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

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Supreme Court of the

OCTOBER TERM, 1989

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE

AND AGRICULTURAL IMPLEMENT WORKERS OF

AMERICA, et al.,

¥ Petitioners,

JOHNSON CONTROLS, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

JOINT APPENDIX

JORDAN ROSSEN STANLEY S. JASPAN

RALPH O. JoNES (Counsel of Record)

8000 E. Jefferson Avenue CHARLES G. CurTis, Jr.

Detroit, Michigan 53214 SUSAN R. MAISA

MARSHA S. BERZON ANITA M. SORENSEN

(Counsel of Record) FOLEY & LARDNER

177 Post Street, Suite 300 777 East Wisconsin Avenue

San Francisco, California 94108 Milwaukee, Wisconsin 53202

(415) 421-7151 (414) 271-2400

CARIN ANN CLAUSS Counsel for Respondent

750 University Avenue

Madison, WI 54706

LAURENCE GOLD

815 16th St., N.W.

Washington, D.C. 20006

Counsel for Petitioners

———— nna

_ PETITION FOR CERTIORARI FILED JANUARY 29, 1990

CERTIORARI GRANTED MARCH 26, 1990

o> ~

TABLE OF CONTENTS

Page

Chronological List of Relevant Docket Entries... 1

District Court Opinion, as amended * 3

Re scpieinciuineaenntiiadtioniamaciasibiaeains 21

STIITUIEY srriiniccieasieeicenassiichbt ac Nat a eo 43

Ross Deposition (Horwitz Aff., Ex. A) _..... SE Ns 54

Ross Memorandum (Ross Depo., Ex. 8) .... ................. 55

EEOC Charge—Lois A. Sweetman (Horwitz Aff., Ex.

Sin sicsiatiadieeadanlcseassanieteimmniateememipaendiaaten as ae cacaet 57

EEOC Charge—Elsie Nelson, Mary Estelle Smith and

Linda Burdick (Horwitz Aff., Ex. C) 2.0.0.0... 58

EEOC Charge—Shirley Jean Mackey (Horwitz Aff.,

RD, RPE EU ete Wears eee SON, NREN TT aT REE 60

EEOC Charge—Mary Craig (Horwitz Aff., Ex. G)_... 62

EEOC Charge—Anna May Penney (Horwitz Aff.,

See sesnaniealtasheicibcieldesigdabicacinitaiinigilietihaseiiaa snidltsidee tae 64

EEOC Charge (2)—Donald Penney (Horwitz Aff.,

nF scecictehentsdaniaaiaiiceinpcidacadgicenicanadacdiaiemaden ede oo 66, 68

nD TIT a cisaseonetoneebinietioamiisisamunmiedicss 70

ELE eae PaaS 71

EER OT ER Tae 75

Johnson Controls’ Fetal Protection Policy (Beaudoin

EN EE OI etedisiattiaeeiaiceti ie eee ee 80

Beaudoin Testimony (Beaudoin Aff., Ex. B) 87

« hnson Controls’ Lead Hygiene Program (Beaudoin

A II cieticpadnci bari hanaite ates ee alee ed = 104

Johnson Controls’ Biological Monitoring Program

(Beaudoin Aff., Ex. D) ...... iepensinepeeaniieninienibdieebinaneinentee 114

Johnson Controls’ Medical Surveillance Program

(Beaudoin Aff., Ex. F) 000 127

* The unamended opinion was reproduced in the Petition for Writ

of Certiorari.

TABLE OF CONTENTS—Continued

Page

Johnson Controls’ Periodic Occupational Medical Eval-

uation (Beaudoin Aff., Ex. G) 0000000000 134

Johnson Controls’ Policy Guidelines for Women in Lead

Exposure (Beaudoin Aff., Ex. J) ——

Battery Division—Lead Absorption Profile (Beaudoin

I 145

Battery Division—Blood Lead Profile (Beaudoin Aff.,

ERR ES SERIES a none To Ba Se 9 146

Fishburn Testimony (First Aff. of Jaspan, Ex. A)... 147

Chisolm Deposition (Second Aff. of Jaspan, Ex. A) ...... 165

Es ee 179

Statement of Centers for Disease Control (Scialli Aff.,

ASE ES ae sa eee ee 183

I 185

Whorton Article (Whorton Aff., Ex. C) 00 188

TR RN nc 198

Silverstein Deposition (Jones Aff., Ex. A) 202

Silbergeld Deposition (Jones Aff., Ex. B) 226

Legator Deposition (Jones Aff., Ex.C) 249

Defendant’s Response to Plaintiffs’ Interrogatories

RETA ke 260

Silverstein Affidavit 000000000000. ceeeeee eee. 261

Article—Blood Lead and Blood Pressure (Silverstein

REESE EEC 2 ee 263

Third Affidavit of Stanley Jaspan with Brix Deposi-

REESE PLE aE ED. AEE eee ee 264

iii

The following items have been omitted in printing this

joint appendix because they appear on the following pages in

the appendix to the Petition for Certiorari:

Page

Opinion of the United States Court of Appeals for the

TET LE la

nT 122a

Court of Appeals Judgment —...22... 2... oe eect eeeceeeeeeeeees 123a

Order Extending Time for Filing of Petition for Writ

REID a A 125a

Order Further Extending Time for Filing of Petition

i , sencemibosmeniianeisensonsase 126a

Equal Employment Opportunity Commission Policy

Guidance Document on United Auto Workers v.

Johnson Controls, —— F.2d —— (7th Cir. 1989).

TL 127a

Statutory Provisions Involved .000000000000oooo ooo. 145a

et eee we ottne

CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES

In the Matter of: International Union, United Automobile,

Aerospace and Agricultural Implement Workers of America,

UAW, v. Johnson Controls; Case No. 84-C-0472

DATE NR ENTRY

04/06/84

06/01/84

11/27/84

11/30/84

12/05/84

12/07/84

02/25/85

08/14/86

09/10/86

09/18/86

Complaint ; Summons issued

Answer

Affidavit of Miriam R. Horowitz in Support

of Motion for Class Certification with At-

tached Exhibits

Affidavit of Eunice Williams

Affidavit of Beverly Tucker

Affidavit of Anna May Penney

Affidavit of Donald Penney with Exhibit

ORDER; Granting Plaintiff’s Motion for

Class Certification

Defendant’s Motion for Summary Judgment

Affidavit of Paul B. Hammond

Affidavit of Jean Beaudoin

First Affidavit of Stanley S. Jaspan

Second Affidavit of Stanley Jaspan

Affidavit of Anthony Scialli

Affidavit of M. Donald Whorton

Affidavit of J. Julian Chisolm

Plaintiff UAW’s Brief in Opposition to De-

fendant’s Motion for Summary Judgment

Affidavit of Ralph O. Jones

Plaintiff’s Motion to File Instanter Supple-

mental Brief in Opposition to J. Controls’

Motion for Summary Judgment and Affidavit

Proposed Supplemental Brief as above

DATE NR ENTRY

09/18/86

10/02/86

01/21/88

02/18/88

02/24/88

09/26/89

Proposed Affidavit of Michael Silverstein,

M.D.

Defendant Johnson Control’s Reply Brief in

Support of Motion for Summary Judgment

Defendant’s Supplemental Reply Brief in

Support of Motion for Summary Judgment

Third Affidavit of Stanley S. Jaspan

Decision & Order; Grants Defendant’s Mo-

tion for Summary Judgment

Judgment Entered that the Fetal Protection

Policy at Issue Does Not Violate Title VII,

and Defendant Johnson Controls’ Motion for

Summary Judgment is Granted

Plaintiff’s Notice of Appeal to the Seventh

Circuit Court of Appeals from Judgment

Entered 1/21/88

Order; Amending Opinion of 1/21/88

Opinion and Judgment of the United States

Court of Appeals for the Seventh Circuit

[DISTRICT COURT OPINION AS AMENDED]

UNITED STATES DISTRICT COURT

E.D. WISCONSIN

No. 84-C-472

INTERNATIONAL UNION, UNITED AUTOMOBILE AEROSPACE

AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,

UAW, et al., : Plaintiffs,

JOHNSON CONTROLS, INC.,

Defendant.

Jan. 21, 1988

As Amended Feb. 24, 1988

Miriam Horwitz, Zubrensky, Padden, Graf & Maloney,

Milwaukee, Wis., for plaintiffs.

Stanley S. Jaspan, Foley & Lardner, Milwaukee, Wis.,

for defendant.

DECISION AND ORDER

WARREN, Chief Judge.

This case presents the issue of whether a fetal protec-

tion policy which prohibits women who are capable of

bearing children from working in jobs where there is a

likelihood that their blood lead ' levels will rise above 30

1A word frequentiy used by the experts is blood lead. Blood lead

is a measure of the amount of lead that is present in the circulation

where venous blood is drawn.

micrograms violates Title VII of the 1964 Civil Rights

Act. Defendant, Johnson Controls, Inc. (“Johnson Con-

trols”) has filed a motion for summary judgment. After

carefully reviewing all the submissions from both parties

and the law on this issue, it is the Court’s conclusion that

the fetal protection policy at issue does not violate Title

VII, and the defendant’s motion for summary judgment

is hereby GRANTED.

I. LEackground Facts

Defendant has seventeen plants in its battery division.

Fourteen of these plants manufacture batteries. Lead is

the principal active material used in batteries. It is the

main ingredient in the paste which forms the plates of

the batteries, and it forms the structure for all the con-

ductive elements in the battery for transmitting current.

On February 25, 1985, as a result of a stipulation be-

tween the parties, the Court certified the following class:

all past, present and future production and maintenance

employees employed in bargaining units represented by

the International Union, United Automobile, Aerospace

and Agricultural Implement Workers of America, UAW,

and/or one of its Local Unions at Defendant’s Battery

Division plants located in Garland, Texas; Holland, Ohio:

Fullerton, California; Owosso, Michigan; Louisville, Ken-

tucky; Texarkana, Arkansas; Bennington, Vermont:

Middeltown, Delaware; and Atlanta, Georgia, who have

been and continue to be affected by Defendant’s Fetal

Protection Policy implemented in 1982.

The policy at issue was implemented in 1982 by the

defendant. The policy excludes women who are capable

of bearing children from working in jobs where their

blood lead level will rise above 30 micrograms. Women

are presumed capable of bearing children until they med-

ically prove contrary. Women who are required to trans-

fer out of jobs because of the policy are paid medical

removal protection benefits to compensate for lost earn-

Sed ee

ings. Women who are in positions where their blood lead

levels do not rise to 30 micrograms are prohibited from

transferring into positions where their blood lead levels

will rise above 30 micrograms. :

The plaintiffs allege that this policy discriminates

against both women and men. Based on this policy plain-

tiffs allege that there is sex discrimination in recruit-

ment and hiring, job assignments, wages, promotions and

transfers within the bargaining unit, seniority, overtime,

layoff and recall, demotions, on-the-job training, mater-

nity policies, on-the-job harassment, fringe benefits, and

health and safety conditions.

There is no dispute between the parties regarding the

fact that excessive exposure to lead can result in signifi-

cant harm to persons. There is a dispute, however, on

the issues of whether there is a significant risk of harm

to the fetus from lead exposure and whether that risk is

substantially confined to the offspring of females, as op-

posed to male workers. There is also a dispute as to

whether a fetus is more sensitive to lead than a post-

natal child. Depositions and affidavits of experts have

been submitted by plaintiffs and defendant, and the

Court has closely reviewed those documents. Following

is a brief summary of the testimony cf the experts.

A. Expert Opinions

Dr. Anthony R. Scialli is a practicing physician and

director of the Reproductive Toxicology Center. The

Center serves as a source of information on the potential

reproductive toxicity of environmental and physical

agents, Dr. Scialli holds the opinion that because a fetus

undergoes extremely rapid development of the internal

nervous system during gestation, the fetus is even more

sensitive to the effects of lead than a young child. Dr.

Scialli further stated that damage of the central nervous

system includes intellectual and motor retardation, be-

havioral abnormalities and deficiencies in learning abil-

ities which may be permanent. According to the affidavit,

Dr. Scialli is aware of no studies which show that male

blood lead levels of up to 50 micrograms results in any

abnormality of offspring, and further that lead does not

cause any change in the sperm that would be transmitted

to offspring and result in abnormality in the offspring.

Finally, the affidavit states that a man with a blood lead

level of 50 micrograms would not have an increased risk

of fathering a child with abnormalities.

Dr. J. Julian Chisolm who is a pediatrician and direc-

tor of the Lead Program at the John F. Kennedy Insti-

tute set forth the following opinion:

During pregnancy the lead in the mother’s blood

transfers across the placenta to the fetal circula-

tion. The concentration of lead in the fetal tissue

increases rapidly during the last trimester of preg-

nancy. At birth, the fetus generally has the same

blood lead level as the mother. However, the fetus

is medically judged to be at least as sensitive, and,

indeed, is pre sly even more sensitive to lead than

the young cr .. This is particularly true during the

latter part of the gestation period when the central

nervous system of the fetus is developing very rap-

idly and is extremely suscep'’ible to the toxic effects

of lead. Medical studies released in the last year or

two out of Boston, Cincinnati and Port Pirie, South

Australia suggest that exposure to the fetus of blood

lead levels as low as 10 micrograms presents [a]

grave risk of permanent harm to the central nerv-

ous system of the fetus. The risk of harm to the

fetus increases proportionately with the increase of

blood lead levels over 10 micrograms. Such harm in-

cludes stillbirth, reduced birth weight and gesta-

tional age, and retarded cognitive development which

may result in learning deficiencies and behavioral

disorders.

There is no medical evidence that lead exposure

to the adult, male or female, has any adverse effect

ee ee ee Oe a ee ee ee eee ee)

on the offspring. Rather, the available medical evi-

dence establishes that it is the exposure directly to

the fetus, through the pregnant woman, which

causes harm to the offspring.

Likewise, the affidavit of Paul B. Hammon, Professor

of Environmental Health at the University of Cincinnati

and director of a study currently being conducted in Cin-

cinnati of the effects of lead exposure on children, stated

that he was unaware of any human studies which con-

clude that blood lead levels of up to, and even exceeding,

50 micrograms in the adult male will cause any demon-

strable effect on the development of the fetus.

The deposition of Seymore Legator, professor and di-

rector of the division of environmental toxicology was

submitted wherein Professor Legator states that there is

“no question that lead is hazardous to the fetus by em-

bryo exposure” and that children are very sensitive to

lead. Professor Legator also stated that lead poses a

threat to both men and women, but it is still unknown

about male sensitivity, but he recognized that there is a

problem and that lead probably causes a genetic lesion

during spermatogenesis.

Another physician, M. Donal Whortin, is the Senior

Occupational Physician/Epidemologist for a company

that conducts research in the areas of occupational and

environmental health and is a primary medical consul-

tant for a number of companies. Dr. Whortin holds the

opinion that “the current OSHA lead standard of 50

micrograms per decileter of whole blood should generally

protect adults of either sex from significant adverse ef-

fects in the various adult systems.” Dr. Whortin was

a coinvestigator in a 1981 study which compared the

quality of the semen of lead exposed workers with non-

exposed males. The study discovered no changes in the

semen quality of lead exposed workers. Nevertheless, Dr.

Whortin stated that recent medical studies have shown

that a fetus’ central nervous system can be injured by

exposure to blood lead levels of 10 micrograms. Dr.

Whortin concluded that the central nervous system of the

fetus and not the reproduction systems of the male or

female worker is at greatest risk.

The testimony of Charles W. Fishburn was also sub-

mitted for purposes of the motion. Dr. Fishburn is a

physician and Assistant Clinical Professor at the Univer-

sity of Wisconsin. Dr. Fishburn is certified in occupa-

tional medicine. Occupational medicine involves the study

of the relationships of injury and disease caused by chem-

ical exposures in occupations. He states that children

are particularly sensitive to lead because children do not

have a barrier between the brain and the blood. Further,

children develop a barrier around the age of five. Until

the barrier is developed, if children ingest lead, they can

be poisoned immediately. The child also can go into con-

vulsions resulting in damage to the central nervous

system.

In a fetus, the central nervous system is one of the

first systems that develops and the first to be affected.

A fetus gets its blood from the mother and there is no

way, according to Dr. Fishburn, to protect a fetus when

it is overexposed to lead. Dr. Fishburn states that dam-

age to the central nervous system is apparently perma-

nent.

Michael Silverstein, an Occupational-Health Physician

in the Health and Safety Department of the United

Auto Workers, is of the opinion that there is no evidence

that reproductive risks are different for men and women

at equal blood-levels. Furthermore, Dr. Silverstein states

that “the toxic effects of lead exposure on human adults

is similar and equivalent in impact to that observed in

children at equivalent. exposure levels.” Dr. Silverstein

discussed one study published in 1972, Hildebrand, where

it was found that male rats with blood levels between 14

and 26 resulted in impotence and a decrease in sperm

mobility. Dr. Silverstein stated that it could be specu-

—

lated that an abnormal sperm could carry damaged

genetic material which could result in damaged offspring

or functional infertility.

Assistant Professor of Occupational Medicine at the

University of Michigan School of Public Health, Kelly

Ann Brix, states the conclusion based upon a review

article, that there is a clear effect of lead upon the male

reproductive tract in mammals.

Ellen Silbergeld, a toxicologist and a senior scientist

for the Environmental Defense Fund, holds the opinion

that all persons should not be exposed to lead levels

above 12 micrograms.? Silbergeld also states that there

is no evidence that a fetus is more sensitive than a post-

natal child. Further, in animals, Silbergeld states, that

high doses of lead in the first trimester can cause spon-

taneous abortion of an embryo. Silbergeld also stated

that “a woman may be exposed to lead early in preg-

nancy and deficits noted in the child after birth, but those

deficits might have been associated with the on-going

exposure which occurred in the late stages of pregnancy

. .. [because] for all purposes there is a continuing ex-

posure to lead even after removal from sources of

lead. . . .” Silbergeld estimated that if a person, after

exposure to lead is placed in a lead-free environment,

the turnover of lead is about 100 days, “so within a year

or so there would be a reduction_in lead.” This time esti-

mate according to Silbergeld is accurate in a lead-free

environment, but in the absence of a lead-free environ-

ment, there is a continuing exposure to lead.

II. Prior Law

There are essentially two types of Title VII cases:

Disparate treatment and disparate impact. Disparate

treatment occurs when an employee has been treated less

? Silbergeld also states that “I think the blood leads that are called

for monitoring are much too high, and I also don’t understand why

it applies only to women.”

favorably because of sex. There are two types of dispar-

ate treatment cases: facial and pretextual. “Facial dis-

crimination occurs when an employer adopts a policy

that explicitly treats some employees differently from

others on the basis of race, religion, national origin, or

gender (pregnancy).” Hayes v. Shelby Memorial Hosp.,

726 F.2d 1543, 1547 (11th Cir.), reh’g denied, 732 F.2d

944 (11th Cir.1984). The only defense to a charge of

facial discrimination is a bona fide occupational qualifi-

cation (BFOQ). A second theory under disparate treat-

ment occurs when the employer adopts a facially neutral

policy, but which is a pretext for discrimination. A dis-

parate impact suit exists when although a policy is neu-

tral, it has a disparate impact on a protected class. Dis-

criminatory motive is not required, and the defense to

an allegation of disparate impact is business necessity.

Only three jurisdictions have reviewed Title VII ac-

tions involving the health of the fetus.* The Fourth

Circuit Court of Appeals was the first circuit court to

address the fetal vulnerability program in Wright v.

Olin Corp., 697 F.2d 1172, 1177 (4th Cir.1982). Olin

Corporation instituted a fetal vulnerability policy which

restricted fertile females from jobs which required con-

% Despite a lack of case law on this issue, many legal writers have

addressed the issue. See generally, Comment, Maternal Liability:

Courts Strive to Keep Doors Open to Fetal Protection—But Can

They Succeed?, 20 J. Marshall L.Rev. 747 (1987) ; Comment, Gender

Specific Regulations in the Chemical Workplace, 27 Santa Clara

L.Rev. 353 (1987); Buss, Getting Beyond Discrimination: A Regu-

latory Solution to the Problem of Fetal Hazards in the Workplace,

95 Yale L.J. 577 (1986); Timke, Exploring the Limits of Legal

Duty: A Union’s Responsibilities with Respect to Fetal Protection

Policies, 23 Harv.J. on Legis. 159 (1986); Comment, Fetal Protec-

tion Programs under Title VII—Rebutting the Procreation Pre-

sumption, 46 U.Pitt.L:Rev. 757 (1985); Note, Wright v. Olin Corp.:

Title VII and the Exclusion of Women from the Fetally Toxic Work-

place, 62 N.C.L.Rev. 1067 (1984); Williams, Firing the Woman to

Protect the Fetus: The Reconciliation of Fetal Protection with Em-

ployment Opportunity Goals under Title VII, 69 Geo.L.J. 641 (1981).

tact with toxic chemicals. The Fourth Circuit determined

that the disparate treatment analysis was inappropriate

for this particular case because under disparate treat-

ment, the plaintiff must show that the employer intended

to treat the class less favorable. The Wright court stated:

Here the claim is that the intention to “treat less

favorably” is manifest in the very nature of the pro-

gram and the factual defense is not truly aimed at

rebutting that indisputable fact but at justifying

it on the basis that the purpose behind it was be-

nign in relation to the claimant’s sex.

697 F.2d at 1185 n. 20. The court stated that the dis-

parate impact theory with the business necessity defense

was appropriate. The court held that the fetal protection

policy establishes a prima facie case of discrimination.

The court went on to find, however, that a business neces-

sity defense existed in this situation by analogizing the

fetus to invitees and licensees who are legitimately on

the business premises. The court stated that “the safety

of unborn children of workers would seem no less a mat-

ter of legitimate business concern than the safety of the

traditional business licensee or invitee upon the employ-

er’s premises.” 697 F.2d at 1189.

The Fifth Circuit was the next circuit to address the

issue of fetal protection in Zuniga v. Kleberg County

Hospital, 692 F.2d 986 (5th Cir.1982). In Zuniga, a

female x-ray technician was terminated from employ-

ment because of the effects of exposure of the fetus to

x-ray radiation and the concern of future liability of the

hospital to the child. The Fifth Circuit found that the

plaintiff rebutted the business necessity defense by show-

ing that the hospital failed to utilize less discriminatory

means. Id. at 992.

The next circuit to address this issue was the Eleventh

Circuit in Hayes v. Shelby Memorial Hospital, 726 F.2d

1543 (11th Cir.), reh’g denied, 732 F.2d 944 (11th Cir.

1984). Hayes also involved a plaintiff who was a female

x-ray technician and who was fired because she was

pregnant. The Eleventh Circuit reviewed the case under

both the disparate treatment analysis and the disparate

impact analysis. Under the disparate treatment analysis,

the court did not find that an analysis of pretextual dis-

crimination was appropriate because the plaintiff was

fired because of her pregnancy. A BFOQ defense could

not be established because there was no evidence that

plaintiff’s pregnancy would interfere with her ability to

perform her job and the hospital failed to provide evi-

dence that the level of radiation to which the plaintiff

would be exposed posed an unreasonable risk of harm to

the fetus.*

The Court, however, found that a facial discrimination

analysis was proper. A presumption of facial discrim-

ination applies to women. “That presumption may be

rebutted, however, if the employer can show that although

its policy applies only to women, the policy is neutral in

the sense that it effectively and equally protects the off-

spring of all employees.” Hayes, 726 F.2d at 1548.

The Hayes court went on to state that even if the

employer proves that the policy is justified in a scientific

basis and is not required to protect the offspring of male

employees, the policy still has a disproportionate impact

on women; only women are excluded from the jobs. The

Hayes court stated that the plaintiff established an au-

* The Hayes court further noted:

Because the Hospital failed to prove its policy was necessary

we need not reach the factual issue of whether x-ray radiation

affects the offspring of employees only through pregnant women,

or whether similar effects can occur from exposure to males.

Documents cited by amici do suggest that radiation induced

mutations can pass to offspring from male sperm, but neither

party developed on this issue at trial.

Hayes v. Shelby Memorial Hosp., 726 F.2d 1543, 1552 (11th Cir.),

reh’g denied, 732 F.2d 944 (11th Cir.1984). The parties in this

case have, however, submitted affidavits and depositions regarding

the effects males exposed to lead and their offspring.

pe ind eT eee ki Senki, Keetiicns- a

tomatic case of disparate impact for which the defendant

must raise a business necessity defense.

The business necessity defense is generally related to

job performance. The Hayes court recognized that fetal

protection does not have any relation to job performance.

The court, however, did not find that the business neces-

sity defense does not apply, but rather found that “the

defense in a fetal protection case is justified by a genuine

desire to promote the health of employee offspring. .. .”

Id. at 1552-53 n. 15. The court went on to further hold

that the business necessity defense “automatically” ap-

plies because at the point where the court undertakes

a disparate impact analysis, the employer “has already

proved—to overcome the presumption of facial discrim-

ination—that its policy is justified on a scientific basis

and addresses a harm that does not affect men.” Id. at

1553. If a business necessity defense exists, the burden

then shifts to the plaintiff to show that there are no

“acceptable alternative policies that would better accom-

plish the purposes of promoting fetal health, or that

would accomplish the purpose with a less adverse impact

on one sex.” Jd. In brief three elements were set forth

by the Wright court for reviewing a fetal protection

policy:

(1) that a substantial risk of harm exists;

(2) that the risk is borne only by members of one

sex; and

(3) that the employee fails to show that there are

acceptable alternative policies that would have

a lesser impact on the affected sex.

Id. at 1554. If these three elements are met, the policy

does not violate Title VII.

III. Analysis

Rule 56(c) of the Federal Rules of Civil Procedure

provides that summary judgment shall be granted “if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

as a matter of law.” A factual dispute will not preclude

summary judgment unless the fact is “outcome determi-

native according to the governing law.” Reardon v.

Wroan, 811 F.2d 1025, 1027 (7th Cir.1987).

A. Disparate Treatment

Reviewing this case under a disparate treatment an-

alysis results in the conclusion that the plaintiffs have

established a prima facie case of discrimination because

the fetal protection policy excludes women from positions

which men are not excluded from. The Hayes court

stated that there is a “presumption that if the employer’s

policy by its terms applies only to women, then the policy

is facially discriminatory.” 726 F.2d at 1548. This pre-

sumption is rebutted by demonstrating that there are

“significant risks of harm to the unborn children of

women workers from their exposure during pregnancy to

toxic hazards in the workplaze make necessary, for the

safety of the unborn children, that fertile women work-

ers though not men workers, be appropriately restricted

from exposure to those hazards and that its program of

restriction is effective for the purpose.” Wright, 697

F.2d at 1199; Hayes, 726 F.2d at 1548.

In the present case, there is a disagreement among the

experts regarding the effect of lead on the fetus and the

effect of lead on male and female reproduction. This dis-

pute, however, is not outcome determinative. The Fourth

Circuit stated:

To establish the requisite degree and cast of the

risk of harm, it is not necessary to prove the exist-

ence of a general consensus on the points within the

qualified scientific community. If suffices to show

that within that community there is so considerable

a body of opinion that significant risk exists, and

that it is substantially confined to women workers,

that an informed employer could not responsibly

fail to act on the assumption that this opinion might

be the accurate one.

The expert opinion in this case demonstrates that there

is a considerable body of opinion which holds that lead is

hazardous to the fetus through embryo exposure, and a

fetus that is exposed to lead carries the significant risk

that the central nervous system will be damaged. Further,

a significant opinion exists which holds that the fetus

cannot be protected when it is overexposed to lead from

the mother’s blood. Although plaintiffs state that today

“reproduction is now largely discretionary,” Dr. Ghisolm

stated that many pregnancies are unplanned. It is very

likely that a women could be pregnant without being

aware of it. If this woman has a blood lead level of

above 10 micrograms, her child could be born with ab-

normalities even if, after she discovers that she is preg-

nant, she removes herself from the lead environment be-

cause the fetus has been exposed to lead during early

development when the central nervous system was de-

veloping. Also, lead remains in the body for a significant

period of time. Furthermore, lead builds up in the blood,

soft tissues, and bones. If the lead leaves the blood and

soft tissues, lead still remains in the bones; it takes even

longer for the lead to leave the bones. According to the

experts, it takes about two or three times as long for the

blood leads to decrease as it did for such blood levels to

increase.

Further, a fetus that has been exposed to lead may be

stillborn. The fetus may have a reduced birth weight

and festational age, and retarded cognitive development

which may result in learning deficiencies and behavioral

disorders. This is a significant and unreasonable risk of

harm to the fetus. The fetal protection policy is neces-

sary. The employer has carried its burden of “showing

that the body of opinion believing that significant risk

exists is so considerable ‘that an informed employer could

not responsibly fail to act on the assumption that this

opinion might be the accurate one.’” Wright, 697 F.2d

at 1191.

The next step to consider is whether the hazard does

not apply to the offspring of male employees. In Hayes,

the court stated, “[i]n those instances in which scientific

evidence points to a hazard to women, but no scientific

evidence exists regarding men, an employer may be al-

lowed to adopt a suitable policy aimed only at women.”

726 F.2d at 1549.

Expert opinion has been provided which holds that lead

also affects the reproductive abilities of men and women.

Some experts hold that these effects are as great as the

effects of exposure of the fetus. Although the Court be-

lieves that men, women, and fetuses should be protected

from lead exposure, there is expert opinion that fetuses

are subject to a greater risk because the fetuses central

nervous system is developing, and further, a fetus could

be exposed to lead without the mother’s knowledge. One

legal writer has stated that “an employer may be justi-

fied in excluding all women of childbearing capacity from

working with compounds that cause reproductive injury

to the female worker prior to her knowledge of preg-

nancy.” Comment, Gender Specific Regulations in the -

Chemical Workplace, 27 Santa Clara L.Rev. 358, 370

(1987). Although adults of both sexes may be subject

to equivalent susceptibility of reproduction hazards, a

great body of experts are of the opinion that the fetus is

more vulnerable to levels of lead that would not affect

adults. The Court simply cannot overlook this possibility

of severe harm only to the fetus. As a concern for society

and future generations this Court must uphold the fetal

protection policy. The fetus deserves special protection

from lead. If women always knew when they were going

to become pregnant, the mother could remove herself

from the lead environment; this predictability does not

always occur with accuracy. “Unlike abortion, in which

a woman makes a knowing decision to end fetal life, work-

place hazards may harm a worker’s reproductive system

on unborn offspring without his or her knowledge or

consent.” Timko, Exploring the Limits of Legal Duty: A

Union’s Responsibilities With Respect to Fetal Protection

Policies, 23 Harv.J. on Legis. 159, 167 (1986). Because

of the fetuses possibility of unknown existence to the

mother and the severe risk of harm that may occur if

exposed to lead, the fetal protection policy is not facially

discriminatory.’ Further, plaintiffs have failed to estab-

lish that there is an acceptable alternative policy which

would protect the fetus. Perhaps with the improved de-

velopment of pregnancy testing, an alternative may de-

velop, but even if a pregnant woman is removed from

lead exposure once she is aware of the pregnancy, the

lead level does not decrease as quickly as it built up; lead

remains in the body for some time. Thus, the fetus would

be exposed to lead even if the mother is removed from

the lead environment.

Additionally, based upon the affidavits submitted, it

is apparent that the company is doing all that it can to

reduce lead exposure levels to safe levels. Since 1978,

the defendant has spent approximately 15 million dollars

on environmental engineering controls in its Battery Di-

vision Plants. Although plaintiffs state that “in the opin-

ion of Toxicologist Ellen Silbergeld, the technology exists

to reduce blood lead levels below 15 micrograms,” Ms.

5 Because this Court has determined that the lead fetal protection

policy is not facially discriminatory, this Court does not have to

undertake a bona fide occupational qualification’s (BFOQ) analysis.

“Under traditional analysis, the BFOQ defense is available only

when the employer can show that the excluded class is unable to

perform the duties that constitute the essence of the job, duties that

Title VII defines as ‘necessary to the normal operation of the par-

ticular business or enterprise.’” Hayes, 726 F.2d at 1549. Although

not required to address, this Court merely notes that an employee’s

job performance would not be affected by pregnancy.

Silbergeld’s deposition transcript reveals that she is not

aware that there is technology which exists that would

reduce blood lead levels at Johnson Controls to 12 micro-

grams. Plaintiffs have failed to demonstrate that accept-

able alternative policies exist.

B. Disparate Impact

Although the fetal protection policy is facially neutral,

it has a disproportionate impact on women; thus, a

prima facie case of disparate impact exists. The em-

ployer’s only defense in this situation is a business neces-

sity defense, but “[o]ne problem with business necessity

as defined under traditional Title VII analysis, but ap-

plied in the context of an émployer’s fetal protection pro-

gram, is the requirement that the employer’s policy be

related to job performance because fetal protection does

not, in a strict sense, have anything to do with job per-

formance.” Hayes, 726 F.2d at 1552. The Hayes court

expanded the business necessity defense to cover the fetal

protection case because “the defense in a fetal protection

case is justified by a genuine desire to promote the health

of employee offspring. . . .” Id. at 1553. This Court

agrees. There is a business necessity to protect fetuses.

The fetus, from exposure to lead, faces a substantial risk

of harm, and this exposure exists only for pregnant

women. Men simply cannot expose a fetus to lead in the

Same way women can. The Wright court analogized fe-

tuses to licensees and invitees, and stated that “[c]er-

tainly the safety of unborn children of workers would

seem no less a matter of legitimate business concern than

the safety of the traditional business licensee or invitee

upon an employer’s premises.” 697 F.2d at 1189. In

view of the fact that a significant risk exists for fetuses

exposed to lead, the fetuses safety cannot be ignored. A

business would not expose its customers to lead. Fur-

thermore, although not of primary importance, a busi-

ness should be able to protect itself from future lawsuits

which may arise because a child was prenatally exposed

to lead. Thus, the business necessity defense applies to

a lead fetal protection policy. There is a general societal

interest in protecting the health of fetuses and children.

C. Toxic Substance Control Act (TSCA)

Plaintiffs argue that although there is a societal inter-

est in fetal safety, the obligation of protecting society’s

interest has been delegated to the Environmental Pro-

tection Agency in the TSCA. The TSCA requires pro-

ducers of chemicals to report to the EPA information

about substances which pose a substantial risk. The EPA

is required to take regulatory action within 180 days

after receiving information that a substantial risk may

exist. If the EPA determines that a substantial risk

exists, the EPA can regulate the substance. One com-

mentator has criticized the effectiveness of the Act:

Despite its broad scope, TSCA’s usefuless in deal-

ing with fetal toxins, teratogens, and mutagens has

been limited. The EPA has substantial discretion

under the statute, and the agency has tended to

exercise this discretion to avoid active regulation.

The EPA has announced that it intends to regulate

at most two or three substances per year, with rele-

vant studies taking up to two years per substance

to prepare. The Office of Management and Budget

under the Reagan administration has been relentless

in criticizing the EPA’s modest efforts to regulate

dangerous chemicals. Consequently, fetal toxins,

mutagens, and teratogens have escaped regulatory

review.

When the EPA does examine a chemical, it may

consider the availability of substitutes and the eco-

nomic consequences of regulation before making a

pre-regulation determination that the chemical noses

an “unreasonable risk.” Furthermore, the promul-

gation of regulations involves consideration not only

of their economic consequences but also of the avail-

able level of technology. A consideration of both

these factors would probably lead to an acceptance

of hazards that may not pose significant risks to

employees but do pose grave risks to their unborn

children.

Timko, supra, p. 16, at 172. Based upon the foregoing,

the Court is not persuaded that the TSCA is protecting

fetuses from lead exposure. Furthermore, eliminating

the use of lead in battery production has not yet been

achieved. The use of !ead is still necessary at this point.

The company is, however, continuing to “study, develop,

and implement engineering controls to reduce the lead

exposure and blood lead levels of all employees.” Beau-

doin Affidavit, 17. Although no evidence has been pre-

sented to the Court demonstrating that the EPA has

reviewed the lead situation at issue here, it is unlikely

that the EPA would prevent the use of lead in the ab-

sence of a substitute. Further, because the TSCA is gen-

der neutral, it would fail to protect the fetus which faces

a significant 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 alternetive 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

are abnormalities too serious for this Court to find un-

important.

Defendant’s motion for summary judgment is hereby

GRANTED.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

Case No. 84-C-0472

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE

AND AGRICULTURAL IMPLEMENT WORKERS OF AMER-

IcA, UAW and its LocAL UNIONS Nos. 12, 119, 509,

754, 1283, 1348, 1871, 1516, and 1719, and Lois

SWEETMAN, LINDA BURDICK, ELSIE NASON, MARY Es-

TELLE SCHMITT, SHIRLEY JEAN MACKEY, MARY CRAIG,

ANNA MAY PENNEY and DONALD PENNEY, on behalf

of themselves and all others similarly situated,

“ Plaintiffs,

JOHNSON CONTROLS, INC.,

Defendant.

COMPLAINT

JURISDICTION

1. The jurisdiction of this Court is invoked pursuant

to 42 USC § 2000e-5(f), USC § 1337, and 28 USC

§$ 1343(3), (4). This action is brought to remedy dis-

crimination because of sex in terms, conditions and privi-

leges of employment, hiring and compensation in viola-

tion of federal statutes. The action arises under Title

VII of the Civil Rights Act of 1964, 42 USC § 2000e,

et. seq.

2. The unlawful practices alleged herein have been

promulgated by the defendant company, Johnson Con-

trols, Inc., throughout its Globe Battery Division.

3. Venue herein is proper, as defendant, Johnson Con-

trols, Inc., (hereinafter “the Company”) has its prin-

ciple place of business in Milwaukee, Wisconsin.

4. The plaintiffs, International Union, United Auto-

mobile, Aerospace and Agricultural Implement Workers

of America, UAW (hereinafter “UAW”), and its Local

Union Nos. 12, 119, 509, 754, 1283, 1343, 1371, 1516,

and 1719, duly filed a charge with the EEOC alleging

that the defendant company has, through the implemen-

tation of its so-called “Fetal Protection Policy,” discrimi-

nated on the basis of sex against all females in hiring,

wages, terms, conditions, and privileges of employment.

Further, the UAW alleged the Fetal Protection Policy

discriminates against male employees on the basis of sex

by failing to provide reproductive health hazard protec-

tions equal to those provided to female employees.

5. The plaintiffs, Lois Sweetman, Linda Burdick, Elsie

Nason, Mary Estelle Schmitt, Shirley Jean Mackey, Mary

Craig, Anna May Penney and Donald Penney each duly

filed charges against defendant Johnson Controls, Inc.,

with the Equal Employment Opportunity Commission

(hereinafter “EEOC’) complaining of the various acts

of sex discrimination committed by defendant pursuant

to its “Fetal Protection Policy.” The plaintiffs were each

notified by the EEOC, pursuant to Section 706(f) (1)

of the Civil Rights Act of 1964 as amended, 42 USC

§ 2000e-5(f)(1) of their right to institute suit. The

dates of notice of right-to-sue are as follows:

Name of Date Right-to-Sue

Plaintiff Letter Received

Lois Sweetman 1/12/84

Linda Lurdick 3/22/84

Elsie Nason 3/22/84

Mary Estelle Schmitt 3/22/84

Shirley Jean Mackey 3/22/84

Mary Craig — 3/22/84

Anna May Penney 3/22/84

Donald Penney 8/22/84

UAW 3/22/84

6. This Complaint has been filed within ninety (90)

days of the receipt of said notice of Right-To-Sue letters.

7. All conditions precedent to the institution of this

lawsuit have been met.

II.

PARTIES

8. The plaintiff, International Union, United Auto

mobile, Aerospace and Agricultural Implement Workers

of America, UAW, is a labor organization engaged in an

industry affecting commerce within the meaning of 42

USC § 2000(d), (e) and exists, in whole or in part, for

the purpose of dealing with the company concerning

grievances, labor disputes, wages, rates of pay, hours,

and other terms and conditions of employment. The

UAW has more than 25 members.

9. Together with its local unions, the UAW is the col-

lective bargaining representative of employees at the

following facilities owned and/or operated by defendant

Company: Owosso, Michigan, Plant and Clerical Units;

Louisville, Kentucky, Plant and Clerical Units; Benning-

ton, Vermont; Atlanta, Georgia; Dallas, Texas; Fuller-

ton, California; Texarkana, Arkansas; Middletown, Dela-

ware.

10. The UAW is a “person” within the meaning of

42 USC § 2000e-(a). The UAW’s heaquarters are lo-

cated at 8000 East Jefferson Avenue, Detroit, Michigan

48214.

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

1343, 1371, 1516 and 1719 each represent bargaining

units of Johnson Controls, Inc., Globe Battery Division

employees. Each local union is a labor organization en-

gaged in an industry affecting commerce within the

meaning of 42 USC § 2000e-(d) (e), and represents em-

ployees at the below-specified facilities for the purpose

of dealing with the defendant concerning wages, hours

and other terms and conditions of employment. Each

Local Union is a “person” within the meaning of U.S.

§ 2000e-(a).

(a) Local Union No. 12, at 2300 Ashland Avenue,

Toledo, Ohio 43620, represents production and mainten-

ance employees at the Company’s plant in Holland, Ohio.

(b) Local Union No. 119, at 3100 West Walnut—Apt.

233-11, Garland, Texas 75042, represents production and

ow workers at the Company’s plant in Garland,

exas.

Famona, California 91768, represents production and

maintenance workers at the Company’s plant in Pamona,

California.

(d) Local No. 754, at 1824 Corunna Avenue, Owosso,

Michigan 48867, represents production and maintenance

workers and office/clerical technical workers at the Com-

pany’s plant in Owosso, Michigan.

(e) Local Union No. 1283 at 5505 Walnut Way,

Louisville, Kentucky 40229, represents production and

maintenance workers at the Company’s plant in Louis-

ville, Kentucky.

(f) Local Union No. 1343, at 2412 Mamie, Texarkana,

Texas 75501, represents production and maintenance

workers at the Company’s plant in Texarkana, Arkansas.

(g) Local Union No. 1371, at Silk Road, Bennington,

Vermont 05201, represents production and maintenance

employees at the Company’s plant in Bennington, Ver-

mont.

(h) Local Union No. 1516, at P.O. Box 241, Middle-

town, Delaware 19709, represents production and main-

tenance employees at the Company’s plant in Middletown,

Delaware.

(i) Local Union No. 1791, at 459 Utoy Circle, At-

lanta, Georgia 30331, represents production and main-

tenance employees at the Company’s plant in Atlanta,

Georgia.

12. Plaintiffs Lois Sweetman, Linda Burdick, Elsie

Nason, Mary Esteile Schmitt, Shirley Jean Mackey,

Mary Craig, Anna May Penney and Donald Penney, are

all employees of the company.

13. Plaintiff Lois Sweetman is a citizen of the United

States and a resident of Golts, Maryland. She has been

employed at the Company’s Glcbe Battery Division Dela-

ware plant for approximately four and one-half years,

and is a member of UAW Local 1516.

14. Plaintiff Linda Burdick is a citizen of the United

States and a resident of Pound, Vermont. She has been

employed at the Company’s Globe Battery Division Ver-

mont plant for approximately four and one-half years

and is a member of UAW Local 1371.

15. Plaintiff Elsie Nason is a citizen of the United

‘ States and a resident of Hoosick Falls, New York. She

has been employed at the Company’s Globe Battery Di-

vision Vermont plant for approximately eleven and one-

half years, and is a member of UAW Local 1371.

16. Plaintiff Mary Estelle Schmitt is a citizen of the

United States and a resident of Cambridge, New York.

She has been employed at the Company’s Globe Battery

Division Vermont plant for approximately four and one-

half years, and is a member of UAW Local 1371.

17. Plaintiff Shirley Jean Mackey is a citizen of the

United States and a resident of Atlanta, Georgia. She

has been employed at the Company’s Globe Battery Divi-

sion Georgia plant for approximately five and one-half

years, and is a member of UAW Local 1791.

18. Plaintiff Mary Craig is a citizen of the United

States and a resident of Newark, Delaware. She has

——_-_- -

been employed at the Company’s Globe Battery Division

Delaware plant for approximately fourteen and one-half

years and is a member of UAW Local 1516.

19. Anna May Penney is a citizen of the United States

and a resident of Middletown, Delaware. She has been

employed at the Company’s Globe Battery Division Dela-

ware plant for approximately twelve and one-half years

and is a member of UAW Local 1516.

20. Donald Penney is a citizen of the United States

and a resident of Middietown, Delaware. He has been

employed at the Company’s Globe Battery Division Dela-

ware plant for approximately one and one-half years,

and is a member of UAW Local 1516.

21. Each of the individually named plaintiffs is a

member of a Johnson Controls, Inc., Globe Battery Di-

vision bargaining unit represented by the UAW, and one

of the UAW Local Union.

22. There have been collective bargaining agreements

in effect between the UAW and the defendant Company

at all times material to the instant suit.

23. The defendant Company, Johnson Controls, Inc.,

is, and has been at all times relevant herein an employer

within the meaning of Title VII of the Civil Rights Act

of 1964, (“Title VII”) as amended, 42 USC 2000e-(b)*

(g), and (h). At all times herein relevant, the Com-

pany has been and continues to be subject to the provi-

sions of Title VII. It is engaged in an industry affecting

commerce and manufactures and distributes betteries in

interstate commerce.

24. The Company is incorporated and exists under the

laws of the State of Delaware.

25. Defendant’s corporate headquarters are located at

5757 North Green Bay Avenue, Milwaukee, Wisconsin

53201.

Ill.

CLASS ACTION

W, its local unions, Lois Sweetman, Linda

patih, Bhie Nason, Mary Estelle Schmitt, Shirley

Jean Mackey, Mary Craig, Anna May Penney and _o8

ald Penney, sv individually and representatively on

half of a class of all employees similarly situated, -

suant to Rule 23(b) (2) of the Federal Rules of Civi

Procedure. The plaintiffs represent a class of all past,

present and future employees of the defendant Company

at any of its Globe Battery Division facilities, with two

sub-classes, one consisting of all past, present and future

female employees and others consisting of all past, pres-

ent and future male employees, who have been and con-

tinue to be or might be adversely affected by the prac-

tices complained of herein.

i i i for mainten-

27. This action meets the requirements

ance as a class action pursuant to Rule 23 ( a) and (b)

(1) and (2) of the Federal Rules of Civil Procedure.

28. The class and sub-classes represented are So nu-

merous that jcinder of all members is impracticable.

29. Upon information and belief, no other member of

the class has instituted a similar action.

30. The questions of law and fact presented by the

plaintiffs as hereafter set forth are common to the class.

31. Defendant maintains a single division-wide “Fetal

Protection Policy” which discriminates on its face and

as applied on the basis of sex.

32. The claims of the representative plaintiffs are

typical of the claims of the class.

33. The representative plaintiffs will fairly and ade-

quately protect the interests of the class.

34. The claims and interests of the plaintiffs do not

— with the interests of any other members of the

class.

35. The prosecution of separate actions by individual

members of the class will create a risk of inconsistent

or varying adjudications with respect to individual mem-

bers of the class which would establish incompatible

standards of conduct for the defendant Company.

36. The Company discriminates on the basis of sex in

hiring, wages, hours and terms of employment, through

the implementation and continuance of its division-wide

“Fetal Protection Policy.” Defendant Company has acted

or refused to act on grounds generally applicable to the

class, or the relevant sub-class, thereby making appro-

priate final injunctive relief and corresponding declara-

tory relief with respect to the class as a whole.

IV.

FACTS

37. On or after August 9, 1982, the Company pro-

pounded a “Fetal Protection Policy,” which it thereafter

announced to its Globe Battery Division plants and to

the unions representing workers at its Globe Battery

Division plants.

38. The “Fetal Protection Policy” requires the removal

from high lead exposure areas of all women capable of

reproducing and the implementation of lead exposure re-

duction procedures. Women are presumed capable of

childbearing until they medically prove the contrary.

39. Since August 9, 1982, the Company has begun

implementation of its “Fetal Protection Policy” at each of

its facilities. The policy remains in force at the Com-

pany’s facilities continuously to the present time.

40. The “Fetal Protection Policy” constitutes an overt

sex based classification which has an adverse impact on

Se me Rt ee

enn se sin aii aint needle sme

both female and male employees on the basis of gender.

On its face and as applied, the Company’s “Fetal Pro-

tection Policy” constitutes discriminatory treatment and

causes discriminatory effects on the basis of sex.

41. In particular, the “Fetal Protection Policy” dis-

criminates on the basis of sex as gefined by the Preg-

nancy Disability Act of 1978 amendme:.t to Title VII of

the Civil Rights Act of 1964, Section 701(k), and violates

Sections 703(a)(1) and (2) of Title VII.

42. Pursuant to its “Fetal Protection Policy,” the Com-

pany discriminates against both women and men on the

basis of sex. This sex discrimination includes but is not

limited to sex discriminatory treatment in:

a. recruitment and hiring;

b. job assignments;

c. wages;

d. promotions within the bargaining unit;

e. transfers within the bargaining unit;

seniority ;

overtime;

a I

layoff and recall;

i. demotions;

j. on-the-job training;

k. maternity policies;

1. on-the-job harassment ;

m. fringe benefits;

n. health and safety conditions.

43. Until recent years, the Company has discriminated

on the basis of sex in hiring. Consequently, the percent-

age of women workers is under 10% in each of its pro-

duction and maintenance bargaining units.

44. On information and belief, following the promul-

gation of the “Fetal Protection Policy” the Company

has stopped hiring “women of childbearing capability”

at all of its Globe Battery Division manufacturing

facilities.

45. The percentage of female employees at the Com-

pany’s production facilities has not increased since the

promulgation of the “Fetal Protection Policy.”

46. Pursuant to the “Fetal Protection Policy,” de-

fendant Company discriminates on the basis of sex in

making job assignments. Women of childbearing capabil--

Ity are discouraged from bidding under the collectively

bargained promotion and transfer system into jobs in

leaded areas.

47. If women do bid on lead exposure jobs, they are

denied the job and it is awarded to a male, contrary to

the seniority system, in violation of the collective bar-

gaining agreement.

48. The defendant Company discriminates against

women already holding jobs in leaded areas. They must

wear respirators while working, are transferred out of

jobs and are kept from returning to their jobs at lower

blood lead levels than similarly situated male workers.

49. Because female employees are excluded from many

of the jobs at defendant Company’s production facilities,

pursuant to the “Fetal Protection Policy,” they are denied

equal opportunity for promotion, overtime, transfer, and

on-the-job training. They are also subject to layoff and

recall outside the seniority system because they are not

allowed to exercise rights to positions in lead exposure

areas.

50. The Company has and continues to violate the

general duty clause of the Occupational Safety and

Health Act (OSHA), 29 U.S.C. § 654(a) (1), in failing

to provide a reproductively safe and healthy working en-

vironment for its female workers, rather than removing

them from the hazard.

o _<

51. The Company’s “Fetal Protection Policy” is in

non-compliance with the OSHA lead standard, 29 CFR

§ 1910.1025 et. seq.

52. The Company’s “Fetal Protection Policy” discrimi-

nates against male workers in that it denies them equally

clean, safe and free from hazard, terms and conditions of

employment compared to women. In particular, fertile

males are subjected to greater hazards to their reproduc-

tive health than are similarly-situated women. Male em-

ployees seeking to take precautionary steps to protect

their reproductive capabilities are treated less favorably

than similarly-situated women.

53. The Company’s “Fetal Protection Policy” discrimi-

nates against male workers in terms of placement, as-

signment, promotion, and/or transfer to low lead ex-

posure jobs because current women employees, under cer-

tain circumstances, are given preferential treatment re-

garding placement in low lead exposure jobs.

54. The Company has and continues to violate the gen-

eral duty clause of the Occupational Safety and Health

Act (OSHA), 29 U.S.C. § 654(a) (1), in failing to pro-

vide a reproductively safe and healthy working environ-

ment for its male employees.

55. The Company’s “Fetal Protection Policy” is in non-

compliance with the OSHA lead standard, 29 C.F.R.

§ 1910.1025 et. seq.

56. Named plaintiff Lois Sweetman was transferred

from her position as C.0.S. loader to a job in the Forma-

tion Section, pursuant to the “Fetal Protection Policy.”

57. If Ms. Sweetman had been a male she would not

have been transferred at so low a blood lead level.

58. Since then Ms. Sweetman’s blood lead level has de-

creased further still, but she has not been allowed to re-

turned to her job as a C.O.S. loader.

a eal

59. If Ms. Sweetman were a male worker she would

have been allowed to return to her job in a leaded area

when her blood lead level decreased.

60. Ms. Sweetman filed charges of discrimination

with both the Delaware Department of Labor, Anti-

Discrimination Section and the EEOC.

61. On January 24, 1984, the Delaware agency issued

a determination finding probable cause to believe that the

Company discriminated against Ms. Sweetman with re-

spect to her sex.

62. The Company informed named plaintiff Linda

Burdick that because of the “Fetal Protection Policy” she,

as a fertile female, would not be allowed to work in a

“leaded” area.

63. Ms. Burdick has been discouraged by the Company

from bidding on jobs in leaded areas.

64. If the Policy was not in effect, Ms. Burdick would

have bid on jobs in leaded areas as they became avail-

able.

65. Ms. Burdick has been denied job opportunities on

the basis of her sex.

66. Named plaintiff Elsie Nason was involuntarily

moved from her job of four years as a site terminal

welder because of the lead in the area.

67. Even though she is fifty years old and divorced,

Ms. Nason is considered “a woman of childbearing capa-

bility” by the Company, under its “Fetal Protection

Policy.”

68. If Ms. Nason were a male she would not have been

transferred.

69. Named plaintiff Mary Estelle Schmitt was denied

a job in Quality Control, which had just become avail-

able, and for which she had placed two advance bids in

1982.

~~ er

Oe es cae

ee Oe ee re

Ce ee Nal ee ee

es en

70. Ms. Schmitt was told by the Company that as a

fertile female she cannot work in a leaded area.

71. The job Ms. Schmitt sought was given to a male

with nearly one and one-half years less seniority.

72. Named plaintiff Shirley Jean Mackey was trans-

ferred from her job as a C.O.S. loader to a non-lead area

job, that of container punch operator.

73. If Ms. Mackey were a male she would not have

been transferred.

INJURIES

74. By its continuous and division-wide implementation

of the “Fetal Protection Policy,” the Company has dis-

criminated on the basis of sex in wages, terms, conditions

and benefits of employment in violation of Sections

703(a)(1) and (2) of Title VII, 42 U.S.C. § 2000e-

2(a)(1) and (2), and has inflicted and will continue to

inflict irreparable injury upon plaintiffs and the class

they represent.

75. As a result of the unlawful discriminatory acts of

the Company, all past, present and future female em-

ployees have been and continue to be subjected to ir-

reparable injury, including but not limited to the fol-

lowing:

a. They have been deprived of equal job security re-

garding jobs in leaded areas.

b. They have been denied equal opportunity for ad-

vancement and promotion regarding jobs in leaded areas.

c. They have been denied equal access to many higher

paying jobs because of being frozen out of jobs in leaded

areas.

d. They have been denied job satisfaction and training

equal to that of male workers in leaded ares.

e. They are subject to layoff in violation of the protec-

tions of the seniority system.

f. They are denied recall rights based on seniority.

g. They are subject to embarrassment and humiliation

because their private reproductive functions are made a

public issue, without their consent.

h. When permitted to work in leaded areas, female

employees must suffer the discomfort of wearing respira-

tors at lower blood lead levels than male workers.

i. When removed from jobs in leaded areas, female

employees often lose additional incentive pay.

j. The atmosphere of insecurity and hostility toward

women created by the Company, may well cause some to

quit, and others to be sterilized to escape the unlawful

policy.

k. By removing women rather than cleaning up the

workplace, the employer is violating their equal rights to

a reproductively safe work environment under the Occu-

pational Safety and Health Act, 29 U.S.C. § 654 (a) (1).

1. Female employees are harassed and intimidated by

the Company’s explicit declaration that women workers

are not wanted at the Company’s production facilities.

76. Female workers also suffer less earnings, including

incentive and overtime pay, as well as straight time rates,

because of the Company’s discriminatory policy.

77. As a result of the unlawful, discriminatory acts of

the Company, all past, present and future male employees

have been and continue to be subjected to irreparable in-

jury, including but not limited to the following:

a. Male employees are denied equally clean, safe and

free from hazard, terms and conditions of employment

compared to female employees;

Ot Se A ee

Ce a

ee Pa eter ia ey thy li lt

b. Male employees are not given the same preferential

placement treatment as female employees removed from

jobs in leaded areas pursuant to the “Fetal Protection

Policy.”

c. Male employees desiring to reproduce are subjected

to less favorable tveatment than similarly-situated fe

males and they are denied their right to a reproductively

safe and healthy workplace under OSHA.

78. All present and future employees have been and

continue to be subject to irreparable injury by the Com-

pany’s refusal to hire women, including but not limited

to being deprived of their right to an integrated work

environment.

79. The above unlawful employment practices have in-

flicted, and will continue to inflict injury on named plain-

tiffs Lois Sweetman, Linda Burdick, Elsie Nason, Mary

Estelle Schmitt, Shirley Jean Mackey, Mary Craig, Anna

May Penney and Donald Penney, including but not lim-

ited to the following:

a. Lois Sweetman’s loss of her job in a leaded area,

has deprived her of opportunity, income and job satisfac-

tion;

b. Linda Burdick was discouraged from bidding cn

jobs in leaded areas, suffering attendant loss of employ-

ment opportunity and income;

ce. Elsie Nason was removed from her job in a leaded

area, suffering loss of employment opportunity, income

and job satisfaction;

d. Mary Estelle Schmitt was denied the job she bid on

and was contractually entitled to, suffering loss of em-

ployment opportunity, income, job satisfaction and collec-

tively bargained for rights under the seniority system;

e. Shirley Jean Mackey’s removal from her job in a

leaded area has deprived her of employment opportunity,

income and job satisfaction;

f. The Company’s creation of an atmosphere of in-

security regarding the continued employment of fertile

females so severe that Mary Craig believed the only way

She would be guaranteed continued employment at the

Company was to be surgically sterilized, caused her to

undergo that medical procedure;

g. Anna May Penney has been kept on a respirator at

lower blood lead levels than a male, suffering loss of job

Satisfaction and discomfort ;

h. Donald Penney has been required to work in leaded

areas at a higher blood lead level than a female would be

allowed to work in, causing him a loss of equally clean,

Safe and free from hazard terms and conditions of em-

ployment.

80. By its “Fetal Protection Policy,” the defendant

Company has inflicted and will continue to inflict ir-

reparable injury on the UAW and its membership in

violation of Title VII unless this Court grants relief, in-

cluding but not limited to the following:

a. By refusing to hire women of childbearing capac-

ity following implementation of the “Fetal Protec-

tion Policy,” the Company has denied the union and

its members the benefits of female membership and

association, as well as their right to a sexually inte-

grated workforce;

b. By refusing to promote, and/or transfer women

into jobs in leaded areas, the Company has denied

the Union and its members the benefit of having fe-

male members in numerous positions on the job, and

their right to a sexually integrated workplace;

c. The Company, in refusing and failing to end sex

diserminatory policies and practices is subjecting the

UAW to the future possibility of lawsuits by female

employees or applicants for failure to correct said

unlawful employment practices, and is subjecting the

union’s current membership to the risk of remedies

for future discriminatees, which may impair, modify,

amend or otherwise adversely affect the collective

bargaining agreements and the employees’ rights

thereunder.

81. The plaintiffs and the class they represent are

suffering and will continue to suffer irreparable injury

if no relief is granted against defendant Company’s un-

lawful acts and practices as set forth herein.

82. A multiplicity of suits will result if the relief

herein requested is not afforded in a class action.

83. The plaintiffs have no plain, adequate remedy at

law to redress the wrongs alleged herein, and this suit is

the only means of securing relief.

VI.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs pray that this Court grant

the following:

A. That this Court advance this matter on the docket,

order a speedy hearing at the earliest practicable date,

and cause this case to be in every way expedited.

B. That this Court enter preliminary injunctive relief

enjoining the defendant Company, its officers, agents, em-

ployees, successors, assigns, and all persons in active con-

cert or participation with it, from engaging in the dis-

criminatory policies and practices complained of above,

pursuant to the Company’s “Fetal Protection Policy,” in-

cluding but not limited to the following:

1. Enter an order enjoining the Company from failing

or refusing to promote or transfer females into jobs in

leaded areas;

2. Enter an order enjoining the Company from remov-

ing females from jobs in leaded areas at blood lead levels

lower than that at which males are removed ;

3. Enter an order enjoining the Company from plac-

ing women workers on respirators at blood lead levels

which are lower than those at which men are placed on

respirators;

4. _Enter an order compelling the Company to non-

discriminatorily hire, assign, transfer and promote all

females, fertile or infertile;

5. Enter an order compelling the Company to non-

discriminatorily apply all terms and conditions of em-

ployment, including but not limited to those provided for

in the applicable collective bargaining agreements ;

6. Enter an order mandating that Lois Sweetman be

returned to her job as a C.O.S. loader with full back pay

and benefits;

7. Enter an order mandating that Linda Burdick be

afforded the opportunity to bid on jobs in leaded areas;

8. Enter an order mandating that Elsie Nason be re-

turned to her job as a site terminal welder with back pay

and benefits;

9. Enter an order mandating that Mary Estelle

eae oe to the next opening in her plant for

a Quality Control Auditor, with full back pay, front

and all benefits; es site

10. Enter an order mandating that Shirley Jean

Mackey be returned to her job as a C.O.S. loader with

back pay and benefits,

11. Enter an order mandating damages to Mary Craig

for mental distress, emotional pain and suffering and the

loss of her reproductive capabilities.

12. Enter an order mandating that Donald Penney be

provided the same equally clean, safe and free from haz-

ard terms and conditions of employment as would a fertile

female;

13. Enter an order mandating that Anna May Penney

be placed on a respirator only at the same blood lead

levels as would a male;

14. Enter an order prohibiting company layoffs and/

or recalls on the basis of the “Fetal Protection Policy,”

limiting layoffs and recalls to the contractually-mandated

date-of-hire seniority system;

15. Enter an order enjoining the Company from main-

taining or continuing the-policies and practices of deny-

ing, abridging, withholding, conditioning, and limiting or

otherwise interfering with the rights of plaintiffs and the

classes they represent as provide? under Title VII.

C. That this Court grant permanent injunctive relief

enjoining the defendant Company, its officers, agents, em-

ployees, successors, assigns, and all persons in active con-

cert or participation with it, from engaging in the dis-

criminatory practices complained of above, including but

not limited to the following:

1, Enter an order enjoining the Company from failing

or refusing to promote or transfer females into jobs in

leaded areas;

2. Enter an order enjoining the Company from remov-

ing females from jobs in leaded areas at blood lead levels

lower than that at which males are removed;

3. Enter an order enjoining the Company from plac-

ing women workers on respirators at blood lead levels

which are lower than those at which men are placed on

respirators;

4. Enter an order compelling the Company to non-

discriminatorily hire, assign, transfer and promote all

females, fertile or infertile;

5. Enter an order compelling the Company to non-

discriminatorily apply all terms and conditions of employ-

ment, including but not limited to those provided for in

the applicable collective bargaining agreements;

6. Enter an order mandating that Lois Sweetman be

returned to her job as a C.O.S. loader with full back pay

and benefits;

7. Enter an order that Linda Burdick be afforded the

opportunity to bid on jobs in leaded areas;

8. Enter an order mandating that Elsie Nason be re-

turned to her job as site terminal welder with back pay

and benefits;

9. Enter an order mandating that Mary Estelle

Schmitt be promoted to the next opening in her plant for

a Quality Control Auditor, with full back pay, front pay

and all benefits;

10. Enter an order mandating that Shirley Jean

Mackey be returned to her job as a C.O.S. loader with

back pay and benefits;

11. Enter an order mandating damages for Mary

Craig for mental distress, emotional pain and suffering

and the loss of her reproductive capabilities;

12. Enter an order mandating that Donald Penney be

provided the same equally clean, safe and free from haz-

ard terms and conditions of employment as would a fertile

female;

13. Enter an order mandating that Anna May Penney

be placed on a respirator only at the same blood lead

levels as would a male;

14. Enter an order prohibiting Company layoffs and/

or recalls on the basis of the ”Fetal Protection Policy,”

limiting layoffs and recalls to the contractually-mandated

date-of-hire seniority system.

15. Enter an order enjoining the Company from main-

taining or continuing the policies and practices of deny-

ing, abridging, withholding, conditioning, and limiting or

otherwise interfering with the rights of plaintiffs and the

classes they represent as provided under Title VII.

D. That this Court declare the aforesaid “Fetal Pro-

tection Policy” to be unlawful and in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e,

et. seq.

E. That this Court enter a judgment against the de-

fendant Company and in favor of each named plaintiff to

make them monetarily whole for lost past, present and

future pay and benefits each has suffered or will suffer

as a result of the Company’s unlawful employment prac-

tices.

F. That this Court enter a judgment against the de-

fendant Company requiring defendant to make whole

those persons adversely affected by the unlawful practices

described herein by providing appropriate monetary relief

with interest, in an amount to be proved at trial herein,

including but not limited to the differential pay and bene-

fits received by iuembers of the class on their present jobs

and the pay and benefits they would have received had

they not been unlawfully denied promotions or transfers

by the Company because of discrimination, pay lost due

to removal from jobs in leaded areas, pay lost due to dis-

criminatory layoffs, lost incentive or overtime pay, and

by restoring appropriate seniority and fringe benefit

credits to those unlawfully deprived of part or all of their

seniority rights.

G. That the Court grant any other affirmative relief

which may be necessary to place each of the individually-

named plaintiffs and every other member of the class

represented in the same position in which they would have

been but for the unlawful employment practices of de-

fendant Company, and to eradicate the effects of defend-

ant Company’s unlawful employment practices.

H. That the Court award the plaintiffs and the classes

represented, costs and attorn i

Penne ey fees, to be paid by the

I. That the Court grant such o

ther and furth i

as the Court may deem appropriate. - so

[Signatures Omitted in Printing]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

Civil Action No. 84-C-0472

(Caption Omitted in Printing)

ANSWER

NOW COMES Defendant, Johnson Controls, Inc., by

its attorneys, Stanley S. Jaspan, Renee L. Johnson and

Susan R. Maisa, and as and for its Answer to the Com-

plaint herein, admits, denies and alleges as follows:

1. With respect to Paragraph 1 of the Complaint. ad-

mits that Plainitffs are attempting to invoke the jurisdic-

tion of this Court pursuant to certain federal statutes;

denies that jurisdiction may be properly invoked in this

instance pursuant to those statutes and denies each and

every other allegation contained in Paragraph 1 of the

Complaint.

2. Denies each and every allegation contained in Para-

graph 2 of the Complaint.

8. Admits the allegations contained in Paragraph 3 of

the Complaint.

4. With respect to Paragraph 4 of the Complaint, ad-

mits that Plaintiffs International Union, United Auto-

mobile, Aerospace and Agricultural Implement Workers

of America, UAW, and its Local Union Nos. 12, 119, 509,

754, 1283, 1371 and 1516 filed a charge of discrimination

with the EEOC alleging that Defendant has discrimi-

nated on the basis of sex through its fetal protection

policy; denies that Defendant has committed any unlaw-

ful discrimination and denies each and every other allega-

tion contained in Paragraph 4 of the Complaint.

5. Admits the allegations contained in P

( legat aragraph 5 of

the Complaint, alleging in this respect that Defendant has

committed no acts of unlawful discrimination.

6. Admits the allegations contained i ,

as tuameee ned in Paragraph 6 of

7. With respect to Paragraph 7 of the Complaint, de

nies the allegations contained therein at least with re

spect to some of the named Plaintiffs.

8. With respect to Paragraph 8 of the Complaint, al-

leges that the proper statutory references are 42 U.S.C

§ 20006e ( d) and (e); admits the other allegations con-

tained in Paragraph 8 of the Complaint.

9. Admits the allegations contained i

in Paragraph 9 of

the Complaint, alleging in this respect that the Texas

facility is located in Garland and not in Dallas.

10. Admits the allegations contained i

of the Complaint. oT eee

11. With respect to Paragraph 11 of th i

denies that UAW Local Union No. 1719 ie a

bargaining units of Defendant: alleges that the pro ;

statutory references are 42 U.S.C. $ 2000e(d) and (e)

and 42 U.S.C. § 2000e(a); alleges that the California

facility is located in Fullerton and not in Pamona: alleges

on information and belief that the address of Local Union

No. 119 is 2922 Hillsdale Lane, Garland. Texas 75042

that the address of Local Union No. 509 is 7931 Seville

Avenue, Huntington Park, California 90255, that the ad-

dress of Local Union No. 1283 is 3421 Chateau Lane

Louisville, Kentucky 40219, and that the address of Local

Union No. 1348 is 2414 Mamie, Texarkana, Texas 75501:

admits the other allegations contai i

rare ory eg ontained in Paragraph 11 of

12. With respect to Paragra

: ect ph 12 of the C i

admits that Plaintiffs Lois Sweetman, Linda ey

Elsie Nason, Mary Estelle Schmitt, Shirley Jean Mackey

and Mary Craig are all employees of Defendant; denies

each and every other allegation contained in Paragraph

12 of the Complaint.

18. Admits the allegations contained in Paragraph 13

of the Complaint.

14. With respect to Paragraph 14 of the Complaint,

alleges that Plaintiff Linda Burdick is a resident of Ben-

nington, Vermont, has been employed by Defendant since

September 1978, and is currently on a medical leave of

absence due to pregnancy; admits the other allegations

contained in Paragraph 14 of the Complaint.

15. Admits the allegations contained in Paragraph 15

of the Complaint.

16. With respect to Paragraph 16 of the Complaint,

alleges that Plaintiff Mary Estelle Schmitt is a resident of

Hoosick Falls, New York; admits the other allegations

contained in Paragraph 16 of the Complaint.

17. Admits the allegations contained in Paragraph 17

of the Complaint.

18. With respect to Paragraph 18 of the Complaint,

alleges that Plaintiff Mary Craig is a resident of Middle-

town, Delaware; admits the other allegations contained

in Paragraph 18 of the Complaint.

19. With respect to Paragraph 19 of the Complaint,

admits that Anna May Penney is a citizen of the United

States and a resident of Middletown, Delaware; denies

knowledge or information sufficient to form a belief as

to the truth of the allegation concerning her membership

in UAW Local 1516; denies each and every other alleg-

tion contained in Paragraph 19 of the Complaint; alleges

that Anna May Penney was employed by Defendant at

its Globe Battery Division Delaware plant from J uly

1971 to March 1984, at which time she voluntarily ter-

minated her employment with Defendant.

Pil

20. With respect to Paragraph 20 of the Complaint

admits that Donald Penney is a citizen of the United

States and a resident of Middletown, Delaware; denies

knowledge or information sufficient to form a belief as

to the truth of the allegation concerning his membership

in UAW Local 1516; denies each and every other allega-

tion contained in Paragraph 20 of the Complaint; alleges

that Donald Penney was employed by Defendant at its

Globe Battery Division Delaware plant from September

1981 to March 1984, at which time he voluntarily ter-

minated his employment with Defendant.

21. With respect to Paragraph 21 of the C i

omplaint,

denies that Anna May Penney and Donald Penney are

— — of any bargaining unit of Defedant’s

employees; admits the other allegations contained in Para-

graph 21 of the Complaint. =

22 Admits the allegations contained in P

of the Complaint. bh ie ation

23. Admits the allegations contained in P

of the Complaint. Viale alia

24. Denies each and every allegati i i

gation contained in

Paragraph 24 of the Complaint; alleges that Defendant

is incorporated and exists under the laws of the State of

Wisconsin.

25. With respect to Paragraph 25 of i

alleges that Defendant’s prin Seles cae

cated at 5757 North Green Bay Avenue, Glendale, Wis-

consin 53209; denies cach and every other allegation con-

tained in Paragraph 25 of the Complaint.

26. Denies each and every allegati i i

gation contained

Paragraph 26 of the Complaint. -

27. Denies’ each and every allegati i i

gation contained

Paragraph 27 of the Complaint. 7

28. Denies each and every allegati i :

gation contained

Paragraph 28 of the Complaint. pads

29. With respect to Paragraph 29 of the Complaint,

admits that no other individual has commenc: a court

action against Defendant concerning its Globe Battery

Division fetal protection policy; denies each and every

other allegation contained in Paragraph 29 of the Com-

plaint.

30. Denies each and every allegation contained in

Paragraph 30 of the Complaint.

31. With respect to Paragraph 31 of the Complaint,

admits that Defendant maintains a fetal protection policy

for its Globe Battery Division; denies each and every

other allegation contained in Paragraph 31 of the Com-

plaint. ;

32. Denies each and every allegation contained in

Paragraph 32 of the Complaint.

33. Denies each and every allegation contained in

Paragraph 33 of the Complaint.

34. Denies each and every allegation contained in

Paragraph 34 of the Complaint.

35. Denies each and every allegation contained in

Paragraph 35 of the Complaint.

36. Denies each and every allegation contained in

Paragraph 36 of the Complaint.

37. Admits the allegations contained in Paragraph 37

of the Complaint.

38. With respect to Paragraph 38 of the Complaint,

admits that the fetal protection policy includes lead ex-

posure reduction procedures and defines women of child-

bearing capability as including all women except those

whose inability to bear children is medically documented ;

denies each and every other allegation contained in Para-

graph 38 of the Complaint.

39. With respect to Paragraph 39 of the Complaint,

admits that since August 9, 1982, Defendant has imple-

mented and maintained a fetal protection policy at each

of its Globe Battery Division facilities; denies each and

every other allegation contained in Paragraph 39 of the

Complaint.

40. Denies each and every allegation contained in

Pargraph 40 of the Complaint.

41. Denies each and every allegation contained in

Paragraph 41 of the Complaint.

42. Denies each and every allegation contained in

Paragraph 42 and in each subpart of Paragraph 42 of

the Complaint.

43. Denies each and every allegation contained in

Paragraph 48 of the Complaint.

4. Denies each and every allegation contained in

Paragraph 44 of the Complaint.

45. With respect to Paragraph 45 of the Complaint,

admits that the percentage of female employees at De-

fendant’s Globe Battery Division production facilities has

not increased since the promulgation of the fetal protec-

tion policy; denies each and every other allegation con-

tained in Paragraph 45 of the Complaint.

46. With respect to Paragraph 46 of the Complaint,

admits that female employees capable of bearing children

are discouraged from bidding for positions in high lead

exposure jobs; denies each and every other allegation

contained in Paragraph 46 of the Complaint.

47. Denies each and every allegation contained in

Paragraph 47 of the Complaint.

48. Denies each and every allegation contained in

Paragraph 48 of the Complaint.

49. Denies each and every allegation contained in

Paragraph 49 of the Complaint.

50. Denies each and every allegation contained in

Paragraph 50 of the Complaint.

51. Denies each and every allegation contained in

Paragraph 51 of the Complaint.

52. Denies each and every allegation contained in

Paragraph 52 of the Complaint.

58. With respect to Paragraph 53 of the Complaint,

admits that under certain circumstances individual em-

ployees, male and female, may be given preferential treat-

ment regarding placement in low lead exposure jobs pur-

suant to the terms of the applicable bargaining agree-

ment; denies each and every other allegation contained

in Paragraph 53 of the Complaint.

54. Denies each and every allegation contained in

Paragraph 54 of the Complaint.

55. Denies each and every allegation contained in

Paragraph 55 of the Complaint.

56. Admits the allegations contained in Paragraph 56

of the Complaint.

57. With respect to Paragraph 57 of the Complaint,

admits that Ms. Sweetman would not have been trans-

ferred at the blood lead level at which she was trans-

ferred if she were not capable of bearing children ; denies

each and every other allegation contained in Paragraph

57 of the Complaint.

58. Admits the allegations contained in Paragraph 58

of the Complaint.

59. With respect to Paragraph 59 of the Complaint,

admits that if Ms. Sweetman were not capable of bearing

children she might have been allowed to return to a high

lead exposure job when her blood lead levels decreased

sufficiently; denies each and every other allegation con-

tained in Paragraph 59 of the Complaint.

60. Admits the allegations contained in Paragraph 60

of the Complaint.

61. With respect to Paragraph 61 of the Complaint,

admits that on January 24, 1984, the Delaware agency

issued a preliminary determination finding reasonable

cause to believe that Defendant had discriminated against

Ms. Sweetman with respect to her sex; denies that there

was any such discrimination and denies each and every

other allegation contained in Paragraph 61 of the Com-

plaint.

62. With respect to Paragraph 62 of the Complaint,

admits that Plaintiff Linda Burdick was told that the

fetal protection policy precluded her, as an individual

capable of bearing children, from working in high lead

exposure jobs; denies each and every other allegation

contained in Paragraph 62 of the Complaint.

63. With respect to Paragraph 63 of the Complaint,

admits that Ms. Burdick, as an individual capable of

bearing children, was discouraged by Defendant from

bidding on jobs with high lead exposure; denies each and

every other allegation contained in Paragraph 63 of the

Complaint.

64. Denies each and every allegation contained in

Paragraph 64 of the Complaint.

65. Denies each and every allegation contained in

Paragraph 65 of the Complaint.

66. With respect to Paragraph 66 of the Complaint,

admits that Plaintiff Elsie Nason was transferred from

her job as a side terminal welder because of her blood

lead levels; denies each and every other allegation con-

tained in Paragraph 66 of the Complaint.

67. With respect to Paragraph 67 of the Complaint,

admits that Ms. Nason, who has not provided Defendant

with medical documentation of her inability to bear chil-

dren, is considered a woman of childbearing capability

——e

——s-

as defined in Defendant’s Fetal Protection Policy; admits

the other allegation contained in Paragraph 67 of the

Complaint.

68. With respect to Paragraph 68 of the Complaint,

admits that if Ms. Nason were not capable of bearing

children, she might not have been transferred from a

high lead exposure job; denies each and every other alle-

gation contained in Paragraph 68 of the Complaint.

69. Admits the allegations contained in Paragraph 69

of the Complaint.

70. With respect to Paragraph 70 of the Complaint,

admits that Ms. Schmitt was told that the fetal pro-

tection policy precluded her, as an individual capable of

bearing children, from working in high lead exposure

jobs; denies each and every other allegation contained in

Paragraph 70 of the Complaint.

71. With respect to Paragraph 71 of the Complaint,

admits that the job Ms. Schmitt sought was given to a

less senior male employee; denies each and every other

allegation contained in Paragraph 71 of the Complaint.

72. With respect to Paragraph 72 of the Complaint,

admits that Plaintiff Shirley Jean Mackey was trans-

ferred from her job as a C.O.S. loader to container punch/

hot stamp operator; alleges that this transfer was due to

a reduction in force and in accordance with her seniority;

denies each and every other allegation contained in Para-

graph 72 of the Complaint.

73. Denies each and every allegation contained in

Paragraph 73 of the Complaint.

74. Denies each and every allegation contained in

Paragraph 74 of the Complaint.

75. Denies each and every allegation contained in

Paragraph 75 and in each subpart of Paragraph 75 of

the Complaint.

76. Denies each and every allegation contained in

Paragraph 76 of the Complaint.

77. Denies each and~ every allegation contained in

Paragraph 77 and in each subpart of Paragraph 77 of

the Complaint.

78. Denies each and every allegation contained in

Paragraph 78 of the Complaint.

79. Denies each and every allegation contained in

Paragraph 79 and in each subpart of Paragraph 79 of

the Complaint.

80. Denies each and every allegation contained in

Paragraph 80 and each subpart of Paragraph 80 of

the Complaint.

81. Denies each and every allegation contained in

Paragraph 81 of the Complaint.

82. Denies each and every allegation contained in

Paragraph 82 of the Complaint.

83. Denies each and every allegation contained in

Paragraph 83 of the Complaint.

84. With respect to Part VI of the Complaint, denies

that Plaintiffs are entitled to any relief whatsoever.

ADDITIONAL DEFENSES

85. As and for its first separate and alternative de-

fense, alleges that Plaintiffs fail to state a claim upon

which relief can be granted.

86. As and for its second separate and alternative de-

fense, alleges that this Court lacks jurisdiction over some

of the claims contained in the Complaint because of the

failure to file appropriate charges of employment dis-

crimination with the Equal Employment Opportunity

Commission within the time prescribed by the statute.

87. As and for its third separate and alternative de-

fense, alleges that being an individual incapable of bear-

ing children is a bona fide occupational qualification for

employment in certain high lead exposure jobs in the De-

fendant’s Globe Battery Division, pursuant to Sec. 703

(e) of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-2 (e).

88. As for its fourth separate and alternative de-

fense, alleges that the Defendant’s Globe Battery Divi-

sion fetal protection policy is required by business neces-

sity in order to protect the health and safety of the

unborn children of women capable of bearing children

from substantial and significant risk of harm from the

exposure of such women to lead in certain jobs in the

Defendant’s Globe Battery Division facilities.

WHEREFORE, Defendant, Johnsun Controls, Inc.,

prays that this action be dismissed in its entirety, that

Plaintiffs be denied all relief prayed for in their Com-

plaint, and that Defendant be discharged without delay,

be awarded its costs expended herein, including reason-

able attorneys’ fees, and be granted such other and fur-

ther relief to which it may be entitled.

Dated this 31st day of May, i984

[Signatures Omitted in Printing]

[Affidavit of Service Omitted in Printing]

[EXCERPTS OF DEPOSITION OF E.A. ROSS]

(Horwitz Aff., Ex. A)

* * e *

[67] Q. Now, other than office positions and non-office

salaried positions, has the Battery Division hired women

for any other positions?

A. Women of child-bearing capability?

Q. Yeah, at its manufacturing facilities since it

adopted the Fetal Protection Policy.

A. That’s what I was trying to answer before. In the

“.% Plants, again, when you say manufacturing?

. Yes.

A. The best of my knowledge, the answer would be

no, because the policy conditions haven’t been met.

[ROSS MEMORANDUM]

(Ross Depo., Ex. 8)

JOHNSON CONTROLS

Inter-Office Correspondence

Date August 16, 1982

Subject FETAL PROTECTION POLICY

From E. A. Ross

To GBD Plant Managers

GBD Plant Personnel Managers

The attached Fetal Protection Policy has been approved

and is ready for implementation. Several points should

be given your consideration:

1. Communication sequence should probably be Plant

Staff, Local Union and the bulletin board (M. C.

Zilis’ policy statement as a permanent posting).

2. In the non-UAW battery plants (and Owosso and

Toledo), we should attempt to get the Local Union

“on board” through discussion. Pending written

clarification of our right to prohibit transfers,

the policy states that no fertile women will be

hired. In all plants, our position is that we have

the right to restrict transfers based upon com-

pany right to designate job, management rights

clause, qualification aspect of transfer clause, etc.

3. From a “PR” point of view, w2 are not saying

that we have discontinued h: .g fertile females.

We are saying that hiring is restricted as speci-

fied in the policy. Fertile females can and should

be hired at times when policy conditions and re-

strictions are satisfied.

4. From an “AAP” and “EEO” point of view, para-

graph “3” also applies. In addition, AAP’s should

be reviewed in light of this policy. It is antici-

pated that committments regarding plant female

hiring will be significantly lower in the future.

5. Please review your entire applicant flow proce-

dures (including review of medical procedures

with the Plant Nurse and Doctor). These, of

course, vary from plant to plant. Perhaps the

most practical procedure regarding applicants

would be to ask your plant contact point (re-

ceptionist?) to inform female applicants that “we

have no openings for women capable of bearing

children at this time.” Questions regarding fer-

tility, the policy itself, ete. could then be referred

to the Plant Nurse or Personnel.

6. Questions regarding sterilization will come from

both employees and applicants. It’s suggested that

they be referred to the Nurse.

7. All of the above will be reviewed in greater detail

during the Divisional part of our Personnel Man-

agers’ Meeting the week of October 25th. Mean-

while, feel free to direct questions to the under-

signed, Mary Byrne or Jean Beaudoin.

8. In Texarkana and Florence, we are operating on

the assumption that transfers into prohibited jobs

would be minimal and can be prohibited under

existing contracts. Accordingly, no limit should

be put on the hiring of women of child bearing

capabilities.

EAR:ss

ec: J. Beaudoin

M. Byrne

R. Rendl

W. Schmidt .

J. Stuppia

R. Tippey

Db. Van Horne

M. Zilis

[EEOC CHARGE]

(Horwitz Aff. Ex. A)

MS. LOIS A. SWEETMAN

I. On January 10, 1983, I was transferred from my

position as a C.0.S. Loader to the Formation Sec-

tion.

II. I was told by James Fisher, that I was being

moved to the Formation Section because my blood

lead concentration reading was high and that I

was being moved for the fetus protection plan.

III. I believe that I have been discriminated against

on the basis of by sex, female, because:

1. Women who are in the child bearing age can

not go back to the leaded section when their

blood lead concentration is lower.

2. When men’s blood lead concentration is low

they can be moved back into their same posi-

tion which is in a leaded area.

* * * bad

* & * *

[EEOC CHARGE}

(Horwitz Aff., Ex. C)

ELSIE NASON, MARY ESTELLE SCHMITT

and LINDA BURDICK

On or after August. 9, 1982, the Company propounded a

“Fetal Protection Policy,” which it thereafter announced

to its plants and to the unions representing workers at

its plants. This policy was implemented without the con-

sent of the unions representing the employees in the

relevant bargaining units, and in violation of its collec-

tive bargaining agreements.

This policy on its face and as applied, discriminates on

the basis of sex. It constitutes an overt sex-based clas-

sification, and it also has an adverse impact on the basis

of sex. It particularly discriminates on the basis of sex as

defined in the Pregnancy Disability Act of 1978 amend-

ment to Titie VII of the Civil Rights Act of 1964.

The fetal protection policy discriminates against both

men and women on the basis of sex. This includes, but

is not limited to, discrimination against women by re-

quiring their removal from certain lead exposure jobs

resulting in discriminatory denial of employee opportuni-

ties, including promotion, transfer, hiring and placement

on the basis of sex. In providing involuntary reproductive

health hazard protection to women but not to men, the

policy further discriminates on the basis of sex against

men.

This policy violates Section 703(a) (1) (2) of Title VII,

42 U.S.C. Sections 2000e-2(a) (1) and

Specifically, the implementation of this policy at the

Bennington, Vermont plant, discriminates against Elsie

Nason, Mary Estelle Schmitt and Linda Burdick in the

following ways:

In or about February of 1983, Elsie Nason was

moved from her job as a site terminal welder be-

cause of the lead in the area, and because even

though fifty years old and divorced, she is consid-

ered a fertile female. If Mrs. Nason were a male

she would not have been transferred. Ms. Nason

had been at the job of site terminal welder for the

previous four years. The job move has meant a

loss of both incentive pay and significant job satis-

faction.

On or about June, 1983, Mary Estelle Schmitt was de-

nied a job in Quality Control, which had just become

available, and for which she had placed two advance bids

in 1982. She was refused the job because she is a fertile

female. She was told by the employer that she cannot

work in a leaded area. The job was given to a male,

with close to one and one-half years less seniority.

Linda Burdick has been discriminated against because

her opportunity for advancement is far more limited than

that of males. She has been informed that because of

the existence of the “Fetal Protection Policy” she, as a

fertile female, will not be allowed to work in a “leaded”

area. She has been discouraged from bidding on jobs

in leaded areas because of the existence of the Plan. If

the Plan was not in effect, she would have bid on jobs

in leaded areas as they became available.

This charge is filed by counsel on behalf of Elsie Nason,

Mary Estelle Schmitt and Linda Burdick, as well as all

others who may be similarly discriminated against by the

implementation of the Globe Battery “Fetal Protection

Policy.”

[EEOC CHARGE]

(Horwitz Aff., Ex. F)

SHIRLEY JEAN MACKEY

” * * *

On or after August 9, 1982, the Company propounded

a “Fetal Protection Policy,” which it thereafter announced

to its plants and to the unions representing workers at

its plants. The policy was implemented without the con-

sent of the unions representing the employees in the rele-

vant bargaining units, and in violation of the collective

bargaining agreements.

This policy, on its face and as applied, discriminates on

the basis of sex. It constitutes an overt sex-based classi-

fication, and it also has an adverse impact on the basis

of sex. It particularly discriminates on the basis of sex

as defined in the Pregnancy Disability Act of 1978

amendment to Title VII of the Civil Rights Act of 1964.

The fetal protection policy discriminates against both

men and women on the basis of sex. This includes, but

is not limited to, discrimination against women by re-

quiring their removal from certain lead exposure jobs,

resulting in discriminatory denial of employment op-

portunities including promotion, transfer, hiring and place-

ment on the basis of sex. In providing involuntary repro-

ductive health hazard protection to women but not to

men, the policy further discriminates on the basis of

sex against men.

This policy violates Section 703(a)(1) and (2) of Title

VII, 42 U.S.C. Sections 2000e-2(a) (I) and (2).

Specifically, the implementation of this policy at the

Atlanta, Georgia plant discriminates against Shirley Jean

Mackey by causing her removal from her job in a lead

re area because she is a fertile female. In or about

‘April, 1983, Ms. Mackey was transferred from her job

as a COS loader to a non-leaded area job, that of con-

tainer punch operator. If Ms. Mackey were a male, she

would not have been transferred.

i i f Shirley

This charge is filed by Counsel on behalf o Sh

Jean an as well as others who may be similarly

discriminated against by the implementation of the Globe

Battery “Fetal Protection Policy.”

e * * ®

[EEOC CHARGE]

(Horwitz Aff., Ex. G)

MS. MARY CRAIG

On or after August 9, 1982, the Company propounded a

“Fetal Protection Policy,” which thereafter announced

to its plants, its employees, and to the unions represent-

ing workers at its plants. This policy was implemented

without the consent o* the unions representing the em-

ployees in the relevant bargaining units, and in viola-

tion of its collective bargaining agreements.

This policy, on its face and as applied, discriminates on

the basis of sex. It constitutes an overt sex-based classi-

fication, and it also has an adverse impact on the basis

of sex. It particularly discriminates on the basis of sex

as definec in the Pregnancy Disability Act of 1978

amendment to Title VII of the Civil Rights Act of 1964.

The fetal protection policy discriminates against both

men and women on the basis of sex. This includes, but

is not limited to, discrimination against women by re-

quiring their removal from certain lead exposure jobs,

resulting in discriminatory denial of employment oppor-

tunities, including promotion, transfer, hiring and place-

ment on the basis of sex, providing involuntary repro-

ductiye health hazard protection to women but not to

men, the policy further discriminates on the basis of sex

against men.

This policy violates Section 703(a) (1) (2) of Title VII,

42 U.S.C. Sections 2000e-2(a) (1) and (2).

In particular, the employer’s fetal protection policy has

discriminated on the basis of sex against charging party

Mary Craig. The company’s announcement of this policy

threatenea her, unlike her fertile male co-workers, =

loss of her desirable position gees in A oe .

i S.

area. Under the terms of the policy, Ms. '

i j ity i terilized or other

hieve job security if she were s

md an cag oP sor Her male co-workers poly

required to prove infertility in order to be assured 0

job retention on these same exposure jobs.

i , a but

employer’s imposition of infertility upon women *

bn pi = a condition of secure employment —

nated against Ms. Craig, unlawfully gens deg =

submitting to sterilization in order to be = )

job. She elected to be sterilized on June 27, 1983.

This charge is filed on behalf of Ms. Craig and all others

who may be similarly discriminated against by the em-

ployer because of its “fetal protection policy.

* ” * ®

[EEOC CHARGE]

(Horwitz Aff., Ex. H)

MS. ANNA MAY PENNEY

- ” + *

On or after August 9, 1982, the Company propounded

a “Fetal Protection Policy,” which it thereafter an-

nounced to its plants and to the unions representing

workers at its plants. This policy was implemented with-

out the consent of the unions representing the employees

in the relevant bargaining units, and in violation of its

collective bargaining agreements.

This policy, on its face and as applied, discriminates on

the basis of sex. It constitutes an overt sex-based classi-

fication, and it also has an adverse impact on the basis

of sex. It particularly discriminates on the basis of sex

as defined in the Pregnancy Disability Act of 1978

amendment to Title VII of the Civil Rights Act of 1964.

The fetal protection policy discriminates against both

men and women on the basis of sex. This includes, but

is not limited to, discrimination against women by re-

quiring their removal from certain lead exposure jobs,

resulting in discriminatory denial of employment oppor-

tunities, including promotion, transfer, hiring and place-

ment on the basis of sex. Providing involuntary reproduc-

tive health hazard protection to women but not to men,

the policy further discriminates on the basis of sex

against men.

This policy violates Section 703(a) (1) (2) of Title VII,

42 U.S.C. Sections 2000e-2(a) (1) and (2).

In particular, as implemented at the Middletown, Dela-

ware plant, the employer’s fetal protection policy dis-

criminates On the basis of sex against Anna May Penney

e ‘

es eo -

een.

iring her, because she is a fertile female, to wear

+ ae when her blood lead level is lawer than the

blood lead level at which a male is required to wear =

Prior to the implementation of the fetal protection po —

the blood lead levels at which female and male workers

were placed on and off respirators were the same.

This charge is filed by Counsel on behalf of Anna May

Penney as well as all others who may be similarly dis-

criminated against by the implementation of the Globe

Battery fetal protection policy.

+ * * ®

[EEOC CHARGE]

(Horwitz Aff., Ex. I)

DONALD PENNEY

* * . *

On March 6, 1984, Donald Penney and his wife Anna

May Penney, both production workers at the Company’s

Globe Battery Division, Delaware plant, met with John

Frey, the plant Personnel Manager, to discuss their re-

quested Leaves of Absence. Mr. Penney had requested a

three month leave of absence for the purpose of lowering

his blood lead level to enable him to father a child. At

the meeting Donald Penney was harassed and intimi-

dated into quitting by Mr. Frey. The events of this March

6, 1984 meeting constitute a constructive discharge of

Mr. Penney in violation of Sections 703(a) and 704(a)

of Title VII, 42 U.S.C. § 2000e-2(a) and 3(a).

At the time of the meeting Mr. Penney and his wife,

Ms. Penney, each filed an EEOC charge against the Com-

pany for discriminating against both men and women on

the basis of sex through the Company’s implementation

of its “Fetal Protection Policy.” The charges filed on

January 1, 1984 and February 2, 1984 respectively, state,

among other things, that the “Fetal Protection Policy”

was a violation of Title VII, 42 U.S.C. Sections 2000e-2

(a)(1) and (2). Filing an EEOC discrimination charge

is a protected form of opposition to employment dis-

crimination.

Mr. Frey made the pending EEOC charges and po-

tential lawsuit a major issue at the March 6, 1984

meeting. He informed Mr. Penney that he did not know

why Mr. Penney would want a leave when Mr. Penney

was suing the Company about the “Fetal Protection

Policy” and that he, Mr. Frey, would recommend against

— ree

i i Mr. Frey

ting the leave. Throughout the meeting,

pore harassed and intimidated Mr. Penney and

said that if Mr. and Mrs. Penney felt the way they did

they should quit.

’s refusal to recommend that Mr. Penney be

oma te nae leave, when other requested age

have been granted, constitutes discrimination on the

basis of sex, as well as retaliation for the Penneys pre

vious filing of EEOC charges. Mr. Frey s or greaggeer

and intimidation of Mr. Penney was intended —

had the effect of coercing him into quitting. It there-

fore constitutes a constructive discharge for the ge

of and having the effect of sex discrimination as be

as retaliation for the Penney’s previously filing E

charges. ae

ve-described discrimination was in part, if no

esas retaliation for the Penney’s earlier filing of

EEOC charges, as well as constituting sex discrimina-

ion i ‘ for a leave for pro-

on in that Mr. Penney’s request

andi purposes would have been accommodated had

he been a woman.

This charge is filed on behalf of Donald Penney by

counsel.

[EEOC CHARGE}

(Horwitz Aff., Ex. I)

MR. DONALD PENNEY

On or after August 9, 1982, the Company propounded a

“Fetal Protection Policy,” which it thereafter announced

to its plants, its employees, and to the unions representing

workers at its plants. This policy was implemented with-

out the consent of the unions representing the employees

in the relevant bargaining units, and in violation of its

collective bargaining agreements,

This policy, on its face and as applied, discriminates on

the basis of sex. It constitutes an overt sex-based classi-

fication, and it also has an adverse impact on the basis

of sex. It particularly discriminates on the basis of sex

as defined in the Pregnancy Disability Act of 1978 amend-

ment to Title VII of the Civil Rights Act of 1964.

The fetal protection policy discriminates against both men

and women on the basis of sex. This includes, but is not

limited to, discrimination against women by requiring

their removal from certain lead exposure jobs, resulting

in discriminatory denial of employment opportunities, in-

cluding promotion, transfer, hiring and placement on the

basis of sex. In providing involuntary reproductive health

hazard protection to women but not to men, the policy

further discriminates on the basis of sex against men.

This policy violates Section 703(a)(1)(2) of Title VII,

42 U.S.C. Sections 2000e-2 (a) (1) and (2).

In particular, as implemented at the Middletown, Dela-

ware plant, the employer’s fetal protection policy dis-

criminates on the basis of sex against Donald Penney in

at least two respects. First, it denies nim equally clean,

+ et et

safe and free from hazard, terms and conditions of em-

ployment compared to women. Second, because the em-

ployer’s policy unlawfully discriminates against women

by requiring their removal from certain positions under

certain circumstances, it also grants them preferential

placement treatment. This results in disadvantageous

treatment of male workers in placement, assignment,

promotion and/or transfer to low lead exposure jobs, and

unlawfully discriminates against these men on the basis

of sex.

This charge is filed on behalf of Donald Penney, and all

others who are similarly discriminated against on the

basis of sex by the employer because of its “fetal pro-

tection policy.”

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

Civil Action No. 84-C-0472

(Caption Omitted in Printing)

AFFIDAVIT OF EUNICE WILLIAMS

~ . + .

3. On November 26 and November 27, 1984, I con-

ducted a telephone survey of the UAW local unions which

represent employees of the Battery Division of Johnson

Controls, Inc. to determine the total number of production

employees at each plant.

4. I determined that Johnson Controls, Inc. employs

a total of approximately 2109 production employees at its

Battery Division plant. 1834 of those employees are male

and 275 are female.

* * * *

[Signatures Omitted in Printing]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

Civil Action No. 84-C-0472

(Caption Omitted in Printing)

AFFIDAVIT OF PAUL B. HAMMOND

STATE OF OHIO )

) gs.

COUNTY OF HAMILTON )

Paul B. “Hammond, being first duly sworn, on oath,

deposes and states as follows:

1. I antsa Professor of Environmental Health at the

University of Cincinnati. I have held this position since

1972. I received my degree in veterinary medicine in

1949 from Colorado State University and a doctorate in

pharmacology from the University of Minnesota in 1955.

Attached hereto and incorporated by reference as Exhibit

A is my curriculum vitae which lists, among other things,

my education and professional background, professional

activities and memberships, as well as a bibliography of

my professional publications.

2. As a professor at the University of Cincinnati my

responsibilities include both teaching and research. In

the teaching area, I am currently the Chairman of the

Education Group Steering Committee, Department of En-

vironmental Health. As Chairman I oversee the manage-

ment and direction of several environmental health grad-

uate programs. My current research responsibilities are

in the area of the study of adverse effects of lead on

children. In the past, I have done research into various

aspects of lead toxicity. During my entire tenure at the

University of Cincinnati, I have been involved in the

study of lead toxicity.

3. I am the director of a study that is currently being

conducted in Cincinnati on the health effects of lead ex-

posure on children. This study analyzes the subsequent

mental development of children who have been exposed to

lead both in utero and postnatally. The initial results of

this ongoing study, which were released in the last year

or so, establish that exposure of the fetus to maternal

blood lead levels in excess of 12 micrograms per deciliter

of whole blood creates a significant risk of low birth

weight and a clear decrement in the subsequent mental

development of the infant.

4. A similar study of the health effect caused by ex-

posure of the fetus to lead is being conducted in Boston.

The most recently published results of the Boston study,

which were released in the last year or so, conclude that

there is a clear decrement in the mental development of

the infant at ages six months and twelve months when

the mother has blood lead levels in excess of 10 micro-

grams during pregnancy. In both the Cincinnati and

Boston studies, it was determined that the decreased

mental development in the infants was caused by fetal

exposure to lead, not postnatal exposure.

5. Based on these very recent studies, it is my opinion

that it is medically unacceptable, from the point of view

of the health of the fetus, for women to be exposed to

lead which can result in blood lead levels in excess of 12

micrograms during pregnancy.

6. There is no clear evidence that exposure of the adult

female to lead which causes blood levels of up to 50 micro-

grams will have any adverse effect on the performance

of the female’s reproductive organs.

7. I am not aware of any human studies which con-

clude that blood lead levels of up to, and even exceeding,

50 micrograms in the adult male will cause any demon-

strable effect on the development of the fetus. Studies

of the effect on the offspring of lead exposed male rats

cannot be readily extrapolated to the human male, par-

ticularly as to the dose necessary to cause reproductive

effects.

8. In 1975, Ioana Lancranjan published a study of the

semen characteristics of men who were exposed to lead.

The Lancranjan study concludes that at some level of lead

exposure there is an effect on sperm morphology (shape).

However, ne conclusions can be reached from this study

as to whether exposure of the adult male to lead will have

any effect on the fetus. First, other studies have con-

cluded that semen analysis is a very uncertain measure

of reproductive function. Lancranjan admits in the study

that it was merely a study of semen characteristics and

was not to be taken as an indication of reproductive

function.

Further, the measurement of the levels of lead in the

blood of the men used in the study is highly suspect.

There are basically three measures of lead absorption:

lead in the blood, the Delta Amino Levulinic Acid (ALA)

in the urine and lead in the urine. Lead in the urine and

ALA in the urine have been correlated to blood lead levels.

However, in the Lancranjan study, the reported blood

lead levels did not correspond to the amount of lead and

ALA that was found in the urine. Rather, the blood lead

levels were toc low for the level of the other two measure-

ments of lead exposure. For example, for the group which

reported a blood lead level of 75 micrograms per deca-

liter, I would have predicted the ALA to be only 19.2,

instead of the 56.5 that was reported in the study.

Conversely, if the 56.5 ALA measurement is correct, then

I would predict that the blood lead levels would have been

greater than 90 micrograms, rather than the 75 micro-

grams reported. Similarly, Lancranjan reports a urine

lead of 385 for the 75 microgram blood lead group; how-

ever, based on a 385 urine lead, I would have predicted

a blood lead level of greater than 130 micrograms. The

‘lead urine and the ALA reported for the other groups

were also too high for the blood leads reported. It is my

opinion that for some reason Lancranjan underestimated

the true blood leads of the male workers in her study

and, theref ‘re, I believe no conclusion can be drawn from

this study as to the blood lead levels at which there is an

effect on the shape of the sperm.

9. This Affidavit is made and submitted in support of

the Motion for Summary Judgment of Defendant John-

son Controls, Inc., in the above-entitled action.

Dated this 12th day of August, 1986.

[Signatures Omitted in Printing]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

Civil Action No. 84-C-0472

(Caption Omitted in Printing)

AFFIDAVIT OF JEAN REAUDOIN

STATE OF MINNESOTA )

SS.

CouUNTY 01" ST. LouIs )

JEAN BEAUDOIN, being first duly sworn, on oath,

deposes and states as follows:

1. I am the Manager of Health, Safety and Environ-

mental Control for the Battery Division of Johnson Con-

trols, Inc. (“the Company”). I have held this position

since September 1978. I have been employed by the Com-

pany or its predecessor, Globe-Union, since 1972.

2. There are 17 plants in the Battery Division of the

Company, 14 of which manufacture batteries. These

plants produce a variety of automotive and specialty

batteries. Lead is the principal active material used in

the batteries. It is the principal ingredient of the paste

which forms the plates of the batteries. Lead also forms

the structure for the plates and all the conductive ele-

ments in the battery for transmitting current.

3. Plaintiffs, International Union, United Automobile,

Aerospace and Agricultural Implement Workers of Amer-

ica and its respective locals are the collective bargaining

representatives of the production employees at nine of

the Battery Division plants. These nine plants are lo-

cated in Fullerton, California; Garland, Texas; Louis-

ville, Kentucky; Middletown, Delaware; Owosso, Michi-

gan; Bennington, Vermont; Atlanta, Georgia; Texarkana,

Arkansas; and Holland, Ohio.

4. Attached hereto and incorporated by reference as

Exhibit A is the Fetal Protection Policy that was imple-

mented in 1982 and 1983 at all Battery Division facili-

ties. It remains in effect today at all locations.

5. Attached hereto and incorporated by reference as

Exhibit B is a true and exact copy of the transcript of

selected portions of the testimony I gave on July 15 and

July 16, 1985, in a proceeding conducted before the Cali-

fornia Department of Fair Employment and Housing in

connection with the implementation of the Fetal Protec-

tion Policy at the Battery Division plant located in Ful-

lerton, California.

6. As discussed in my attached testimony (xhibit

B) at pages 118 to 121, the Company has instituted en-

vironmental engineering controls to reduge lead exposure

at all its Battery Division plants. Since 1978 the Com-

pany has spent approximately fifteen million dollars on

environmental engineering controls at its Battery Divi-

sion plants, the vast majority of which are designed to

reduce employee lead exposure.

7. Attached hereto and incorporated by reference as

Exhibit C is a copy of the lead hygiene program cur-

rently in effect at all Battery Division plants. This is the

Division’s composite program for controlling lead ex-

posure and lead absorption of employees. It identifies the

various lead exposure reduction and monitoring programs

in eect in the Battery Division. The provisions contained

in Exhibit C are all currently in effect, with the exception

that the goal of maintaining employee blood lead concen-

trations below 60 micrograms per 100 mililiters of blood

was lowered to 50 micrograms and then to 40 micro-

grams, the current goal.

8. Attached hereto and incorporated by reference as

Exhibit D is a copy of the biological monitoring and

follow-up program currently in effect at all Battery Divi-

sion plants for employees whose job duties expose them to

lead.

$9. Attached hereto and incorporated by reference as

Exhibit E is a copy of the respirator program currently

in effect at all Battery Division plants.

10. Attached hereto and incorporated by reference as

Exhibit F is a copy of the medical surveillance program

currently in effect at all Battery Division plants.

11. Attached hereto and incorporated by reference as

Exhibit G is a copy of the program for periodic occupa-

tional evaluation for lead exposure currently in effect at

all Battery Division plants.

12. Attached hereto and incorporated by reference as

Exhibit H is a copy of the wash up and clothes changing:

program currently in effect at all Battery Division plants.

13. Attached hereto and incorporated by reference as

Exhibit I is a copy of the program for work clothing and

footwear currently in effect at all Battery Division

plants.

14. The lead exposure reduction programs that are

attached hereto as Exhibits C through I are described in

my attached testimony (Exhibit B) at pages 125 to 133.

15. Attached hereto and incorporated by reference as

Exhibit J is a copy of the policy guidelines for employ-

ment in lead exposure of women capable of bearing chil-

dren that was in effect in the Battery Division from 1977

until the implementation of the Fetal Protection Policy in

1982 and 1983.

16. Attached hereto and incorporated by reference as

Exhibit K is a chart which lists some of the pregnancies

that occurred at the Battery Division plants during the

last 4 years that the voluntary fetal protection program

(Exhibit J) was in effect in the Battery Division. This

chart is described as Exhibit I in my attached testimony

(Exhibit B) at pages 153 to 154.

17. The Company considered alternative methods to

protect the health of the fetus from exposure to lead

prior to adopting the Fetal Protection Policy. These

alternatives were rejected because they did not ade-

quately protect the health of the unborn children of the

Company’s workers. For example, as discussed above, the

Company adopted an educational and counseling program

(Exhibit J) for those females capable of bearing chil-

dren, urging them to avoid those work areas where their

blood lead might exceed 30 micrograms. This voluntary

program was inadequate because, as demonstrated in

attached Exhibit K, significant numbers of women be-

came pregnant while having blood levels in excess of 30

micrograms. Further, the Company has attempted to

develop an alternative to lead acid batteries in order to

totally eliminate tead”exposure; however, these attempts

have been completely unsuccessful to date. We have con-

tinud to study, develop, and implement engineering con-

trols to reduce the lead exposure and blood lead levels of

all employees. However, there are not presently avail-

able engineering controls that will reduce lead exposure

in the Battery Division plants to a level which will

assure that all employees will have blood lead levels

below 30 micrograms.

18. Attached hereto and incorporated by reference as

Exhibit L is a pie chart which shows the profile of blood

lead distributions in the Battery Division plants in April

1982 as compared to April 1985.

19. Attached hereto and incorporated by reference as

Exhibit M is a tabular chart of the blood lead distribu-

tions in the Battery Division plants at the end of April

for the years 1982, 1983, 1984 and 1985.

21. This Affidavit is based upon my own personal

knowledge and my review of Company records and is sub-

mitted in support of the Motion for Summary Judgment

of Defendant Johnson Controls, Inc., in the above-entitled

action.

Dated this 12th day of August, 1986.

[Signatures Omitted in Printing]

‘FETAL PROTECTION POLICY]

(Beaudoin Aff., Ex. A)

JOHNSON CONTROLS

STANDARD PROCEDURE

Division BATTERY

Section HSECD

Date Effective 11-01-82

Date Revised 07-21-83

Bulletin No. 3-954-01

Endorsed By VP MFG., Dir. Personnel

Distribution 3X-39 & SPECIAL

Subject FETAL PROTECTION PROGRAM

IMPLEMENTATION PROCEDURE

I. Scope

A. This standard procedure establishes the procedure

for implementing the Fetal Protection Policy

(See Exhibit A in the Branch Plants and at

Glendale. It is applicable to women of childbear-

ing capability.

B. These practices do not apply to women who have

medical confirmation of their inability to bear

children, and is in no way intended to support or

encourage women of childbearing capability to

seek to change this status. Employees are strongly

advised against any such action.

II. STANDARD PRACTICES

A. Definitions

The following terms are defined for the purpose

of this document:

1. Women of childbearing capability—All women

except those whose inability to bear children

is medically documented.

. Basic Action Plan—Implementation of full

shift respirator wear requirement and, where

feasible, end of shift showering.

. “Acceptable” work station—A work station

where the blood lead readings of the incum-

bents over the past year are < 30 ug” and

air-lead ratings are < 30 ug/m*. Note how-

ever, that an incumbent employee covered by

this policy need not be transferred if she

maintains a blood-lead reading < 30 ug% in

an air exposure = 30 ug/m’*.

. Medical Removal Protection (MRP) Benefits

—refer to SPB 3-953-04, V,K,]. for details.

MRP benefits will continue until such time

as the employee:

a. no longer has childbearing capability and

fails to take advantage of a bid opportunity

for a job for which she has sufficient se-

niority and is otherwise qualified, or

b. fails to take advantage of a bid oppor-

tunity for an “acceptable” job in the same

or higher classification for which she has

has sufficient seniority and is otherwise

qualified.

(Note: The 18 month timitation does not apply

to employees transferred under this proce-

dure. )

All removals from lead exposure under this

program are considered to be permanent, and

not temporary moves.

B. References

SPB 1-950-20 Medical Surveillance Program

SPB 3-950-21 Pre-Employment Examinations

SPB 3-953-04 Biological Monitoring Program

SPB 3-953-11 Respirator Program

C. Responsibilities

The Plant Manager shall be responsible for

the implementation of this procedure through

the Personnel Manager.

The Manager of Personnel Administration

shall be responsible for review of personnel

procedures and forms and coordination of

these practices with EEOC/AAP policies.

The Manager of Health, Safety & Environ-

mental Control shall be responsible for estab-

lishment and review of this procedure and for

auditing compliance thereto.

D. New Hires

Women of childbearing capability will only be

hired:

REVISED

1. In jobs where, within the past year, no blood-

lead sample: result has been > 30 ug% and no

air-lead sample result has been = 30 ug/m*.

2. In jobs from which transfers into jobs de-

scribed in “1” can be prohibited.

E. Existing Employees

REVISED

An existing employee capable of bearing children

shall be placed only in a job where, within the

past year, no blood-lead result of any of the in-

cumbents (transferees excluded) has been = 30

ug” and no incumbent’s air-lead exposure has

been = 30 ug/m’, except that an incumbent em-

ployee covered by this policy need not be trans-

ferred if she maintains a blood-lead reading < 30

ug® in an air exposure = 30 ug/m*.

F. Biological Surveillance Program

All women of childbearing capability shall be

counselled as to the effects of lead and the

importance of personal hygiene and good work

practices at the time each blood-lead sample is

executed.

Biological monitoring frequency

Blood lead < 20 ug”—sample every 3 months

Blood lead 20-29 ug”—sample every 2 months

with ZPP in the interval between (battery

plants only )

Blood lead > 30%—sample monthly

G. Placement Practices

Individual with blood leads = 40 ug” (con-

firmed )

a. Implement basic action plan.

b. Transfer as soon as possible to an “accept-

able” work station. Implement Medical Re-

moval Protection benefits.

Individual with blood leads 35-39 ug”

a. Basic action plan.

b, After two readings in this range, encour-

age voluntary transfer. Restrict expos-

ure to 40 hours/week in air-lead levels

= 30 ug /m*.

c. After four readings in this range transfer

as in G.1.b. above.

3. Individual with blood-leads 30-34 ug”

a. Basic action plan. @

b. After three readings in this range, en-

courage voluntary transfer. Institute over-

time restriction as in G.2.b. above.

Give priority to transfer to an acceptable

opening in the same job class.

c. After six readings in this range, transfer

as in G.1.b above.

NOTE: Actions at steps G.2 and G.3 are trig-

gered by the total number of consecutive

readings in the 30-39 ug® range.

4. If an employee’s blood-lead rises to = 30 ug”

institute steps as outlined in G.1, 2, and 3

above, depending on blood-lead level.

H. Employee Training

Any employee covered by this procedure, whose

blood-lead level is = 15 ug”, shall participate in

an annual lead education program with emphasis

on health effects of lead absorption.

Special Distribution

Plant Occupational Health Nurses

Plant Physicians .

EXHIBIT A

Johnson Controls, Inc.

5757 N. Green Bay Avenue

Post. Office Box 591

Milwaukee, WI 53201

Tel. 414/228 1200

Milton C. Zilis

Vice President & General Manager

Globe Battery Division

August 9, 1982

FETAL PROTECTION POLICY

We have over the years developed policies to protect the

health of our employees whenever the nature of their

duties may expose them to a health hazard and to pre-

vent 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 ill effects on the health of her unborn child

because the lead absorbed in the mother’s bloog.as the

result of this exposure can cross the placenta: mu 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 unborn

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

than an adult. The ill effects to the unborn child can

occur during the early stages of pregnancy, before the

mother is aware that she is pregnant, and can continue

throughout the pregnancy.

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 children of preg-

nant employees and applicants. It does not apply to those

women who have medical confirmation that they cannot

bear children. However, the policy is in no way intended

to support or encourage women of childbearing capability

to seek to change this status. Employees are strongly ad-

vised against any such action.

/s/ M. C. Zilis

M. C. ZILIS

[EXCERPTS OF BEAUDOIN TESTIMONY]

(Beaudoin Aff., Ex. B)

. * ~ *

[118] Q How does the company protect against exces-

sive exposure of employees to lead?

A We have a comprehensive program in that regard.

Foremost, of course, is employee education, training, coun-

seling. We rely very heavily on engineering controls and

have since long before I joined the company. We utilize

work practices, programs with the employees, housekeep-

ing programs, respiratory protection, work clothing and

equipment and shoes, and an ancillary function of this is

to keep all the lead that an employee may contact in the

plant in the plant, not to allow it to go home.

These programs are, say, monitored, if you will, through

our air sampling program which tends to document the

employees exposures, the individual exposures that an

employee would experience during a normal working day.

Then this is all buttressed by our medical surveillance

programs and our biological monitoring program.

* 7 . *

[122] Q What do you mean by personal hygiene prac-

tices?

[123] A Well, lead can be inhaled in the form of dust

or fume. It can also be ingested through transference

by contact. And employees can get lead on their hands,

they can get it under their finger nails. They can easily

transfer this to their face through normal habits that are

perfectly innocuous in every day life, brushing perspira-

tion of the brow, scratching an itchy noise, (sic) stifling

a cough or a yawn, blowing one’s nose. These are all

things that must be done with care and it is important

that people do this and it’s a behavioral practice that one

has to learn.

Q You mentioned air sampling, what does air sam-

pling do; what does it measure?

A All right. Air sampling is done with a personal

sampling pump that the individual wears. The air is

drawn into the pump through a filtered cassette that’s

positioned on the shoulder or lapel of the employee and,

as such, it’s drawing in air that’s in the approximate

breathing zone of the person. Sampling for monitoring

of exposures is normally done for full shifts and this

would include whatever the employee’s exposed to in a

regular job, the clean up, if the employee is involved in

doing special duties that day because perhaps che line on

which he’s normally working or the operation he’s nor-

mally working is down for some reason, you monitor that

because that’s what that employee’s exposure is.

Q What do you measure, what are you measuring in

taking the air sample?

A You’re collecting lead on a filter, you’re drawing,

in essence, a known amount of air through that filter so

you’re [124] collecting a known amount of lead from a

known amount of air. So you end up with a calculatable

concentration of lead in air and you know the amount of

air that you’re drawing through the pump because you

calibrate the pump at the start of the shift and again at

the end of the shift.

Q And when reference is made to air leads, is that

what you get as a result of the sampling?

A When you talk about the air leads, you’re talking

about the lead in the air, concentrations that are meas-

ured in the process.

Q Will two employees exposed to the same air leads

have the same blood leads or same amount of absorption

of the lead?

A Not necessarily.

Q Why is that?

A Well, I think no two of us are precisely the same

biologically. Secondly, there are two components, two

avenues or two pathways for moving lead from the am-

bient into the body: one is inhalation and the other is

ingestion or personal hygiene and contact.

So in the early days when air lead levels were very

very high, airborne exposure was the overwhelming route

of lead that was entering the body. As exposures have

been controlled increasingly more tightly as they are in

today’s environment in a manufacturing plant, in our

plants at least, then the components that can enter the

body through ingestion, through lack of less than good

personal hygiene can become very significant.

[125] And so it’s impossible to precisely correlate air

leads to blood leads. Certainly, as air leads increase,

blood leads will rise, but you cannot correlate it pre-

cisely. A further complicator would be respirators.

If you use respirators, you are in effect screening out

a great deal of the airborne contaminant that could be

inhaled.

Q Would two employees who work in the same work

station have the same air leads necessarily?

A No. Again, you’re dealing with work practices and

the effect of individual work practices will be to give rise

to variability. I think workers can be consistent, but

if you were to sample the same individual day after day

and he’s involved in the job where he’s handling product,

you will see that the exposure is going to have some

variability from day-to-day and much more so if you go

from employee to employee.

Q I ask that you look at what I believe has already

been introduced as Department Exhibit 7. Can you iden-

tify that document, please?

A It is Johnson Controls battery division standard

procedure bulletin entitled “Biological Monitoring Pro-

gram for Battery Division Employees”.

Q And generally what does it provide?

A It establishes the program for biological monitor-

ing and follow-up for employees who have lead exposure.

Q What is biological monitoring; what do you mean

by that phrase?

A As we—as we’re using it here, biological [126]

monitoring would refer to blood samples which are ana-

lyzed for blood lead content, lead content, I should say,

which is reported as blood leads, also analyzed for hemo-

globin or analyzed either for zinc protoporphyrin or free

eryrthrocytes, F.E.P. It may have been referred to ear-

lier as F.P.P. I’m not certain.

Q What are the purposes of these various biological

monitoring tests?

A The blood lead test, blood lead level basically is a

measure of the amount of lead that is circulating in an

individual’s blood stream. The other tests are more nearly

measures of the effect lead is having on the body.

Q What determines how often an individual is tested?

A Our biological monitoring frequency is determined

by blood lead levels, or Z.P.P. levels, the particular area

worked in, whether the employee is a new employee in

lead exposure or not, whether the employee is a woman

who is capable of bearing children. There are a great

many factors that will influence that frequency.

Q Who decides or on what conditions is an individual

removed or restricted in placement because of lead ex-

posure?

A Chere are really two mechanisms by which chat

can happen. Number one, the plant physician in review-

ing the monitoring results of the employee, from the em-

ployee, both air leads and the biologicals and in perhaps

in talking with the employee and examining employee,

may reach a conclusion that that employee sh

moved from exposure. And it’s a medical dete

{127} The other is via the numerical criteriaWin our

or running Six- pte average of blood leads in exces!

50 or at or above 50.

* * * *

[128] Q I'l show you what’s been marked as Respond-

ent’s Exhibit A and ask you to identify that docur#ent?

A This is labeled a Globe Union, Inc. standard pro-

cedure bulletin. It is 1-957-03. It’s entitled “Lead Hy-

giene Program” and this is basically an umbrella bulle-

~~.

tin, if you will, that covers the lead exposure control

programs.

fhere’s several programs that we have in place; air

sampling, respirators, wash up and clothes changing,

work clothing, housekeeping, training, engineering con-

trols. It’s meant to be basically an overall bulletin that

identifies these different programs.

'Q I notice the date last revised is June 15, ’79; is

it still in effect?

[129] A _ Yes, it is.

Q With respect to the Policy A, is there any change

there?

A. That’s a good point. The Item A-3, this bulletin

says that it is our policy to maintain our employees blood

lead concentration between 60 micrograms percent and

that was our policy at that time which was at the very

outset or approximately at the time the |! vod standard

was issued.

Our policy today is to control below 40 and beyond

that, ultimately to get as low as we possibly can.

- * % *

[131] Q Can you identify what’s been marked as Re-

spondent’s Exhibit C?

A This is a Glebe Union standard procedure bulletin

number 1-950-22. It’s entitled “Periodic Occupational

Medical [132] Evaluation”’.

Q And what is this about?

A it describes and governs the periodic examination :

and evaluations that a plant physician would make of

lead exposed employees.

Q What is its purpose?

A Its purpose i» to—it’s part of our overall employee

protection. It’s intended and this is the step where you

would be examining the employee to ascertain that there

is no impairment, no impairment of health due to lead

or that if there is, to determine what it might be and

the extent to which it may exist and, if necessary, to de-

termine what corrective action shoul” be taken.

.* . ° .

[140] Q Prior to any OSHA standards in that regard,

did the company pursuant to these policies, restrict

placement of employees and take other such action?

A The company had comprehensive lead exposure con-

trol programs and medical surveillance programs and

biological monitoring programs in effect well in advance

of the lead standard.

In terms of engineering controls, there were very [141]

extensive ventilation controls in place when I joined the

company in 1972. And there’s been a great deal of re-

finement and augmenting that has taken place since, but

that effort goes back well beyond me.

The biological monitoring program and medical sur-

veillance did contain provisions relating to lead trans-

fers. We had our own transfer triggers which were in

effect prior to the lead standard and when the lead stand-

ard first came into effect, we had triggers which were

lower than the lead standard.

Basically, the programs were more protective than

what was required by the regulation. And we did have

both the dual mechanism of the blood lead trigger as

well as physician’s medical judgment.

Q What are medical removal pro ection benefits?

A Medical removal protection Lenefits are basically

the payment—if an employee is removed from a job

which entails lead exposure and the person is removed

either because of a physician’s medical judgment or be-

cause the blood lead trigger is reached, the employee is

compensated at the average earnings of the job he was

removed from, if necessary.

And by way of explanation, a great many of our pro-

duction jobs are incentive jobs so that as the productivity

of the individual or of the group of which he is a mem-

ber increases, so do the earnings. When an individual is

transferred away from a ‘ob, of course, if it’s a .on-

incentive job, a straight-time rate, fine. If the job to

which he goes has the same rate or higher, there are no

benefits paid. If the rate is lower, then the individual’s

right is maintained at the [142] rate from which the

person was removed. With an incentive job because the

earnings day-to-day can be different depending on pro-

ductivity, we compute an average straight time hourly

earnings of while the individual was in the job and that

becomes the basis against or the benchmark against

which the earnings after the transfer are compared. If

the earnings after the transfer are greater, no benefits

are paid. If the earnings are less, then the individual

is compensated up to that level.

Q Did the company provide for medical removal pro-

tection benefits prior to the OSHA standard making any

mention of them?

A Yes.

[143] Q Do any of the company’s current policies ex-

ceed the OSHA requirements?

A Yes.

Q Which policies as examples?

A As examples, number one, our biological monitor-

ing policy monitors a greater frequency than that re-

quired by the lead standard.

Number two, we prescribe follow-up corrective ac-

tions whenever we see certain indications. That is not

contained in the lead standard. We have actually im-

plemented engineering controls in instances where air

leads themselves would not have required it, but where

we felt there was a significant risk to employees.

We have, let’s see, our medical surveillance program

has aspects of it which are more comprehensive than

what is required by the standard.

I believe our training programs go beyond the letter

of the regulation. We provide work clothing to people to

[144] whom we are not required to provide it under the

lead standard. We provide greater change fr-quency than

is required by the standard. We provide and require

showering and hand washing of individuals where it is

not required by the standard.

If I thought further, there may be others as well.

ae * * *

[151] Q Mr. Beaudoin, will you look at Department’s

Exhibit 5, please. Can you identify that document?

A It is a Johnson Control Standard Battery Division

Standard Procedure Bulletin Number 3-954-01 entitled

“Fetal Protection Program Implementation Procedure”.

Q Is that policy currently in effect?

A Yes, it is.

Q How did that policy come about?

A We have over time been monitoring medical litera-

ture as relates to lead and this includes fetal and re-

productive effects. Our medical consultant and some of

our plant physicians have been recommending to us that

we implement a policy in that the risk to the fetus who

might be present in the work place as carried by the

mother was too great a risk medically.

And we had had a voluntary policy or program in ef-

fect and the results of that program indicated that we

were seeing, number one, a high number of women who

were capable of bearing children with high blood leads

and, even more to the point, we were seeing a substan-

tial number of pregnancies where the blood leads of the

mother were well in excess of 30. Based upon that, we

felt it was necessary to take this type of an action.

* 7 a .

[152] A _ This is the guideline defining the voluntary

program that was in effect.

Q What was the date of the guidelines?

A June 9th, 1977.

Q What was the purpose of those guidelines?

A The purpose of the guidelines was to reduce the

risk to children our women employees would bear by a

thorough effort of counseling, educating them to the

risks that they were undertaking by working in lead ex-

posure with the hope that as they came to understand

and recognize what the magnitude of the risk was, that

they would remove themselves from that exposure.

And as a means of trying to emphasize the gravity,

the importance have this point, as we had these discus-

sions with them, as our medical people had these dis-

cussions, we asked them to sign the statement that they

acknowledged they understood these risks and we tried to

do this in a high profile manner with the employee as a

means of emphasizing the gravity of the situation.

. * * 7

[153] @Q Why did the company cease using this vol-

untary policy on fetal protection? . .

A Well, as I indicated earlier, we were seeing sig-

nificant numbers of women who were fertile having high

blood leads and even more serious than that, they became

pregnant with these high blood leads.

7. * * *

1155] Q How does this policy work; what is the pur-

pose in terms of specifically?

A The policy basically determines or sets up the

mechanism for determining whether an employee or an

applicant is capable of bearing children and then takes

steps—takes a step with the employees of assuring that

they are in positions where their blood leads and the air

leads do not exceed 30 micrograms per cubic meter of

air, especially the blood leads, and provides the pro-

grams that are necessary to assure this occurs.

Q Why do you want that to oceur?

A In order to be able te protect any fetus the woman

might conceive and carry. The fetus’ exposure is from

the mother’s—the lead in the mother’s body, specifically,

and most actively the lead in the blood and the mother’s

blood lead is not strictly a function of her current ex-

posure, but also can be a function of her previous ex-

posure.

[156] Q What happened under this policy to women

who were in jobs that became unacceptable?

A As the policy was implemented to minimize the

impact it would have and the disruptive impact it would

have on our employees and where employees were work-

ing in positions where they had successfully controlled

their own blood leads, in other words, they had the mix

of, proper mix of personal hygiene practices and work

practices that would allow them and they had demon-

strated this capability to control their blood leads below

30 consistently, we allowed them to stay in this position.

Also, that’s a bid of a phase-in period there where

if an individual had blood leads that were slightly above

30, she had the opportunity and we provided her with

a variety of assistance, methods of assistance to help her

to get her blood lead down below 30 within a specified

period of time to stay on-the-job.

Once that occurred, as long as blood leads could be

maintained within the guidelines of the policy, they could

stay there.

Q What about the woman whose blood leads remained

above 30?

A Women whose blood leads remained above 30 were

transferred according to the policy into jobs that would

be defined as acceptable positions; that is jobs for which

there were no air leads or blood leads indigenous to the

job above 30 in the past year. And by indigenous to the

job, I would mean the lead absorption or the exposure re-

sults from that particular job.

[157] So you would, if someone transferred into one of

those jobs from another job in the plant and had a high

blood lead as they made the move, we would exclude that

from the consideration because that high blood lead was

not developed on that job. Correspondingly, although the

situation has not yet arisen to my knowledge, if we had

knowledge of an individual who happened to have a

hobby, perhaps working with stained glass, perhaps

heavily involved in target shooting at rifle ranges or

pistol ranges, perhaps. moonlighting as a plumber some-

where where they could get lead exposure other than in

our employ, that’s something we would have to consider

toc as to whether that particular—those blood lead read- *

‘ +e

ings would be a disqualifier for someone else in that

ition. |

ae the same thing would apply to an air leads. If

an employee who normally works on that job happened

to work on another job on that given day and get air

sampled on that day, the position we’re considering

would not be penalized by the air leads incurred there.

Q For the woman who is transferred to a lower pay-

ing job, what happened to her wages?

A Any woman transferred because of this policy

would receive medical removal protection benefits.

Q What does that mean?

A As we defined them yesterday, that would be com-

pensation to assure that her earnings would not be di-

minished by that move.

Q Under the policy of the medical removal protection

benefits, are they limited to the 18 months provided for

in the [158] OSHA standard?

A No.

Q What time period does it follow?

A These benefits would apply until any ne of a

couple of things could happen. Number one, until the

woman became infertile and was no longer covere’ by

the policy and also had tiie opportunity to bid onto an-

other job that would be compensating her at a level

equal to or higher than that benchmark.

Secondly, it could occur that a woman who while

covered by the policy would be able to successfully bid

onto another acceptable job that would have a rate of

pay that would be equal to or greater than the bench-

mark of the M.R.P. benefits.

Q You referred to women on the job being allowed

to stay there if their blood leads were helow 30 even

though the job was unacceptable. Were other women cov-

ered by the policy, those women capable of bearing chil-

dren permitted to first enter those jobs?

A Where the air leads were above—

Q The blood lead of other individuals were above?

A No.

Q Why not?

Well, several things: Number one, as we discussed

earlier, in a great many of our jobs the individual work

practices of the employee in handling the product which

is the dust producing contaminant are a key factor in the

overall exposure that they receive. And this is, therefore,

going to [159] vary from individual to individual.

Moreover, we see that when an employee, either a new

employee is put into a job or an employee transfers into

a new job, that is usually the time of highest—that in-

itial period is usually the time of highest exposure and

very often the highest blood leads because their exposure

goes up until they become familiar with and master the

individual work practices that pertain to that job. And

that higher exposure usually translates into higher blood

leads as well.

[163] Q Why doesn’t the company allow the new em-

ployees to be hired into acceptable jobs or current em-

ployees to transfer in until their blood leads rise to 30

micrograms?

A Well, in a sense that’s a form of human experi-

mentation. You’re taking a risk that, if you did that.

you’d be gambling that the woman might not become

pregnant and if she did, there wouldn’t be enough lead

absorption in the mother to create a problem.

‘t’s unacceptable because, first of all, you can’t monitor

blood leads daily or even weekly. It’s an invasive tech-

nique of sampling in a vein. It’s not good medical prac-

tice to do that any more often than is absolutely neces-

sary and trying to do it on a semi-continuous basis is un-

sound. And it has the potential to seriously damage the

woman’s veins.

Secondly, as we mentioned earlier, because of work

practices, the potential for the greatest exposure is right

at the outset while the employee is learning the proper

work practices. So you’d be allowing the individual to

work at the time of greatest risk. And if the individual

remained in that position for a while, there’s going to be

a development of some body burden of lead.

Q Why not limit the policy to those women who are

planning pregnancies? . ;

(164) A A variety of reasons for that. Number one,

birth control devices are not a hundred percent effective.

Secondly, the best of intentiongand resolve can sometimes

be forgotten under the pressur®’ or the circumstances of a

given incident or moment and Thére’s too great a risk,

there’s too great a frequency of unplanned pregnancies,

which I think we all know, and maybe it’s happened to us

or it happens to our friends.

Q The policy, as I understand it, defines an unaccept-

able work station not only on the basis of blood leads but

on the basis of air leads as well; why is that?

A Number one, the employee’s exposure is variable

from employee to employee because so great a contribu-

tion is dependant upon the employee’s own practices.

Secondly, individual biological response to that expo-

sure, the amount of lead one absorbs from a given expo-

sure is going to be different. And whereas, some people

might respond in a given job very little, others may re-

spond a great deal.

Q The policy uses a single air sample or single blood

sample as a basis for determining that a job is unaccept-

able; why is that done instead of the use of a mean or

median ?

A Well, a mean or median implies a range and if you

had a random distribution, everyone would have an op-

portunity for a random high reading and random low

readings, but practically, what usually happens is your

most experienced people will usually have the best work

practices and, therefore, the lowest exposures and the

lowest blood leads. You’re newest people would usually

be at the high end of that range.

100

[165] So if you picked a job where the median or mean

was at a certain level, chances are your newest people

would be the ones that would exceed the number on the

upper end of the range and that’s basically unacceptable.

We have to make sure that we are controlling that expo-

sure and that absorption to below the levels that we have

indication are safe.

* * * .

[167] Q Did Johnson Controls consider alternatives to

addressing the problems of fetal exposure other than the

existing current fetal protection policy?

A Yes.

Q What were the alternatives and why were they

rejected?

A Number one, the voluntary guidelines that we had

in effect for five plus years which, as I mentioned earlier,

were not effective in controlling the blood leads of women

who were capable of bearing children below 30, and even

more seriously, they were not successful in preventing

pregnancies with blood leads above 30.

We’ve also, as I mentioned yesterday, have been seek-

ing for a period of time to try to develop alternate bat-

teries to low lead acid batteries and that has not been

successful.

As we were developing this particular policy, we looked

at how long we thought it would take us to be able to

engineer lead exposures down to the 30 air and to the

level that [168] we could be assured that blood leads

would be below 30 in our plants and the conclusion on

that was that there was so much that we did not know

yet in how to achieve this, that it would probably be ap-

proximately a decade at least before we could achieve

exposures that were 30 air or below throughout our

plants. ;

We are continuing to develop engineering controls and

we just this summer, as an example, have completed the

installation of a major make-up air system in the element

assembly and intercell welding departments here in the

—— .

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Fullerton plants and this type of practice is an ongoing

one for us.

We continue to look at options that may be available

and certainly are open and will continue to be open to

possible alternatives and suggestions that may offer an

opportunity to modify our present program.

Q_ In terms of the engineering controls, are those con-

trols to lower the levels of lead in the air available for

purchase and how are they developed?

A Well, typically, the concept of what you’re trying

to do of reducing an exposure at a given work station

in a given operation i

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