. 1989). There are many similar exan les. I do

not think judges must or should ratify absurd results by

sticking doggedly to the plain meaning of statutory lan-

guage.

But we do not need to bite this bullet here, because

the wording of the occupational qualification provision is

not so cramped that it has to be stretched to bring (some)

fetal protection policies within its seope. Cf. Pime v.

Loyola Universiiy, 803 F.2d 351, 356-57 | 7th Cir. 1986)

64a

(concurring opinion), Nor is a defensible way of stretch-

ing it to recast what is plainly a disparate treatment

case—that is, a case of intentional discrimination against

a protected group—as a disparate impact case, and then

invoke the recent decision in which the Supreme Court

expanded the “business necessity’ defense. See Wards

Cove Packing Co. v. Antonio, 109 S. Ct. 2115 (1989);

also Allen v. Seidman, No. 88-1811 (7th Cir. July 27,

1989). This legerdemain is as unnecessary as it is ques-

tionable, “{R]easonably necessary,” one of the key terms

of the occupation:.] qualification defense, means more than

just reasonable bit less than absolutely necessary. On

the way to concluding that the defense is unavailable in

fetal protection cases the court in Wright misquoted the

provision by leaving out the word “reasonably,” see 697

F.2d at 1185 n. 21, and the misquotation is faithfully re-

peated in Hayes, see 726 F.2d at 1549. The other key

words of the defense, “normal operation” (emphasis

added), should dispel! concern that consideration of all

interests other than the employer’s interest in selling a

quality product at the lowest possible price is precluded.

It is possible to make batteries without considering the

possible consequences for people who might be injured in

the manufacturing process, just as it would be possible

to make batteries with slave laborers, but neither mode

of operation would be normal. To confine the occupational

qualification defense to concerns with price and product

quality would deny a defense to Johnson Controls even

if the company excluded only pregnant women, as distinct

from all women who might become pregnant, from mak-

ing batteries. I do not understand the plaintiffs to be

arguing that Title VII requires Johnson Controls to per-

mit women known to be pregnant to continue working in

an atmosphere dense with lead. If on the other hand a

fetal protection policy that excludes women from a

given job classification cannot be said to be reasonably

necessary to the employer’s normal operation, I do not see

65a

why we should want to save it from condemnation under

Title VII.

I have described what I conceive to be the scope of the

bona fide occupational qualification defense, and its appli-

cation to sex discrimination, as of the original enactment

of Title VII. I must now consider the bearing of the

Pregnancy Discrimination Act of 1982, which amended

Title VII by defining sex discrimination to include dis-

crimination on the basis of pregnancy. The only section

amended was the definition section, 42 U.S.C. § 2000e

(k). The prima facie case of sex discrimination was

broadened; the defenses remained unchanged. Maybe

Scherr v. Woodland School Community Consolidated Dis-

trict No. 50, 867 F.2d 974, 978 (7th Cir. 1988), goes too

far in saying that “as a definition amendment, the PDA

provides no substantive rule to govern pregnancy dis-

crimination.” For one thing, the amendment shows that

the present case really is a disparate treatment case, that

is, a case of intentional discrimination that can be ex-

cused only if the defendant establishes a bona fide occu-

pational qualification; the amendment makes fertile

women, the group that Johnson Controls deliberately ex-

cluded from a job classification, a group protected by

Title VII. The amendment also helps us understand that

the occupational qualification defense could not be merely

a cost justification or reasonable relation defense, for if

it were, the amendment would be ineffectual. Any em-

ployer can prove that it costs something to make an ac-

commedation for pregnant or potentially pregnant work-

ers and therefore it is rational not to make the accom-

modation. But we already knew the defense was a nar-

row one.

The defense is applicable to this case and although it

is of limited scope it is not the proverbial eye of a needle.

in particular, the “normal operation” of a business en-

compasses ethical, legal, and business concerns about the

effects of an employer's activities on third parties. An

66a

employer might be validly concerned on a variety of

grounds both practical and ethical with the hazards of

his workplace to the children of his employees. A preg-

nant employee exposed to heavy concentrations of lead

in the air may absorb the lead into her bloodstream and

from there transmit it to her fetus through the placenta,

causing, years later, mental retardation or other injury

to the child. The parties agree that there is a solid med-

ical basis for concern with fetal injury from airborne

lead in the concentration found in battery plants, and

this concern could in turn cause the employer to worry

about being sued by injured children of his employees.

Such a suit would not be preempted by workers’ compen-

sation law, because the plaintiff would net be the worker.

The employer would therefore be exposed to full common

law damages, punitive as well as compensatory. The

mother’s own negligence—for if she had been clearly

warned of the hazard, but voluntarily became pregnant

anyway and continued to work making batteries, she

would be acting negligently with regard to the fetus—

would not be imputed to the child and therefore would

not reduce the employer's liability. See, eg., Collins v.

Eli Lilly Co.. 116 Wis. 2d 166, 200 n. 14, 342 N.W.2d

87, 53 n. 14 (1984): In re Estate of Infant Fontaine,

519 A.2d 227, 230 (N.H. 1986); Fabianke v. Weaver,

527 So. 2d 1253, 1258 ‘Ala. 1988). It would merely make

the mother a joint tortfeasor with the employer. More-

over, she might not be negligent: the pregnancy might

be involuntary, and lead can injure the fetus before the

mother knows she is pregnant.

Some courts have said that to create liability, the in-

jury to the fetus must occur after the fetus has become

viable (able to survive outside the mother’s body). And

as I just noted, lead in the mother’s bloodstream can

enter the fetus very early in the pregnancy—this pre-

sumably is the reason that Johnson Controls’ fetal pro-

tection poliey isso strict. But the distinction between

67a

injury to the fetus before it becomes viable and injury

after makes no sense with regard to tort liability—since

the plaintiff is the child, not the fetus—and has generally

and correctly been rejected. See, eg., Renslow v. Men-

nonite Hospital, 67 Ill. 2d 348, 367 N.E.2d 1250 (1977) ;

Bergstreser v. Mitchell, 577 F.2d 22 (8th Cir. 1978);

Prosser and Keeton on the Law of Torts § 55, at pp. 368-

69 (5th ed. 1984).

Other questions concerning tort liability remain un-

answered—in particular whether the standard of liability

is negligence or strict liability and whether compliance

with OSHA’s rules on safe levels of airborne lead is a

defense. As a result it is difficult to estimate Johnson

Controls’ exposure to tort liability, but it would be pre-

mature, in this age of mass-tort suits (which for example

drove the asbestos industry into bankruptcy), to dismiss

it as trivial. The possibility of tort suits against battery

manufacturers for lead injury to the child of a female

employee is not merely a theoretical one. There has al-

ready been one reported case; the plaintiff got to a jury,

but lost. See Security National Bank v. Chloride, Ine.,

602 F. Supp. 294 (D. Kan. 1985). It is true that John-

son Controls has not yet attempted to document its lia-

bility concerns (one can understand the company’s reluc-

tance, by drawing public attention to its exposure to tort

liability, to invite suits). But in moving for summary

judgment the company was not required to present all its

evidence to the district judge on pain of being barred

from presenting it at the trial and I believe should be

held to determine whether sex is a bona fide occupational

qualification for making batteries.

We should not dismiss the concern over tort liability

as a narrow, selfish “bottom line” concern irrelevant to

the purposes of Title VII. The potential cost of tort lia-

bility to Johnson Controls is an approximation of the

potential cost to the children who have suffered prenatal

injury from the airborne lead absorbed into their mothers’

68a

bloodstreams. That is a social cost that Title VII does

not require a company to ignore. At some point it may

become large enough to affect the company’s normal

method of operation and supply the ground for a bona

fide occupational qualification of infertility.

A related point is that an employer might have moral

qualms about endangering children or might fear the

effect on his public relations. The ethical concern cannot

be wholly dismissed, as could an ethical conviction that

a woman’s place is in the home. We know from the con-

troversy over abortion that many people are passionately

protective of fetal welfare, and they cannot all be ex-

pected—perhaps they cannot be required—to park their

passions at the company gate. That “strong [state] in-

terest in protecting the potential life cf the fetus’’ of

which the Supreme Court spoke in Maher v. Roe, 432

U.S. 464, 478 (1977), and other cases is not a judicial

invention; it is the product of a groundswell of powerful

emotion by a significant part of the community, and is

only indirectly, although possibly substantially, in con-

flict with women’s workplace aspirations. Granted, in

Doe v. First National Bank, 865 F.2d 864, 873 (7th Cir.

1989), we assumed that the Pregnancy Discrimination

Act forbids an employer to fire a woman for having an

abortion, and although the point had not been argued our

assumption may well have been correct. See H. Conf.

Rep. No. 1786, 95th Cong., 2d Sess. 4 (1978) (‘no em-

ployer may, for example, fire or refuse to hire a woman

simply because she has exercised her right to have an

abortion’). If so, the result is to place a limitation on

an employer’s effort to protect fetal life. But the Preg-

nancy Discrimination Act affects only the prima facie

ease of sex discrimination. The defenses are untouched.

No defense of bona fide occupational qualification was

pleaded in Doe.

If the hazard to the fetus from airborne lead in the

mother’s workplace is sufficiently great, if the amount of

69a

lead in the environment cannot be reduced without dis-

continuing the production of batteries, and if experience

demonstrates that some women will become pregnant even

after being clearly warned of the hazards to which the

fetus would be exposed (there are many careless preg-

nancies, as is shown by the frequency of abortion and of

illegitimate birth), I can find nothing in the text of the

statute, or in its history or purpose, to prevent an em-

ployer from defending his refusal to allow fertile women

to work in jobs in which they are exposed to dangerous

concentrations of airborne lead on the ground that such

refusal is reasonably necessary to the normal (civilized,

humane, prudent, ethical) operation of his particular bus-

iness. It is a matte. of degree, and this we cannot as-

sess on a summary judgment record. Of course the ac-

ceptance of the defense might be a hardship for those

women who, though fertile, would not become pregnant.

But hardship for the plaintiff is a possibility whenever

a defense is sustained. It is no more than a possibility

here, as we shall see.

Let us not be deceived by superficial historical analogies

or facile invocations of “paternalistic.” It is true that

laws discriminating against women were once defended

on the basis of a compelling social interest in protecting

their fitness to bear and raise children, see, e.g., Muller

v. Oregon, 208 U.S. 412, 421-22 (1908), that this ground

may have masked a desire to prevent women from com-

peting with men for jobs ‘in any event this may have

been the effect, see Landes, The Effect of State Mavi-

mum Hours Laws on the Employment of Women in 1920,

88 J. Pol. Econ. 476 (1980)), and that many modern

American women resent the suggestion that women have

a special responsibility for perpetuating the human race.

But we do not have a discriminatory /aw here. A law

that commands all employers in a given line of business

to treat women specially cannot be equated to a decision

by a firm in a competitive market to treat them specially,

70a

if only because in the latter case other firms are free to

follow a different course. There is also a difference be-

tween protecting women against themselves as well as

protecting children, and protecting an employer and his

employees’ unborn children. A paternalistic measure is

one that protects a person against himself, and insofar

as Johnson Controls was motivated in adopting its feta!

protection policy by concern with tort liability or adverse

publie relations, it was acting to protect its cwn inter-

ests. A fetus, moreover, is a different person (or proto-

person) from its mother, and not all pregnant women

fully internalize the welfare of their fetus, infant, or

child. There are plently of selfish and irresponsible par-

ents, not all of whom are male. A fetal protection policy

is less paternalistic than a maximum-hours law.

I conclude that Title VII even as amended by the

Pregnancy Discrimination Act does not outlaw all fetal

protection policies. Whether a particular policy is law-

ful is a question of fact. and since the burden of proof

is on the defendant it will be the rare case where the

lawfulness of such a policy can be decided on the defend-

ant’s motion for summary judgment. This is not that

rare case. Even if we accept that the amount of airborne

lead in Johnson Controls’ battery-making operation is

dangerous to the fetuses of female employees and that

the company cannot reduce the danger further without

shutting down the operation, a host of unanswered ques-

tions remains. The first concerns the feasibility of warn-

ings as a substitute for a blanket exclusion of all fertile

women. Before Johnson Controls adopted the blanket ex-

clusion, eight women employed in the battery operation

had become pregnant in three years. But we do not know

what fraction of women employed in the operation this

was, because—remarkably—the record does not reveal

the number of women employed in the operation. And

the only warning that was in effect during that period

was one more likely to allay than to arouse concern. It

Tla

compared the fetal hazards of airbrone lead to those of

cigarette smoking, and many women do not believe that

smoking is highly hazardous to the fetus. The plaintiffs

believe that a real “scare” warning would have deterred

those eight pregnancies; maybe they are right.

We do nut know what other manufacturers of batteries

do about the hazards of airborne lead to the fetus—

whether they are content to rely on warnings, for ex-

ample, and if so of what kind and with what effect. Ap-

parently General Motors once had a fetal-protection pol-

icy identical to that of Johnson Controls, see Sirota, Sex

Discrimination: Title VII and the Bova Fide Occupa-

tional Qualification, 55 Tex. L. Rey. 1025, 1958 n. 198

(1977); I have no idea whether it still does. The evi-

dence of record concerning the potential hazard to the

fetus through a father exposed to airborne lead is frag-

mentary and stale, yet if that hazard is significant the

fact that Johnson Controls does nothing about it under-

mines the company’s argument that its fetal protection

policy is motivated by concern for the fetus and reason-

ably necessary to the operation of the battery business.

See Levin v. Delta Air Lines, Inc., 730 F.2d 994, 998-99

(5th Cir. 1984). The evidentiary gap is due in part to

the fact that the record on which the district judge based

his grant of summary judgment was closed two and half

years ago. A further consequence of the aging of the

record is that we lack up-to-date information on the

hazards of airborne lead to the fetus even through the

mother. The record is also blank on the wages and al-

ternative employment opportunities of the women em-

ployed in Johnson Control’s battery operation. These

data would be pertinent to the plaintiffs’ ingenious al-

though speculative argument that by depriving women

of high-paying jobs, fetal protection may reduce women’s

expenditures on fetal and child care, possibly harming the

fetus and child as much as do the environmental hazards

against which those policies are directed.

72a

We also do not know how profitable the business of

manufacturing batteries is, and therefore how vulnerable

it is to fears, as yet speculative, of litigation arising from

fetal damage. (The case at this stage Is a Ussue of specu-

lation.) Apparently a vaccine was once withdrawn tem-

porarily from the market because of teags of ——

litigation, see H.R. Rep. No. 908, oth Cong., 2d Sess.

6 (1986); see generally Gaskins, Environmental Accl-

dents: Personal Injury and Public Responsibility 161-62

(1989), and the lower the profit margin in making bat-

teries the more plausible a concern with possible litiga-

tion becomes. The plaintiffs would have won a Pyrrhic

victory if as a result of their winning this suit Johnson

Controls shut down its battery operation, or if, as has

happened with so many products formerly manufactured

in this country, production shifted overseas and American

automobile makers—which already use plenty of imported

components—imported batteries made by companies that

may have no regard either for fetal safety or for women’s

welfare. If Johnson Controls terminated its battery op-

eration as a result of this suit, the plaintiffs would be

in the same position as if the occupational qualification

defense had prevailed except that they might—which is

to say, realistically, that their lawyers might—recover

attorney’s fees. A “failing company” or “failing divi-

sion” component of the occupational qualification defense

makes at least as much sense as the counterpart provision

in antitrust law.

Even on the limited record before us, however, it is

clear that the defendant’s fetal protection policy is eX-

cessively cautious in two regards: _first in’ presuming

that any woman under the age of 70 is fertile, and second

in excluding a presumptively fertile woman from any job

from which she might ultimately be promoted into bat-

tery making, even if her present job does not expose her

to lead. Since these aspects of the policy are severable

from the rest of it I do not think their deficiencies need

73a

condemn the entire policy, especially since the first is

harmless because a woman too old to bear children has

only to submit a letter to that effect from her doctor to

be permitted to work in the battery plant. But these de-

ficiencies do underscore the precipitancy of deciding this

case in the defendant’s favor on the basis of the present

record. It is not enough that an employer has some rea-

son for adopting a policy that discriminates against

women. Otherwise Los Angeles Dept. of Water & Power

v. Manhart, 435 U.S. 702 (1978), which struck down

gendered annuity tables, would have come out the other

way. Yet it would be a mistake to infer from Manhart

that policies that lump all (or most) women into a class

for unfavorable treatment are therefore unlawful per se.

They are discriminatory, but this just means that the

employer must shoulder the burden of establishing that

the classification which excludes women is reasonably

necessary to the normal operation of his business. That

the occupational qualification defense remains available

in such ease is implicit in the Court’s discussion of the

defense in Manhart. See id. at 716 n. 30.

The issue of the legality of fetal protection is as novel

and difficult as it is contentious and the most sensible

way to approach it at this early stage is on a case-by-

ease basis, involving careful examination of the facts as

developed by the full adversary process of a trial. The

record in this case is too sparse. The district judge

jumped the gun. By affirming on this scanty basis we

may be encouraging incautious employers to adopt fetal

protection policies that could endanger the jobs of mil-

lions of women for minor gains in feta] safety and health.

But although the defendant did not present enough evi-

dence to warrant the grant of summary judgment in its

favor, there is no ground for barring it from presenting

additional evidence at trial. Therefore it would be equally

precipiate for us to direct the entry of judgment in

the plaintiffs’ favor—something that the plaintiffs in the

Tda

conclusion of their brief do not ask us to do, even though

Rule 28(a! (5) of the Federal Rules of Appellate Proce-

dure requires the appellant to place at the end of his

brief “a short conclusion stating the precise relief sought.”

They do argue earlier in the brief that Johnson Con-

trols’ fetal provection policy is invalid, and if accepted

this argument would obviate the need for a trial. But it

is premature to accept it, as the plaintiffs themselves may

have realized in formulating their request for relief. We

should be as hesitant to endanger the health of children

by condemning all fetal protection policies as we should

be hesitant to endanger the jobs of women by placing our

imprimatur on such policies. We should vacate the dis-

trict court’s judgment and remand for further proceed-

ings to enable the compilation of an adequate evidentiary

record.

EASTERBROOK, Cirevit Judge, with whom FLAuUM, Cir-

cuit Judge, joins, dissenting. Whether the employers

should restrain adults from engaging in acts hazardous

to their children is an ethical, medical, economic, and po-

litical problem of great complexity. But this is a statu-

tory case, and we must implement the law rather than

give our own answer. Jonhson’s policy is sex diserimina-

tion, forbidden unless sex is a “bona fide occcupational

qualification’’—which it is not.

I

Title VII of the Civil Rights Act of 1964 forbids em-

ployers “to discriminate against any individual . . . be-

cause of such individual’s . . . sex”, 42 U.S.C. § 2000e-2

(a) (1), unless sex is a “bona fide occupational qualifica-

tion reasonably necessary to the normal operation of that

particular business or enterprise”, 42 U.S.C. $ 2000e-2

‘e) (1). Both the district court and the majority believe

that the fetal protection policy may be lawful despite the

absence of a BFOQ.

75a

A

Johnson uses sex as a ground of decision. The fetal

protection policy applies to all women and no men. It is

not written without reference to gender, having an un-

welcome side effect. Cf. Personnel Administrator of Mas-

sachusetts v. Feeney, 442 U.S. 256 (1979). Differences

between the sexes are its stated rationale. Only women

tranmsit lead to children during pregnancy. Because a

few women become pregnant with elevated levels of lead

in the blood ‘in four years, eight out of an unknown

number), Johnson excludes all women from the danger

zone. This treats an employee not as an individual but

as a woman. A plan using sex as a criterion and justified

by arguments referring to sex is “discriminat{ion] .. .

because of ... sex”. Los Angeles Department of Water

& Power v. Manhart, 435 U.S. 702 (1978).

General Electric Co, v. Gilbert, 429 U.S. 125 (1976),

held that a rule distinguishing on account of pregnancy is

not sex discrimination, because women are in both the

“pregnant” and “non-pregnant” groups. See also Geduldig

v. Aiello, 417 U.S. 484 (1974). The Court saw the line

as one between pregnant employees and all others, a line

based on something other than sex (or at least something

in addition to sex). Johnson’s line based on ability to be-

eome pregnant, however, is assuredly based on sex. That

would be ground for distinguishing Gilbert, but Congress

interred Gi/b rt in 1978 by enacting the Pregnancy Dis-

crimination Act, 42 U.S.C. § 2000e(k) (the PDA), which

provides:

The terms “because of sex”? or “on the basis of sex’

(in Title VII} include, but are not limited to, because

of or on the basis of pregnaney, childbirth, or related

medical conditions: and women affected by preg-

nancy, childbirth, or related medical conditions shall

be treated the same for all empioyment-related pur-

poses ... as other persons not so affected but simi-

lar in their ability or inability to work....

76a

This amendment to Title VII makes distinctions based on

women’s ability to bear children sex discrimination. It

also has a built-in BFOQ standard: unless pregnant em-

ployees differ from others “in their ability or inability

to work’’, they must be treated “the same” as other em-

ployees “for all employment-related purposes”. Although

located in a definitional provision, the language after the

semicolon is substantive and governs Johnson’s plan.

Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982),

the only other appellate decision that has dealt with a

fetal protection policy similar to Johnson's, took a dif-

ferent view.’ Wright observed that a policy using sex

as a ground of decision may cause women no more injury

than a policy ventral with regard to sex, yet having a

disparate impact. A policy designed to promote the health

of offspring of both sexes is neutral in objective. A sex-

neutral policy is judged under an approach more lenient

than the BFOQ standard. Believing that a fetal protec-

tion policy rests on strong justifications, Wright treated

the policy as sex-neutral so that it could sustain a rule

functionally identical to Johnson's. 697 F.2d at 1184-92.

This makes things turn not on whether the employer

uses sex as a ground of decision but on whether the em-

plover uses sex to serve a “good” policy. If the policy

is beneficient and the injury to women “tolerable” in

light of the interests served, the court changes the stand-

ard of inquiry. Yet whether a policy is “good” is a statu-

tory question, governed by the BFOQ test stated in § 2000e-

2(e)(1) and the supplemental rule of the PDA that

1Two other cases often are treated as bearing on the validity

of such policies: Hayes v. Shelby Memorial Hospital, 726 F.2d 15438

(11th Cir. 1984); Zuniga v. Kleberg County Hospital, 692 F.2d 986

(5th Cir. 1982). Both involved x-ray technicians fired immediately

after their employers discovered that they had become pregnant,

and not policies that disqualified women generally. I therefore put

Hayes and Zimiga to one side for the time being, although they

return in Part II.

77a

women and men who are “similar in their ability or in-

ability to work” musi be treated the same. A court’s be-

lief that a good eiid is in view does not justify departure

from the statutory framework; it is an occasion for ap-

plying the statutory framework. Wright ignored the PDA

and inverted ordinary rules of statutory interpretation

when stating (with echoes in the majority’s opinion to-

day): “The inappropriateness of applying the overt dis-

crimination ‘b.f.o.q. theory of claim and defense .. . is

that, properly applied. it would prevent the employer

from asserting a justification defense which under de-

veloped Title VII {disparate impact] doctrine it is en-

titled to present.” 697 F.2d at 1182 n.21. In other words,

this must be a disparate impact case because an employer

couldn’t win it as a disparate treatment case. If the

rigors of the BFOQ suggest the need for a fresh ap-

proach, that is a job for another branch. See TVA ».

Hill, 4837 U.S. 153 (1978). Cf. Richmond v. J.A. Croson

Co., 109 S. Ct. 706, 720-23 (1989) (the standard for

reviewing decisions based on race does not depend on the

strength of the justification or on who gains from its

use).

In principle a court could make the legal standard turn

on what the authors of a rule are trying to accomplish,

rather than on the criteria they use to get there. Whether

to do so was the nub of the debate in Manhart. Los

Angeles adopted a pension plan that collected more per

month from women during employment and paid retired

women the same per month as men. The city defended

the policy by observing that the sums collected matched

the actuarial value of the payments over the retired em-

ployees’ lives, because the average woman lives longer

than the average man and so receives more monthly

checks. Was it sex discrimination prohibited by Title

VII? The women said yes, on the ground that every

woman paid more per month than every man. The dif-

ference was based on sex and justified by an effect (lon-

78a

gevity) linked with sex. The emplover said no, on the

ground that the pension was worth the contributions ex

ante to men and women equally, and the groups there-

fore were treated equally. Only by using sex as a ground

of decision, the employer pointed out, could it achieve ac-

turial equality. The Court held that the policy was sex

discrimination, because the city used sex as the basis of

decision. That this criterion produced equal outcomes for

groups was irrelevant in the Court’s view, because Title

VII requires employees to be treated as individuals. To

say that sex had been considered in order to achieve equal

group averages, the Court believed, was to confess a vio-

lation of the law. See also Arizona Governing Committee

v. Norris, 463 U.S. 1073 (1983).

Manhart establishes two propositions that together are

fatal to Johnson’s position. First, Title VII requires equal

treatment of employees as persons rather than equal

treatment of groups defined by sex (or race, or any other

criterion listed in the statute)’. Observing that the aver

age member of one croup does as well as the average

member of another does not support the use of any given

ground of decision: indeed, resorting to notions of group

equality begs the question how a statute presumptively

forbidding the use of these criteria could permit them to

be used to justify conduct. Second, that equal treatment

of employees as persons will lead to higher costs of em-

ploying persons of a given sex is no defense. An obliga-

tion to pay men and women equal amounts per month

after retirement and deduct from pay the same amount

per month during employment means that the employer

must contribute greater sums per month during women’s

working years. That incremental cost of female employ-

ees is, as the Court construed the statute, no reason to

treat women differently. Again this is part of the idea

of an anti-discrimination law. Women may have higher

pension costs, or higher medical insurance costs (because

of pregnancy!, or take more days off. because of sickness,

79a

or have shorter careers (again because of children). Title

VII excludes these as reasons for preferring men, e.g.,

Orzel v. City of Wauwatosa, 697 F.2d 743, 755 (7th Cir.

1983). The PDA, requiring equal treatment of employees

“similar in their ability or inability to work” reinforces

this conclusion.

Manhart’s approach is the norm in anti-discrimination

law. Consider, for example, the Supreme Court’s first im-

portant sex discrimination case under Title VII, Phillips

v. Martin Marietta Corp., 400 U.S. 542 (1971). The em-

ployer refused to hire women with preschool-age children.

Such a rule might have had benefits for the children,

neutral with respect to sex, but the policy was not neu-

tral. The Court brusquely held that the policy is dis-

parate treatment, unlawful unless supported by a BFOQ.

Next consider the “bottom line” defense rejected in Con-

necticut v. Teal, 457 U.S. 440 (1982). The employer

contended that so long as it hired persons in a mixture

reflecting the applicants or population (the “bottom

line”), it did not matter that steps along the way ap-

peared to filter out members of one or another group.

The Court disagreed, because an argument based on the

bottom line treats persons as members of a group defined

by sex (race, ete.) and proceeds as if the groups (rather

than the applicants and employees) held the right to

equal treatment. Title VII, as the Court saw it. requires

the employer to treat the applicant as a person without

regard to race, sex, ete., on every occasion. These cases,

and others like them, dispatch arguments of the sort that

because the employer pursues an end, children’s welfare,

defined without regard to sex, a rule of decision that uses

seX as a criterion should be treated as if sex-neutral.

Cf. Palmore v, Sidoti, 466 U.S. 429 (1984) (same ap-

proach in constitutional law).

When the employer engages in sex, race, or age dis-

crimination in an effort to protect customers or members

of the public, courts regularly see this as disparate treat-

80a

ment, for which a BFOQ is essential. See Johnson v.

Mayor and City Council of Baltimore, 472 U.S. 353

(1985); Western Air Lines, Ine. v. Criswell, 472 U.S.

400, 422-23 (1985); Hahn v. City of Buffalo, 770 F.2d

12 (2d Cir. 1985); Heiar v. Crawford County, 746 F.2d

1190 (7th Cir. 1984). There is no reason why things

should be different when fetuses, rather than adult by-

standers, are the subject of the employer’s protection.

Furnco Construction Corp. v. Waters, 488 U.S. 567,

576 (1978), says that the details of the “prima facie

case” of discrimination, and the order of proof and rebut-

tal at trial, are flexible and should be adjusted to the

circumstances. See also Price Waterhouse v. Hopkins,

109 S. Ct. 1775 (1989). Our case does not concern the

order of proof and methods of inference; Johnson ex-

pressly uses sex to make decisions. When Wisconsin ex-

cluded male guards from a women’s prison, we saw this

as disparate treatment and searched for a BFOQ. Torres

v. Wisconsin Department of Health and Social Services,

859 F.2d 1523, 1526-28 (7th Cir. 1988) (en bane). Here,

too, there is disparate treatment. Fetal protection policies

therefore may be justified. if at all, as BFOQs.

A word about the enforcement policy of the Equal

Employment Opportunity Commission. The Commission

told its staff to use Wright and the elaboration of its

approach in Hayes v. Shelby Memorial Hospital, 726 F.2d

1543 (11th Cir. 1984), when investigating fetal protec-

tion policies. Ordinarily the EEOC’s views about the

meaning of Title VII are entitled to deference. This

policy, however, does not so much interpret Title VII as

adopt guidelines for prosecution. Prosecutorial guidelines

reflect limitations on the agency’s resources and existing

judicial interpretations; they do not define the meaning

of the law. The Commission told its staff to follow the

courts.” The guidelines do not discuss the PDA or Man-

* The policy statement, Notice No. n915.024 (Oct. 7, 1988), Says

at p. 1 n.l: “three courts of appeals have considered cases in-

8la

hart and give no reason for adopting the Wright-Hayes

approach as opposed to the BFOQ standard. This may be

sound from a prosecutorial perspective but does not ad-

dress the question in our case. If the EEOC’s statement

is designed as an interpretive rule, it is neither reasoned

nor consistent with Title VII. See Public Employees Re-

tirement System of Ohio v. Betts, 109 S. Ct. 2854, 2863

(1989).

B

The statute allows an employer to show that considera-

tion of sex is “reasonably necessary to the normal opera-

tion of that particular business”, Dothard v. Rawlinson,

433 U.S. 321, 332-37 (1977); Criswell, 472 U.S. at 422-

23; Torres, 859 F.2d at 1527. The plaintiffs argue that

“the sex based practice involved here should . . . be held

invalid” (Br. 44) because the reasons Johnson offers can-

not establish a BFOQ even if factually supported. The

Fourth Cireuit (unlike the majority of this court) be-

lieves that as a matter of law a fetal protection policy

does not satisfy the standards for a BFOQ, see Wright,

697 F.2d at 1185 n.21, and I think it has this much cor-

rect for two reasons: Johnson’s stated objectives are in-

sufficient, and even if sufficient do not apply to all

women,

Johnson defends its fetal protection policy on the basis

of concern for the welfare of the next generation, an ob-

jective unrelated to its ability to make batteries (s 2000e-

2'e) (1) speaks of the “operation of the business”) or to

any woman's “ability or inability to work” (the standard

of the PDA). Johnson allowed women to work until 1982,

without ill effects on its business: for all we know (the

record is silent), other firms in the same business employ

volving fetal hazards ... , thereby helping the development of

an analytical framework for deciding such cases. This policy state-

ment is an elaboration of that framework... .”’ See also p. 4: “the

Commission follows the lead of every court of appeals to have ad-

dressed the question”.

82a

women in the kinds of jobs from which Johnson excludes

them. The majority does not mention the PDA, which,

added to BFOQ rule, puts out of bounds the justifications

Johnson offers.

At oral argument before the panel counsel offered a

new defense of Johnson’s policy: that it is morally re-

quired to protect children from their parents’ mistakes.

This justification is redolent of Muller v. Oregon, 208

U.S. 412 (1908), which sustained a statute curtailing

women’s hours of work on the ground that maternal func-

tions unsuited women for long hours. The Court wrote:

[Bly abundant testimony of the medical fraternity

continuance for a long time on her feet at work, re-

peating this from day to day, tends to injurious ef-

fects upon the body, and as healthy mothers are es-

sential to vigorous offspring, the physical well-being

of woman becomes an object of public interest and

care in order to preserve the strength and vigor of

the race. ... |H]er physical structure and a proper

discharge of her maternal functions—having in view

not merely her own health, but the well-being of the

race—justify legislation to protect her from the

greed as well as the passion of man. The limitations

which this statute places upon her contractual powers

... are not imposed solely for her benefit, but also

largely for the benefit of all.

208 U.S. at 421-22. The “abundant testimony of the med-

ical fraternity” turned out to be the triumph of imagina-

tion over data. Dangers decried in Muller are today

perceived as chimerical. excuses for blockading women as

effective competitors of men in the labor force. Legisla-

tion of the sort allowed by Muller “protected” women out

of their jobs by making women less attractive as em-

ployees. An employer that needed flexibility in assigning

hours of work had to hire men: women were consigned

to jobs with regular hours but lower wages. See Elisa-

beth M. Landes, The Effect of State Maximum Laws on

83a

the Employment of Women in 1920, 88 J. Pol. Econ. 476

(1980) (finding that “protective” legislation reduced

women’s hours, hourly wages, and annual income). Such

laws also treat women in a stereotypical way. State laws

requiring or allowing employers to treat women differ-

ently, on the assumption that women are less able than

men to take the precautions essential for healthy children,

are preempted by Title VII—not because of an express

pr

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