# Appendix — International Union, United Automobile, Aerospace & Agricultural Implement v. Johnson Controls, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0705%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 499 U.S. 187 ## Text “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— : 7 i i : 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 lead situation at issue here, it is unlikely that the EP» would prevent the use of lead in the absence of a substitute. Further, because the TSCA is gender neu- tral, it would fail to protect the fetus which faces a sig- nificant risk from lead exposure because male and female are treated equally under the Act. IV. Conclusion Society has an interest in protecting fetal safety. -Lead poses a substantial risk of harm to the fetus. This risk is born only by women who are pregnant or will become pregnant. The plaintiffs have not shown that there is an acceptable alternative that would have a lesser impact on females. Johnson Controls fetal protection policy does not violate Title VII. Stillbirths, reduced birth weight and gestational age, and retarded cognitive development 120a are abnormalities too serious for this Court to find un- important. Defendant’s motion for summary judgment is hereby GRANTED. SO ORDERED this 21st day of January, 1988, at Milwaukee, Wisconsin. /s/ Robert W. Warren ROBERT W. WARREN United States District Judge 12la UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN Case No. 84-C-0472 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et al., . Plaintiffs, JOHNSON CONTROLS, INC., Defendant. ORDER It is hereby ordered that the opinion issued on Jan- uary 21, 1988, in the above-captioned case is amended as follows: On page 2 of the slip opinion, line 30, the typo- graphical error is corrected to read micrograms. On page 2, lines 24-26 are amended to read as follows: Women who are in positions where their blood lead levels do not rise to 30 micrograms are prohibited from trans- ferring into positions where their blood lead levels will rise above 30 micrograms. Page 13, lines 12-17 are amended to read as follows: That there are “significant risks of harm to the unborn children of women workers from their exposure during pregnaney to toxic hazards the workplace make neces- sary, for the safety of the unborn children, that fertile women workers, though not men workers, be appropri- ately restricted from exposure to those hazards and that its program of restriction is effective for the purpose.” SO ORDERED this 24th day of February, 1988, at Milwaukee, Wisconsin. s Robert W. Warren ROBERT W. WARREN United States District Judge 122a APPENDIX C UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN Case Number 84-C-472 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et al., Plaintiffs, V. JOHNSON CONTROLS, INC., Defendant. JUDGMENT IN A CIVIL CASE -j) Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered ts verdict. “) Decision by Court. This action came to trial or hear- ing before the Court. The issues have been tried or heard and a decision has been rendered. ()} IT IS ORDERED AND ADJUDGED that the fetal protection policy at issue does not violate Title VII, and defendant, Johnson Controls, Ine.’s, motion for summary judgment is granted. Date January 21, 1988 SOFRON I}. NEDILSKY Clerk s/ |Illegible] (By) Deputy Clerk 123a APPENDIX D UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT CHICAGO, ILLINOIS 60604 SEPTEMBER 28, 1989 Before Hon. WILLIAM J. BAUER, Chief Judge Hon. WALTER J. CUMMINGS, Circuit Judge HoN. HARLINGTON Woop, JR., Circuit Judge Hon. RICHARD D. CUDAHY, Circuit Judge Hon. RICHARD A. POSNER, Circuit Judge Hon. JOHN L. Correy, Circuit Judge Hon. JOEL M. FLAUM, Circuit Judge Hon. FRANK H. EASTERBROOK, Circuit Judge HoN. KENNETH F. RIPPLE, Circuit Judge Hon. DANIEL A. MANION, Circuit Judge Hon. MICHAEL A. KANE, Circuit Judge 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, vs. JOHNSON CONTROLS, INC., Defendant-A ppellee. 124a Appeal from the United States District Court for the Eastern District of Wisconsin No. 84 C 472—Robert W. Warren, J udge JUDGMENT—ORAL ARGUMENT This cause was heard on the record from the United States District Court for the Eastern District of Wis- consin, and was argued by counsel. On consideration whereof, IT IS ORDERED AND ADJUDGED by this Court that the judgment of the said District Court in this cause appealed from be. and the same is hereby, AFFIRMED, in accordance with the opinion of this court filed September 26, 1989. Costs are hereby awarded to the defendant-appellee and against only the plaintiff-appellant, International Union, United Automobile Aerospace and Agricultural Implement Work- ers of America, UAW. 125a APPENDIX E SUPREME COURT OF THE UNITED STATES No. A-437 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WoRKERS, UAW, et al., Petitioners Vv. JOHNSON CONTROLS, INC., ORDER UPON CONSIDERATION of the application of coun- sel for the petitioner, IT IS ORDERED that the time for filing a petition for a writ of certiorari in the above-entitled case, be and the same is hereby, extended to and including Jan- uary 12, 1990. s’ John Paul Stevens Associate Justice of the Supreme Court of the United States Dated this 8 day of December, 1989. 126a APPENDIX F SUPREME COURT OF THE UNITED STATES No. A-437 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICLLTURAL IMPLEMENT WORKERS UAW, et al., Petitioners . JOHNSON CONTROLS, INC. ORDER UPON CONSIDERATION of the application of coun- se] for the petitioner, IT IS ORDERED that the time for filing a petition for a writ of certiorari in the above-entitled case, be and the same is hereby, further extended to and including January 29, 1990, s John Paul Stevens Associate Justice of the Supreme Court of the United States Dated this 4th dav of January, 1990. 127a APPENDIX G NOTICE 1. SUBJECT: Policy Guidance on United Auto Workers v. Johnson Controls, Ine. F.2d ——, 51 EPD © 39,359 (7th Cir. 1989). 2. PURPOSE: This document discusses the decision in Johnson Controls in light of the Commission’s Policy Guidance on Reproductive and Fetal Hazards and clarifies the Commission’s position on the proper legal analysis to be applied to charges challenging fetal protection policies. 3. EFFECTIVE DATE: 4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, § a(5), this Notice will remain in effect until rescinded or superseded. 5. ORIGINATOR: Title VII EPA Division, Office of Legal Counsel. 6. INSTRUCTIONS: File behind Exhibit 624C of the EEOC Compliance Manual, Volume II, Section 624, Reproductive and Fetal Hazards. To be read in con- junction with the interim Policy Guidance on Fetal and Reproductive Hazards, dated October 7, 1988. 7. SUBJECT MATTER: 1. The Decision In United Auto Workers v. Johnson Controls, - F.2d . 51 EPD © 39,359 ‘7th Cir. 1989), a Title VII ac- tion challenging the company’s fetal protection policy, the Seventh Circuit, in an en bane decision by a vote of seven to four, affirmed the district court’s grant of sum- mary judgment in favor of Johnson Controls. 128a Johnson Controls maintains a fetal protection policy for its battery manufacturing division. That policy is “designed to prevent unborn children and their mothers from suffering the adverse effects of lead exposure.” Jo/n- von Controls, 51 EPD at 59,469. It provides 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.” Jd. at 59,470. In considering the evidence on whether lead poses a health risk to the offspring of Johnson’s female employ- ees, the Seventh Cirevit noted that “both the UAW and Johnson Controls agree on appeal that a substantial health hazard to the unborn child in the womb has been estab- lished.” Jd. at 59,472 ‘emphasis in original). After re- viewing the record, the court concluded that “*|t}he over- whelming evidence in this record establishes that an un- born child's exposure to lead creates a substantial health risk involving a danger of permanent harm.” Id. at 59,475. Turning to the issue of the proper Title VII defense available to Johnson Controls to justify its fetal protec- tion policy, the court reviewed the decisions of two courts of appeal = and EEOC’s Policy Guidance on Reproductive and Fetal Hazards ‘approved October 3, 1988) (herein- after referred to as “Policy Guidance on Fetal Hazards”). Both of the other courts of appeal and the EEOC had concluded that a business necessity defense may be util- ized. and the Seventh Circuit agreed with that conclusion, The Seventh Circuit described the other two courts’ anal- yses of the defense in fetal protection cases as requiring 1 Johnson Controt’s policy defines “women of childbearing capac- itv’ as “lalll women except those whose inability to bear children is medically documented.” Joknson Controls, 51 EPD at 59,470, n.8. 2 The two decisions referred to by the court were Wright v. Olin Corp., 697 F.2d 1172, 30 EPD © 33,257 (4th Cir. 1982), and Hayes - Shelby Memorial Hospital, 726 F.2d 1543, 33 EPD © 34,219 (11th Cir. 1984). 129a (1) a demonstration of the existence of a substantial health risk te the unborn child, and (2) establishment that transmission of the hazard to the unborn child oc- curs only through women. In addition, the plaintiff may present evidence of less discriminatory alternatives equally capable of preventing the health hazard to the unborn. The court in Johnson Controls stated that it was con- vinced that the business necessity defense ‘“‘balanced the interests of the employer, the employee and the unborn child in a manner consistent with Title VII.” Jd. at 59,479. Proceeding to the question of whether the business ne- cessity defense could be utilized to sustain Johnson Con- trol’s fetal protection policy, the Seventh Circuit consid- ered the recent Supreme Court decision in Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115, 50 EPD © 39,021 (1989). In that case the Supreme Court held that, once a prima facie case of disparate impact has been established, the employer carries the burden of producing evidence of business justification, but the burden of persuasion re- mains with the plaintiff. /d. at 2126. The Seventh Cir- cuit applied Wards Cove to the case before it, placing the burden on UAW to disprove business necessity. For sum- mary judgment purposes, the question confronting the court was whether “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.” Johnson Controls, 51 EPD at 59,480. On the question of whether there was a substantial risk of harm to the unborn child, the court found no genuine issue of material fact since both parties agreed on this point. As to the question of whether the risk of trans- mission of lead exposure to unborn children is substan- tially confined to fertile female employees, the court con- cluded that “the evidence of risk to the unborn child re- sulting from exposure of the father .. . is, at best, 130a speculative and unconvineing.” Jd. at 59,481. Finally with regard to adequate but less discriminatory alterna- tives, the court stated that UAW had failed to persuade it that “less discriminatory alternatives would equally effectively achieve an employer's legitimate purpose of protecting unborn children from the substantial risk of harm lead exposure creates.” /d. at 59,485. After concluding that Johnson Controls had established the business necessity defense and would thus be shielded fro:a liability, the Seventh Circuit stated that it was “also convinced that Johnson Controls’ feta! protection policy could be upheld under the bona fide occupational qualification defense.” Jd. at 59,484. The court recog- nized that the BFOQ exception to Title VII is extremely narrow, but said that the employer does not automatically lose whenever it must establish this defense. /bid. Not- ing that Johnson Controls’ business is’ “unique” because it requires the use of an extremely toxic substance, the court found that industrial safety is legitimately part of the “essence” of Johnson's business and that the fetal protection pelicy was directly related to industrial safety. In determining that Johnson's fetal protection policy was 3In reviewing the expert testimony on risk of harm to unborn children through male exposure to lead, the court stated that ‘Johnson Controls’ experts, without exception, testified that a mal worker’s exposure to lead at [OSHA approved! levels . . . did not pose a substantial risk of genetically transmitted harm from the male to the unborn child.” 51 EPD at 59,481. While UAW witnesses testified that animal studies had demonstrated a possible risk of genetic damage to human offspring as a result of male lead exposure, Johnson's experts took the position that the results of these studies were not scientifically established as being applicable to humans. The court noted that UAW had not presented any medical evidence of any human study scientifically documenting genetic defects in human beings resulting from male lead exposure, and stated that “it is this lack of convincing scientific data that the plaintiffs attempt to gloss over and cast aside in ignoring the differences between the effect of lead on the human and anima! reproductive systems.” /d. 13la reasonably necessary to further industrial safety, the court stated that “‘{[mlore is at stake ... than an in- dividual woman's decision to weigh and accept the risks of employment,’ since “|a| female’s decision to work in a high lead exposure job risks the intellectual and phys- ical development of the baby she may carry.” /d. at 59,488, quoting, Dothard v, Rawlinson, 433 U.S. 321, 335, 14 EPD © 7632 (1977). Thus, in summary, the Seventh Circuit found that a business necessity defense should be applied to a Title VII challenge to a fetal protection policy. It also found that Johnson Controls could demonstrate such a defense and that UAW failed to prove a genuine issue of material fact with respect to the absence of such a defense. Fi- nally, the court held that even if the BFOQ defense is applied, Johnson Control had shown its fetal protection policy reasonably necessary to industrial safety, which was part of the essence of its business. Four judges, Cudahy, J.. Posner, J., Easterbrook, J. and Flaum, J. filed three separate dissents. Judge Cu- dahy concluded that the only proper defense was BFOQ, that it would be “difficult” to establish the defense but that the employer should have the opportunity to try. 51 EPD at 59,491.' He also determined that the “painful complexities {of the case| are manifestly unsuited for summary judgment.” Jd. at 59,492. Judge Posner, too, thought that BFOQ was the only applicable defense and that the case should not have been decided on summary judgment. /bid. Like Judge Cudahy, he believed that, while the BFOQ defense is narrow, the employer might be able to establish that an exclusionary policy was “rea- sonably necessary to the normal operation of che busi- ness” and that it should have the opportunity to try. /d. at 59,493. ‘He also stated that he “would be pleased to join almost all of Judge Easterbrook’s eloquent dissent except for its conclusion that the employer could never prevail using the BFOQ defense!.” /bid. 132a Judge Easterbrook wrote a lengthy opinion joined by Judge Flaum. Like the other dissenters, he opined that BFOQ was the only proper defense to Johnson Control’s policy. Unlike the others, he thought protecting offspring could never be a BFOQ because, he said, the Pregnancy Discrimination Act ‘makes distinctions based on women’s ability to bear children sex discrimination” and such dis- tinctions can only be justified if the excluded women are dissimilar from others in their ability or inability to perform the functions of the job. Jd. at 59,498. He fur- ther stated that even assuming that the Wright-Havyes business necessity approach is the correct one, it was in- appropriate to apply Wards Cove and to shift the burden of proof to the plaintiff and that there were material dis- putes making the case unsuitable for summary judgment. Id. at 59.503. I]. Analysis a. Legal Standards In its interim guidance, the Commission did not con- template the Seventh Circuit’s application of the Wards Core business necessity standard, imposing on the plain- tiff the burden of disproving business necessity. The court’s approach represents a significant departure from the analytical framework previously developed by the Commission in its Policy Guidance on Reproductive and Fetal Hazards, dated October 7, 1988.2 In Wards Cove * Under the analvsis of the Eleventh Circuit in Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir. 1984), a case upon which the Seventh Circuit relied, the burden of proof would remain with the employer to demonstrate at least that there is a substan- tial risk of harm to the fetus that is only mediated through women. The Heyes court stated that fetal protection policies must be pre- sumed to be facially discriminatory. Adverse impact analysis would apply only if the emplover rebuts the presumption of facial discrimi- nation by proving that the hazard applies exclusively to women since the policy could then be viewed as neutrally protecting all emplovees’ offspring but adversely affecting only women. Thus, d 133a the Supreme Court considered the business necessity de- fense as it arises in a traditional adverse impact case, in which a facially neutral policy impacts on a_ protected group. The Court clarified its view that the burden is on the plaintiff at the final stage of proof in such a case to prove that the neutral policy or practice does not serve a legitimate employment goal of the employer. 109 8. Ct. at 2125-26. Fetal protection policies, however, are not neutral rules to which adverse impact analysis applies. Instead, as stated in the Commission’s Policy Guidance, policies which exclude only women constitute per se vio- lations of Title VII. For the plaintiff to bear the burden of proof in a case in which there is direct evidence of a facially discriminatory policy is wholly inconsistent with settled Title VII law. See Policy Guidance at 4 n.9, cit- ing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). Indeed, in Price Waterhouse v. Hopkins, 109 8. Ct. 1775, 1795, 49 EPD © 38,936 11989), a mixed motive case, the Court cited the leading feta! protection cases, Hayes and Wright, cited above at n.2, as illustrative of ‘ts longstanding assumption “that if an employer allows ender to affect its decision making process, then if must i the burden of justifying its ultimate decision.” 109 st. at 1789 ‘emphasis added). e Commission followed the lead of the only courts of appeals that had addressed the question in concluding that the business necessity defense applies, stating that ‘'t{hese cases do not fit neatly into the traditional Title VII analytical framework and, therefore, must be re- garded as a class unto themselves.” Fetal Hazards Policy Guidance at 4. We did not mean to suggest that a fetal protection policy fits within the category of an adverse impact case. (See Johnson Controls, 51 EPD at 59,493 (Posner, J., dissenting: (“this legerdemain is as unnec- Wards Core would not apply unless the emplover first carries its burden of proving that there is a substantial risk of harm that is substantially confined to fertile or pregnant women. 134a essary as it is questionable’)). Thus, in the Commis- sion’s view, Wards Cove should not apply to the analysis of the defendant's burden of proving business necessity in a fetal protection case. The majority's application of Wards Core to a facially discriminatory policy has convinced the Commission that the hybrid approach to fetal protection cases is problema- tie. As Judge Easterbrook said: |'Wihen the EEOC issued its policy statement, ... “'hlusiness necessity” and “BFOQ” were not so distinct. !After] Wards Cove, however, . . . the Wright-Hayes approach has been watered down. The court's “adoption” of Wright. Hayes, and the EEOC’s policy statement is thus in practice more favorable to employers that the Fourth and Eleventh Circuits (and the EEOC) anticipated their approach would be. The plaintiff won in Hayes; she would lose under * >» majority’s approach. 51 EPD at 5° 93 ‘emphasis in original). In the interim Fetal Hazard Policy Guidance at 4 n.19, the Commission said that a BFOQ analysis is arguably applicable. Given the Seventh Cireuit’s uncritical application of the Wards Cove adverse impact burdens to a factually distinct claim of facial discrimination, we now think BFOQ is the bet- ter approach. As the Johnson Controls dissenters point out, it is more consistent with Title VII's structure and purpose to allow a defendant in a case challenging a fa- cially discriminatory fetal protection policy only the stat- utory defense of proving that sex is a “bona fide occupa- tional qualification ren onably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 20000-2'e)(1'. 51 EPD at 59,492 (Cudahy. J.): id. at 59,492-93 (Posner, J.': and id at 59,499-500 (Easterbrook, J., and Flaum, J.). The question. then, is whether and to what extent an employer can establish a BFOQ defense in these cases. 135a This will ultimately be matter of judiciai interpretation of the language of the BFOQ provision. The Wright and Hayes courts “concluded that | fetal protection] policies can never satisfy the stringent requirements of the oc- cupational qualification defense.” 51 EPD at 59,493. Judges Easterbrook and Flaum took a similar view. Id. at 59,500. For purposes of its investigations, and as a matter of public policy, the Commission is unwilling to say that no possible defense is available to an employer that has a fetal protection policy." Rather, the Commis- sion’s position is best reflected by Judge Cudahy’s obser- vation that ‘|i]t may (and should) be difficult to estab- lish a BFOQ |in fetal hazard cases! but I would afford the defendant an opportunity to try”. Jd. at 59,491.7 In applying the BFOQ defense to these cases, we cau- tion that the defense is written and should be read nar- rowly. See 51 EPD at 59,493 (Posner, J., dissenting). It imposes a threshold requirement that the employer must state a reasonably necessary business objective for its fetal protection policy. While Judge Easterbrook does not think fetal protection has anything to do with John- son Controls’ ability to make batteries, id. at 59,493, Judge Posner concludes that the “normal operation” of a busi- ness can incorporate the employer's legitimate concerns "Every court to have addressed the question has allowed the employer the opportunity to justify its policy. The Commission’s investigatory policy must reflect this reality. To apply the Easter- brook approach to Commission charge processing would be to pre- pare cases inadequately for litigation. ‘There is, however, considerable merit to Judge Easterbrook’s observation that allowing an employer the oppertunity to justify a sex discriminatory fetal protection policy embroils the Commission and courts in scientific conflicts that they are ill equipped to prop- erly resolve. 51 EPD at 59,501-02. Title VII and the institutions which enforce it were designed to eliminate employment discrimina- tion, not to evaluate evidence concerning workplace safety. Such evaluations are better left to agencies with appropriate expertise such as OSHA or the EPA. 136a for the safety of others... As he says, “It is possible to make batteries without considering the possible conse- quences for people who might be injured in the manu- facturing process, just as it would be possible to make batteries with slave laborers, but neither mode of opera- tion would be normal.” 51 EPD at 59,493. Therefore, the Commission concurs with Judge Cudahy’s observation that the employer “may permissibly consider the possible risks to (even potential) third parties in the normal course of business decision making.” 51 EPD at 59,492 n.l. The employer must show that protection of third parties from risk is “reasonably necessary to the normal opera- tion of the particular business.”" One cannot merely assume, for purposes of analysis of a Title VII discrim- ination claim, that containment of any hazard, however improbable or inconsequential, is “reasonably necessary” * Accord 51 EPD at 59,491 n.1 (Cudahy, J., dissenting) ("On this issue, I disagree with Judge Easterbrook's conclusion that the BFOQ standard could never be satisfied in a case such as this... So long as it is understood that the burden to prove [that all or substantially women cannot perform the job without inordinate risk to third parties, including fetuses] rests on the employer, and that this burden may not be met by unsubstantiated hypotheses~ or claims of scientific uncertainty, (citation omitted). I am com- fortable with allowing the employer at least the opportunity to attempt to meet this demanding standard.” ) *In Western Air Lines v. Criswell, 472 U.S. 400, 37 EPD © 35.291 (1985), involving a challenge to an airline's policy of requiring mandatory retirement for flight engineers at age 60, the Supreme Court described the BFOQ defense in the public safety context. First, the employer must prove that: the job qualifications [he] invokes to justify his discrimination [are] reasonably necessary to the essence of his business. . . . The greater the likelihood of harm and the probable severity of ~that-harm ..., the more stringent may be the job qualifications designed to insure safe[ ty]. Id. at 413, citing Usery v. Tamiami Trail Tours, Ine., 531 F.2d 224, 236, 11 EPD {§ 10,916 (5th Cir. 1976). 137a to that business’s “normal operation’—this must be proven.'" To prove that such a practice is reasonably necessary the employer must demonstrate that it takes reasonable steps to identify and appropriately shield all persons from the hazard against which it purports to pro- tect the excluded group. Most obviously, where an em- ployer has excluded pregnant or potentially pregnant women on the basis of a perceived risk to the fetus, it. must show that it similarly protects the offspring of its male employees from the same or analogous risks. In ad- dition, it must show that it attempts to protect others from the same hazard. Containment of a particular haz- ard, such as lead, can hardly be reasonably necessary to its normal operations if the employer carelessly exposes everybody to that hazard except potential offspring of female employees. If the employer establishes that protecting -others from the particular hazard is part of its normal business op- erations, it must then establish that its exclusionary pol- icy is reasonably necessary to further that interest. As the Supreme Court said in Western Air Lines, Inc. v. Criswell, 471 U.S. 400, 414, 37 EPD © 35,291 (1985), the discriminatory qualifications must: be something more than ‘convenient’ or ‘reasonable’: they must be reasonably necessary . . . to the par- In age public safety cases, for example, to justify its exclusion of older workers on safety grounds, the employer must demonstrate that to protect the public from real risks, it applies the same stand- ards across the board. Where, for example, a police department defends its exclusion of older officers on the basis of lower aerobic capacity or alleged higher risk of cardiac disease, the Commission has consistently argued that, to make out a BFOQ defense, the department must impose similar fitness requirements on all of its officers. It cannot establish that protecting the public against the risks occasioned by an officer suffering a cardiac incident is reason- ably necessary to the normal operations of its particular business if it retains younger officers who, by virtue of factors such as smoking or obesity, pose a similar risk. 138a ticular business,’ and this is only so when the em- ployer is compelled to rely on [the discriminatory classification] as a proxy for the safety related job qualifications validated in the first inquiry. In a BFOQ defense of a fetal protection policy excluding women workers, the employer must prove that there is a substantial risk of harm to offspring through occupa- tional exposure of potential parents to the hazard iden- tified. Next, if it applies its protective policy only to women, it must prove that the risk is transmitted only through pregnant women and that it has a factual basis for believing that all or substantially all of the excluded group cannot perform the job without jeopardizing the safety of the group’s offspring. (See Johnson Controls, 51 EPD at 59,492 n.1 (Cudahy, J., dissenting), citing Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 235 (5th Cir. 1969)). In other words, the employer must prove that the policy it has adopted to reduce risk is narrowly tailored: if it excludes all fertile women when the risk is only through pregnant women and there are reasonable steps which can be taken to reduce or eliminate, as neces- sary, the exposure of pregnant women, the exclusionary policy cannot be said to be “reasonably necessary”.'' Sim- ilarly, if there are reasonable ways to test for safe levels of the hazard, as is true in the case of radiation and lead exposure, the employer that does not use such tests to minimize the extent of the exclusion will not meet its BFOQ obligations. In short, whether one applies the BFOQ or the “busi- ness necessity”’ analysis as discussed in the fetal hazard policy guidance, the burden is on the employer to justify The majority does not appear to have required Johnson Con- trols to make this showing. It acknowledged the propriety of the Weeks standard but perfunctorily concluded that the policy was a BFOQ without discussing whether Johnson Controls has proved that it had defined the excluded group as narrowly as_ possible despite the fact that the policy excluded all women age 70 and under. 139a its policy. The pertinent questions are: 1) whether there exists a substantial risk of harm to offspring through workplace exposure to a hazard; 2) whethe that risk takes place only through the exposure of one sex; 3) whether the policy minimizes the risk while excluding the narrowest possible group; and 4) whether there are rea- sonable alternatives which are less onerous to women. See Fetal Hazard Policy Guidance, nn. 14-17 and accom- panying text. b. Propriety of Summary J udgment The Seventh Cireuit found no genuine issue of materia] fact to warrant denial of summary judgment to Johnson Controls. In the Commission’s view, as stated in the in- terim Fetal Hazard Policy Guidance at n.22, this ease did present conflicting evidence. As Judge Cudahy stated in his dissent, this case presented “painful complexities |which] are manifestly unsuited for summary judgment.” 51 EPD at 59,492. Commission investigators should not overlook or dismiss conflicting evidence on the basis of the Seventh Circuit decision. Although the majority was satisfied that sub- stantial risk to the fetus was established. Judge Easter- brook stated that there was a dispute as to the extent to which the level of lead to which Johnson exposes its em- ployees would endanger a fetus. Jd. at 59,503. He also observed that the risk of harm to a fetus should also in- clude the risk of inferior prenatal care resulting from removing women or denying them access to well-paying jobs with attendant health insurance. Id. at 59,505. There was substantial conflicting evidence as to whether the risk of lead exposure to a fetus is mediated only through women. 51 EPD at 59,492 (Cudahy, J., dissent- ing!. See EEOC’s Policy Guidance on Reproductive and Fetal Hazards at 9 n.22 (district court’s issuance of sum- mary judgment in Johnson Controls was not appropriate because there was conficting evidence about harm medi- 140a ated through men). Judge Easterbrook, in his dissent, stated that the American Public Health Association and other medical groups, filed an amicus brief “marshaling an impressive array of studies linking lead with injury to the male reproductive system, and thence to offspring. Id. at 59,506. While most of the data came from animal studies. some human studies, according to Judge Easter- brook, also suggest the same result. The majority in Johnson Controls rejected UAW’s ani- mal research evidence, stating that it was “speculative, “unconvincing” and not “solid scientific data.” Jd. at 59,481. See n.3, above. Commission investigators should not reject animal studies in such a wholesale manner. See 51 EPD at 59,506 (Easterbrook, J., dissenting} (“The medical profession . .. will be stunned to discover that animal studies are too “speculative”, slip op. 33, to be the basis of conclusions about risks”). These studies may in some cases provide the best available evidence to evaluate fetal or other human health hazards in the workplace. Certainly, the data from the animal research in this case, along with the other data provided, should have been suf- ficient to create a genuine issue of material fact war- ranting denial of summary judgment. Also significant to the issue of harm mediated through both sexes, is OSHA’s finding that lead in men, as well as women, is hazardous to the unborn and its conclusion that exclusion of only women is not the proper solution. The majority failed even to acknowledge this aspect of OSHA’s findings. See id. at 59,505, citing 43 Fed. Reg. 52953, 52966 (1978) and 29 C.F.R. Part 1910, pp. 833-34 (1987). Commission investigators, in contrast, should defer to pertinent con- clusions by appropriate government agencies. See n. 16 and accompanying text. There was also conflicting evidence as to the feasibility of more narrowly drawn alternative measures. See Judge Posner’s dissent at 51 EPD at 59,496, noting that, even assuming harm, there were questions about the “‘feasibil- l4la ity of warnings as a substitute for a blanket exclusion of women”,'* and “what other battery manufacturers do about the hazards of airborne lead to the fetus.” Judge Eatserbrook observed that women could be allowed to work in areas in which many employees are able to keep their blood levels within the safe range to see if they can do the same. 51 EPD at 59,507. III. Charge Processing Commission field offices should not rely on the Johnson Controls decision as guidance for processing “fetal haz- ards” charges.'* Employment policies that exclude women on the basis of pregnancy or capacity to become pregnant are discriminatory on their face and employer justifica- tions for such policies must be examined critically. The majority in Johnson Controls gave undue deference to the employer’s judgment in broadly drawing its exclusionary policy. The court stated that this deference was required due to the “unique” nature of Johnson’s business and the “difficult societal problem” that the policy was de- signed to address.” 51 EPD at 59,487. As further sup- port, the court twice quoted the Supreme Court’s state- ment in Wards Cove, that “|cjourts are generally less competent than employers to restructure business prac- tices . . . land] consequently, the judiciary should pro- ceed with care before mandating that an employer must '’ Before adopting its blanket exclusion of women “of childbear- ing capacity,” Johnson Controls issued a mild warning comparing the fetal hazards of airborne lead to those of cigarette smoking. 51 EPD at 59,496. During that period, eight women in the battery division became pregnant, but the record did not reveal the total number of women employed. Thus, it is possible that even the mild warning was effective for the vast majority of female employees, and that a stronger warning would have deterred other fertile women from working in the division. 18 Of course, it is currently binding precedent in the Seventh Circuit and offices in that Circuit must evaluate charges in light of it. 142a adopt [an alternative employment practice| in response to a Title VII suit.” /d. at 59,487 and 59,491, quoting Wards Cove, 109 S.Ct. at 2127. However, the Supreme Court’s statement was made in the context of an adverse impact challenge to neutral job selection practices. Such deference is not required when the practice that is chal- lenged is facially discriminatory. The directions for investigation and evaluation of evi- dence set forth by the Commission in its interim Policy Guidance on Reproductive and Fetal Hazards, as elabo- rated on by this document, should continue to be followed in processing charges challenging fetal protection poli- cies." See also Section 624 of the Compliance Manual. While the Commission now believes, for the reasons ex- plained above at 6, that a BFOQ rather than business necessity is the appropriate defense, the elements of in- quiry set forth in the policy guidance remain applicable to Commission investigation of fetal hazard policies. As stated above, fetal protetcion policies that exclude only one sex from particular jobs are facially discriminatory and cannot easily be justified. The first inquiry is whether protection from the hazard at issue is part of 14 Two aspects of the interim Policy Guidance need to be clarified. First, it stated that where there was reliable evidence of risk to women, but inconclusive evidence of risk to me, the Commission would proceed as if the risk were confined to women. In so saying, the Commission was referring to situations in which the evidence of risk to men was speculative and meager. It intended that where there is reliable—albeit inconclusive—evidence of harm mediated through men the Commission will conclude that excluding only women is not justified and will issue a cause LOD. Second, the chart at the end of the policy guidance is confusing, in part because it was developed under the rubrie of business necessity, and should no longer be relied upon. Finally, while the Policy Guidance reflects the fact that most fetal hazard policies exclude women, it is possible that an employer might exclude only men. The interim Policy Guidance, as clarified here, would apply equally to such cases, with the genders simply being reversed. 143a the normal operation of the business. Second, there must be objective evidence of substantial risk to offspring through workplace exposure of the excluded group. Mere suspicion or fear of risk is not sufficient. The scientific evidence must also show that the harm is mediated only through the excluded group. Finally, the policy will net withstand scrutiny if a less discriminatory alternative policy is reasonably 2vailable that would effectively pro- tect employees’ offspring. In evaluating these cases, the field must weigh the ex- tent of the risk against the breadth of the exclusion. Thus, where the risk is slight, in terms of numbers and nature of the harm, any exclusion will be hard to justify; conversely, severe harm to a high percentage of those exposed may warrant a broader exclusion.'"* See 51 EPD at 59,504 (Easterbrook, J., dissenting) (‘a small risk, even if compellingly documented, is not enough to exclude women from employment’). For further guidance on evidence to be obtained, sce Policy Guidance on Fetal Hazards at 6-7. In determining whether the harm is mediated only through one sex, animal research should be considered along with any other objective scientific evidence. The Commission will defer to pertinent findings by govern- ment agencies such as OSHA or NIOSH." See Policy Guidance on Fetal and Reproductive Hazards at 8. ™ As the Supreme Court noted in Criswell, the first prong of the BFOQ test “adjusts to the safety factor.” 472 U.S. at 413. See supra n.6. 1 Of course, the Commission would consider evidence of scientific developments subsequent to the issuance of government regulations which might, for example, show substantial risk at a lower level of exposure than was thought harmful when the regulations were written. However, where an agency such as OSHA has found evi- dence of harm mediated through men and has explicitly rejected the approach of excluding only women, the Commission will generally defer to that decision in determining whether an exclusionary policy is justified. l44a Even if the risk of harm were mediated only through one sex, the Commission thinks that an exclusion as broad as the one in Johnson Controls could seldom be justified. Again, these are discriminatory policies and must be drawn as narrowly as possible consistent with achieving legitimate safety goals. Johnson Controls ex- cluded all presumptively fertile women even from non- hazardous jobs from which they might be promoted into high-lead jobs.'* 51 EPD at 59,497. This aspect of the “fetal protection” policy is not necessary to protect the offspring; rather it is a matter of convenience. As such it could not constitute a defense (See Crisiwell quoted supra at &) and the Commission would find cause as to the portion of the policy even if it concluded that some exclusion may be warranted. Finally, where safe blood levels can be ascertained there can be little reason to exclude women whose blood levels are within the safe range. While it is the Commission's position that the employer carries the burden of proof in litigation of justifying the challenged policy, the investigator should seek out all reasonably available evidence relating to the workplace hazard, the risk of fetal or reproductive harm, the steps the employer takes to protect others from the hazard, the harm mediated through the non-excluded sex and any less discriminatory alternative policies. Date: 1 24 90 Approved: sR. Gaull Silberman R. GAULL SILBERMAN Vice Chairman 17 The employer's policy also was excessively cautious in presum- ing that any woman under the age of 70 is fertile. 51 EPD at 59,497. However, Judge Posner noted that this aspect of the policy was harmless since 2 woman too old to bear children need only submit a letter to that effect from her doctor to be permitted to work in the battery plant. 145a APPENDIX H STATUTORY PROVISIONS INVOLVED Title VII of the 1964 Civil Rights Act, § 701(k), 42 U.S.C. § 2000e (k), provides: . (ki The terms “because of sex” on the basis of sex” include, but are not limited to, because of or on the basis of »nregnancy, childbirth, or related medical conditions; and women affected by pregnancy, child- birth, or related medical conditions shall be treated the same for all employment-related purposes, includ- ing receipt of benefits under fringe benefit pro- grams, as other persons not so affected but similar in their ability or inability to work, and nothing in sec- tion 2000e-2(h) of this title shall be interpreted to permit otherwise. ... Title VII of the 1964 Civil Rights Act, § 701(a), 42 U.S.C. $ 2000e-2' a), provides: (‘al Employer practices It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or na- tional origin: or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely af- fect his status as an employee. because of such indi- vidual’s race, color, religion, sex, or national origin. 146a Title VII of the 1964 Civil Rights Act. $ 703:e), 42 U.S.C. § 2000e-21e111', provides in part: ‘e! Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employ- ment practice for an employer to hire and employ employees, . .. on the basis of his religion, sex, or national origin in those certain instances where re- ligion, sex, or national origin is a bona fide oceupa- tional qualification reasonably necessary to the normal operation of that particular business or en- terprise,... --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0705%3A03. Public record. Not legal advice.