Amicus Curiae Brief — International Union, United Automobile, Aerospace & Agricultural Implement v. Johnson Controls, Inc.

Supreme Court, U.S,

/ } FILED

SY Wi uw 1

No. 89-1215 1]

SEPH F. SPANIOL, J

In the Supreme Court of the

OCTOBER TERM, 1989

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, ET AL., PETITIONERS

Vv.

JOHNSON CONTROLS, INC.

u V WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICI CURIAE SUPPORTING PETITIONERS

KENNETH W. STARR

Solicitor General

JOHN R. DUNNE

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

CLIFFORD M. SLOAN

Assistant to the Solicitor General

CHARLES A. SHANOR DAVID K. FLYNN

General Counsel SUSAN D. CARLE

Altorneys

GWENDOLYN YOUNG REAMS Department of Justice

Associate General Counsel Washington, D.C. 20530

LORRAINE C. DAVIS (202) 514-2217

Assistant General Counsel :

CAROLYN L. WHEELER

Attorney

Equal Employment Opportunity Commission

Washington, D.C. 20507

QUESTIONS PRESENTED

1. Whether, in a Title VII challenge to a gender-based fetal

protection policy, the bona fide occupational qualification

defense, rather than the business necessity defense, is the ap-

propriate standard for analyzing an employer’s defense of such

a policy.

2. Whether the bona fide occupational qualification defense

may justify an employer’s use of a gender-based fetal protection

policy.

3. Whether the court of appeals correctly applied the bona

fide occupational qualification defense.

(I)

TABLE OF CONTENTS

Page

Serre eee eee eee |

Ne cece weds csesscccreccecs |

I ccc wc nce ccc ccccccccces 8

Argument:

1. The only available defense to a sex-based,

facially discriminatory employment policy is

the statutory bona fide occupational

qualification defense .............cccceees 10

A. The exclusion of fertile women from

specified jobs constitutes sex-based dis-

ee ee 6 on cone asoeses 10

B. The only available defense to explicit,

gender-based discrimination is the

statutory BFOQ defense ............. 12

Il. It is possible for a sex-based, fetal protection

policy to be justified asa BFOQ ........... 16

A. Nothing in the language or scope of the

BFOQ provision precludes its use to de-

fend a fetal protection policy ......... 16

B. An employer bears a rigorous burden to

justify use of a sex-based, fetal protec-

EE ee 20

Ill. The court of appeals misapplied the bona fide

occupational qualification defense ......... 24

EES SE 27

TABLE OF AUTHORITIES

Cases:

California Federal Savings & Loan Ass'n v. Guerra,

cc cock cc sceneeeccces 20

City of Los Angeles Dep’t of Water & Power v.

Manhart, 435 U.S. 702 (1978) ............ 8, 11, 17, 23

(111)

IV

Cases — Continued: Page

Connecticut v. Teal, 457 U.S. 440 (1982) ......... 14

Diaz v. Pan American World Airways, Inc., 442

F.2d 385 (Sth Cir.), cert. denied, 404 U.S. 950

OODGED gn csccccecntanecavctececeensnness #03 21

Dothard v. Rawlinson, 433 U.S. 321 (1977) ....... 5, 8, 9,

13, 14, 15, 16, 17, 19

Griggs v. Duke Power Co., 401 U.S. 424 (1971) . .8, 11, 13

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

(i .* 3 errr errrrr eres. 4-5, 14, 18

Industrial Union Dep’t v. American Petroleum

Institute, 448 U.S. 607 (1980) ............-4.- 25

Johnson v. Mayor & City Council of Baltimore,

GRO E, Be ee biG bed casts eee rettecnssecs 23

Johnson Controls vy. California FEHC, 52 Fair

Empl. Prac. Cas. (BNA) 585 (Cal. Ct. App.

SRA Ere Cue Mees, hy ee eee Oe 8

Lorillard v. Pons, 434 Sa POPE 3 600k caeee 15

McDonnell Douglas v. Green, 411 U.S. 792

CA. iss Shere bea cab CUR Sees EER Beceeeeaees 11

Midlantic National Bank v. New Jersey Dep't of

Environmental Protection, 474° U.S. 494

REP er rere re ea ee 16

Morissette ¥. United States, 342 U.S. 246 (1952)... 16

Newport News Shipbuilding & Dry Dock Co, v.

BOC, G68 U.S. GRP GG os ve ccc vscwesnces 12

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

SD x ca-unkcanddaadsenteseeuvstecea 12, 13, 14, 23

Price Waterhouse v. Hopkins, 109 S. Ct. 1775

ID ig 606-00 c05h en eeee ee veces ese kee Fee 15, 17

Public Citizen Health Research Group v. Tyson,

te Ef tae || eer re 25

Rosenfeld v. Southern Pacific Co., 444 F.2d 1219

(9h Cir. 1971) ..... pounbwewes oes esas tdeeee 17

Teamsters v. United States, 431 U.S. 324(1977) .. 1]

Texas Dep’t of Community Affairs \. Burdine,

a, SIE 3 6s Gov odan tos Kacccceucene 11

Vv

Cases — Continued: Page

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

RRR EAL IER = eR Tipe 2 le 11, 15

United States v. Dotterweich, 320 U.S. 277

ie ee eee aba eine ks weitles 16

United States v. International Minerals & Chemical

Cs Ge Slee SUPER 65 veces cecacccces 16

United States Postal Service Bd. of Governors v.

PGT, GES as VOR CHONG vc we ci cinccesceves 23

Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224

ee ee ee eek eee wee aoe 21

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

DN Sg 750544 bed keen cinnavanctwoues 4, 8, Il,

13, 14, 15

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

SE kita eileen sad oh ch uae ed ee Oeaeee 9, 14-15,

19, 21, 23

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

ero De chee ols tue ket Saks bee ewes 4, 5, 14, 18

Statutes and regulation:

Age Discrimination-in Employment Act of 1967,

PIII, 9s c.ccvcceecentscccesse< 15

Civil Rights of Act of 1964, Tit. VII, 42 U.S.C.

icc cuahéannes bases sss tvs 0seess 1, 3

Me Peis MED og vnc cows cectee 12, 20

§ 703(a), 42 U.S.C. 2000e-2(a) ......... 8, 10, 13, 14

§ 703(e), 42 U.S.C. 2000e-2(e) ......... 3, 13, 14, 20

§ 703(e)(1), 42 U.S.C. 2000e-2(e)(1) .. 2... ... 8, 12,

13, 17, 21

Comprehensive Environmental Response, Com-

pensation and Liability Act of 1980, 42 U.S.C.

SE, Cu t's 40 0b 5 504444 C UOT KES C4 CREB Ss 16

Occupational Safety and Health Act of 1970,

ee bh. sta bc nan wens vende wns 16

Vi

Miscellaneous:

Pregnahcy Discrimination Act Pub. L. No.

95-555, 92 Stat. 2076 (42 U.S.C. 2000e(k)) .....

Resource Conservation and Recovery Act of 1976,

gE A Se eee err ee

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

OE DBM. cc ccc cers c ce seccceseseccvassevecsses

errr eT Teer rer Teer eee

124 Cong. Rec. 21,435 (1978) .......... ccc eeees

43 Fed. Reg. (1978):

W. Keeton, D. Dobbs, R. Keeton & D. Owen,

Prosser and Keeton on ihe Law of Torts (Sth

ES otro ota daekhcteennen shee bias seeen’

H.R. Rep. No. 948, 95th Cong., 2d Sess. (1978) ...

Policy Guidance on Reproductive and Fetal

Hazards, reprinted in Fair Empl. Prac. Manual

Se sty PUEEED 6-60-5060 5 ins cn econ 24 eons

Williams, Firing the Woman to Protect the

Fetus: The Reconciliation of Fetal Protection

with Employment Opportunity Goals under

Title VII, 69 Geo. L.J. 641 (1981) 2.0.0... ee,

Jn the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-1215

INTERNATIONAL UNION, UNITED AUTOMOBILE,

— AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, ET AL., PETITIONERS

Vv.

JOHNSON CONTROLS, INC.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICI CURIAE SUPPORTING PETITIONERS

INTEREST OF AMICI CURIAE

This case presents important questions concerning the mean-

ing and application of Title VII of the Civil Rights Act of 1964,

42 U.S.C. 2000e ef seq. Both the Equal Employment Opportu-

nity Commission (EEOC) and the Attorney General have signif-

icant enforcement responsibilities under the Act. The United

States, as the nation’s largest employer, is also subject to Title

VII requirements.

STATEMENT

1. Since its purchase of Globe Union in 1978, respondent

has been engaged in manufacturing batteries, a process which

requires the use of lead as a primary ingredient. In 1977, in re-

sponse to medical evidence of risks to unborn children, Globe

Union adopted a fetal protection policy for lead exposure. Pet.

App. 2a-Sa. The policy statement noted that Globe Union had

“stopped short of excluding women capable of bearing children

trom lead exposure,” but it emphasized that “those women who

2

are working in lead exposure. . . and those women who wish to

be considered for employment [should] be advised that there is

risk, that we recommend not working in lead if they are consid-

ering a family, and further that we ask them to sign a statement

that they have been advised of this risk.” /d. at Sa.

Five years later, in 1982, respondent adopted the fetal protec-

tion policy at issue in this litigation; it shifted from a policy of

warnings to a policy of exclusion.' “espondent announced its

policy that “women whe 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 exer-

cise of job bidding, bumping, transfer or promotion rights.”

Pet. App. 9a. The policy defines women capable of bearing

children as “[aJll women except those whose inability to bear

children is medically documented.” /d. at 6a n.8. The policy fur-

ther defines areas of lead exposure as areas in which (1) a cur-

rent employee has recorded a blood level of lead exposure ex-

ceeding 30 micrograms per deciliter during the preceding year,

or (2) the work site has yielded an air sample during the past

year containing a lead level in excess of 30 micrograms per cubic

meter. Jd. at Sa. The policy permits employees in areas of lead

exposure to keep their jobs if they are able to maintain certain

blood lead levels (id. at 6a n.9); it contains no such option for

new hires. Employees removed from a position because of ex-

cessive lead levels are transferred to another job without loss of

pay or benefits (id. at 6a); the policy provides no similar com-

pensation, however, tor employees denied an opportunity to ac-

cept a job in a lead exposure environment.?

2. In April 1984, petitioners filed a class action challenging

the fetal protection policy as sex discrimination in violation of

' Between 1979 and 1983, at least six of respondent's employees became

pregnant while maintaining blood lead levels in excess of 30 micrograms per

deciliter, and one of the babies born to one of these employees was found to

have an elevated blood lead level. Pet. App. 6a-7a.

> Respondent recently changed its policy in two respects. lt eliminated the

exclusion of fertile women trom jobs which could lead to transfers to lead ex-

posure jobs, and it lowered the level from 30 micrograms to 25 micrograms.

Resp. Br. in Opp. 8 n.16. Both of these changes were adopted after the case

was submitted to the court of appeals, and neither is in the record. /bid.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000¢e ef seq.

The district court certified a class consisting of past, present,

and future production and maintenance employees in UAW

bargaining units at nine of respcndent’s plants who have been

and continue to be affected by respondent’: fetal protection

policy. Pet. App. 103a.

In January 1988, the district court granted respondent’s mo-

tion for summary judgment. Applying a three-part business ne-

cessity defense derived from fetal protection cases in the Fourth

and Eleventh Circuits, the court concluded that (1) although

“there is a disagreement among the experts regarding the effect

of lead on the fetus,” the hazard to the fetus through exposure

to lead was established by “a considerable body of opinion”

(Pet. App. 113a-114a); (2) although “[e]xpert opinion has been

provided which holds that lead also affects the reproductive

abilities of men and women * * * [and] that these effects are as

great as the effects of exposure of the fetus, * * * a great body

of experts [is] of the opinion that the fetus is more vulnerable at

levels of lead that would not affect adults” and “[mJjen simply

cannot expose a fetus to lead in the same way women can” (id.

at 11Sa, 117a); and (3) petitioners had “failed to establish that

there is an acceptable alternative policy which would protect the

fetus.” Jd. at 116. The court also observed that, in view of this

disposition of the business necessity defense, it did not “have to

undertake a bona fide occupational qualification[ | (BFOQ)

analysis.” Jd. at 116a n.5.?

3. In September 1989, the Seventh Circuit affirmed in an en

bane opinion.

a. The majority held that (1) the proper standard for eval-

uating the fetal protection policy was the business necessity

defense; (2) respondent was entitled to summary judgment under

the business necessity defense; and (3) even if the proper stan-

’ The BFOQ defense provides, in pertinent part (42 U.S.C. 2000e-2(e)):

Notwithstanding any other provision of this subchapter, (1) it shall not

be an unlawful employment practice for an employer to hire and employ

~ employees * * * on the basis of [the employee's] religion, sex or national

origin in those certain instances where religion, sex, or national origin is a

bona fide occupational qualification reasonably necessary to the normal

Operation of that particular business or enterprise * * *.

4

dard was a BFOQ, respondent was entitled to summary judg-

ment. The court first reviewed the fetal protection opinions from

the Fourth and Eleventh Circuits.4 Those opinions established a

three-step business necessity defense — whether there is a sub-

stantial health risk to the unborn child; whether transmission of

the hazard to the unborn child occurs only through women; and

whether there are no less discriminatory alternatives equally ca-

pable of preventing the health hazard to the fetus. Pet. App.

25a. The Seventh Circuit agreed that “the components of the

business necessity defense the courts of appeals and EEOC have

utilized in fetal protection cases balance the interests of the

employer, the employee, and the unborn child in a manner con-

sistent with Title VII.” /d. at 27a-28a.* The court further noted

that, under Wards Cove Packing Co. v. Atonio, 109 §S. Ct. 2115

(1989), the burden of persuasion always remains on the plaintiff

in challenging a business necessity defense, and—unlike the

Fourth and Eleventh Circuits—it thus imposed the burden on

the plaintiffs for all three steps. Pet. App. 28a-3la. Cf. Hayes v.

Shelby Memorial Hospital, 726 F.2d 1543, 1549 (llth Cir.

* See Haves v. Shelby Memorial Hospital, 726 &.2d 1543 (Lith Cir. 1984);

Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982). In Wright, the court

treated a fetal protection policy as a policy with disparate impact, even though

it explicitly applied only to fertile women; in //aves, the court treated a feta!

protection policy as a policy of disparate treatment, but permitted a prima

facie case of facial discrimination to be rebutied by the elements of the

business necessity defense established in HW rigs.

* In October 1988, while this case was pending on appeal, EEOC issued a

policy statement in which it stated that “{a}lthough the BFOQ defense is nor-

mally the only one available in cases of overt discrimination, ine Commission

tollows the lead of every court of appeals to have addressed the question * * *

and concluded that the business necessity defense applies to these cases.”

Policy Guidance on Reproductive and Fetal Hazards (Oct. 3, 1988) at 4,

reprinted in Fair Empl. Prac. Manual (BNA) 405:6613, 6614-6615 [hereinafter

Policy Guidance|. EEOC noted its view, however, that the district court in this

sase had incorrectly granted summary judgment top respondent. See Policy

Guidance 9 n.22; Fair Empl. Prac. Manual (BNA) at 405:6618 n.22 (“[ T]he

district court purported to apply the Haves) WU rigit analysis. lt concluded, on

summary judgment that the exclusionary policy was justified, despite the fact

that, as we understand it, there was conflicting evidence about harm mediated

through men. In the Commission's view, when conflicting evidence exists,

summary judgment is not appropriate.”).

; o

1984); Wright v. Olin Corp., 697 v4 1172, 1187 (4th Cir.

1982).

Applying this business necessity defense, the court then con-

cluded that (1) there was no genuine issue of material fact‘on the

substantial health risk factor because the parties agreed that

there was a substantial health risk to an unborn child from lead

exposure; (2) unlike the evidence of risk to the unborn resulting

from the mother’s exposure, petitioners’ evidence of risk to the

unborn from a father’s exposure was “speculative and uncon-

vincing” (Pet. App. 34a); and (3) petitioners had waived the is-

sue of less discriminatory alternatives by not adequately pre-

senting it to the court of appeals. On the last point, the court

also concluded that, in any event, petitioners had not produced

evidence of less discriminatory alternatives in the district court.

Id. at 32a-4la.

Having concluded that the business necessity defense was the

appropriate framework and that respondent satisfied that stan-

dard, the court went on to discuss the BFOQ defense and con-

cluded that respondent also met that test. Pet. App. 42a-59a.

The en banc majority concluded that industrial safety is part of

the essence of respondent’s business, and that the fetal protec-

tion policy is reasonably necessary to further that concern.

Quoting from Dothard v. Rawlinson, 433 U.S. 321, 335 (1977),

the majority emphasized that, in view of the goal of protecting

the unborn, “more is at stake” than simply an individual

woman's decision to weigh and accept the risks of employment.

Pet. App. Sila.

b. Judges Cudahy and Posner dissented and would have re-

versed and remanded for trial. Judge Cudahy explained that

“[i]t may (and should) be difficult to establish a BFOQ here but

| would afford the defendant an Opportunity to try. * * * [T]he

BFOQ defense need not be narrowly limited to matters of

worker productivity, product quality and occupational safety.

The employer may permissibly consider the possible risks to

(even potential) third parties in the normal course of business

decisionmaking. However, the employer must demonstrate ‘a

factual basis for believing that all or substantially all women

would be unable to perform safely [i.e., without inordinate risk

to third parties, including fetuses] and efficiently the duties of

the job involved.’ ” Pet. App. 60a & n.1. He regarded a trial as

necessary because “substantial factual questions remain concern-

6

ing whether occupational exposure to lead presents a substantial

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

the pregnant woman and whether less restrictive alternatives

would adequately_safeguard the employer’s interest in fetal

health and safety.” /bid.

Judge Posner similarly emphasized that, under Title VII, a fe-

tal protection policy which explicitly applies only to women can

be defended only as a BFOQ. He also observed that Title VII

defines the defense as a “bona fide occupational qualification

reasonably necessary to the normal operation” of a business,

and that “the ‘normal operation’ of a business encompasses ethi-

cal, legal, and business concerns about the effects of an employ-

er’s activities on third parties.” Pet. App. 62a, 65a. He empha-

sized, however, that whether a particular policy is lawful is a

question of fact that should ordinarily be resolved at trial, and

cited a variety of factual questions not susceptible to resolution

on the current state of this record. /d. at 70a-74a. Like Judge

Cudahy, he stressed that he viewed it “a mistake to suppose that

we can decide this case once and fc - all on so meager a record.”

‘Id at 61a.

c. Judge Easterbrook, in a dissent joined by Judge Flaum,

concluded that BFOQ is the proper mode of analysis, but that a

fetal protection policy cannot be justified as a BFOQ. Judge Eas-

terbrook noted that BFOQ is the appropriate framework because

respondent explicitly “uses sex as a ground of decision.” Pet.

App. 75a. He then concluded that the BFOQ defense was not

available because respondent’s stated concern for the health of

the unborn was irrelevant to the “operation of [its] business”

under the BFOQ; similarly, he viewed the employer's concern as

irrelevant to a woman’s “ability or inability to work” under the

Pregnancy Discriminatiou Act’s amendment to Title /IL. /d. at

8la.°

* The Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat.

2076 (42 U.S.C. 2 Oe(k)) amended Title VII to provide, in pertinent part:

The terms “because ef sex” or “on the basis of sex” [in Tithe VIL] in-

clude, but are not limited to, because of or on the basis of pregnancy,

childbirth, or related medical conditions; and women altected by preg-

nancy, childbirth, or related medical conditions shall be treated the same

for all employment-related purposes * * * ay other persons not so af-

fected but similar in their ability or inability to work * * *.

7

Judge Easterbrook also stressed what he considered the exces-

sive breadth of respondent’s policy — it applies to all women (ex-

cept those with medical proof of incapacity to bear children) de-

spite the fact that most women in an industrial labor force do

not become pregnant, that most of those who do become preg-

nant will have blood lead levels under 30 micrograms per

deciliter, and that most of those who become pregnant with lev-

els exceeding 30 micrograms per deciliter will nonetheless bear

normal children. Pet. App. 83a-84a. As a result, “[c]oncerns

about a tiny minority of women cannot set the standard by

which all are judged.” /d. at 84a.

Finally, Judge Easterbrook concluded that, if the business ne-

cessity defense yather than BFOQ is the governing standard,

summary judgément was inappropriate, and the case should be

remanded for trial. In an extensive discussion of the evidence,

he found material factual disputes on all three of the factors ad-

dressed by the majority — whether there was a substantial risk to

fetuses from lead in the mother’s blood at the levels to which

respondent exposes its employees (Pet. App. 88a-95a); whether

harm to offspring comes only from exposure of the mother (id.

at 95a-97a); and whether there were less discriminatory alterna-

lives (id. at 97a-99a). He also emphasized that respondent’s evi-

dence was contradicted, not only by petitioners’ evidence, but

also by findings of the Occupational Safety and Health Admin-

istration (OHSA). In 1978, OSHA concluded that “both men

and women are subject to genetic damage which may affect

beth the course and outcome of pregnancy” and that “{g]iven

the data in this record, OSHA believes there is no basis whatso-

ever for the claim that women of childbearing age should be ex-

cluded from the workplace in order to protect the fetus or the

course Of pregnancy.” /d. at 93a (quoting 43 Fed. Reg. 52,966

(1978)).’

~ On January 24, 1990, EEOC issued a Policy Guidance on the en bane deci-

sion. The Commission modified its prior view that the business necessity de-

tense could apply to a fetal protection policy. See note 5, supra. In its 1988

Policy Guidance, the Commission had emphasized that, consistent with the

analysis in Wright and Haves, the burden of proving business necessity was on

the employer. Policy Guidance at 4-5 (1988); Fair Empl. Prac. Manual (BNA)

at 405:6615. In its 1990 Policy Guidance, the Commission noted that it

8

SUMMARY OF ARGUMENT

1. Respondent’s fetal protection policy explicitly excludes

women from certain employment positions on the basis of their

sex. The policy is not a facially neutral policy with a “disparate

impact” on women. Compare Griggs v. Duke Power Co., 401

U.S. 424 (1971). Rather, it is facially discriminatory, and thus

represents overt discrimination and disparate treatment under

Section 703(a) of Title VII, 42 U.S.C. 2000e-2(a). See City of

Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702,

711 (1978); Dothard v. Rawlinson, 433 U.S. 321, 332 (1977).

Such an explicitly discriminatory policy is not necessarily ille-

gal under Title VII, but may be justified under that statute only

if it is a “bona fide occupational qualification reasonably neces-

sary to the normal operation of [the] particular business or en-

terprise.” § 703(e)(1), 42 U.S.C. 2000e-2(e)(1). The court of ap-

peals incorrectly applied the business necessity defense devel-

oped in “disparate impact” cases, with its corresponding burden

of persuasion on employees. Wards Cove, 109 S. Ct. at

2125-2126. The BFOQ defense is the appropriate standard for

evaluating respondent's defense of such a facially discriminatory

policy, and the burden rests on respondent to justify the policy

had not contemplated “the Seventh Circuit’s application of the Wards Cove

business necessity standard” and the imposition of the burden on the plaintutt

to disprove business necessity; “[fJor the plaintitt to bear the burden of proot

in a case in which there is direct evidence of a facially discriminate, policy ts

wholly inconsistent with settled Tithe VII law.” Pet. App. 132a-133a. The

Commission observed that the “application of Hards Cove to a tacially

discriminatory policy has convinced the Commission that the hybrid approach

to fetal protection cases is problematic” and that “we now think BFOQ ts the

better approach.” /d. at 134a. The Commission rejected the view, however,

that the BFOQ detense is not available to defend a tetal protection policy, and

set forth the elements which it believes sisould govern such a defense. The

Commission also stated that, in its view, this case presented conthctng issues

of material fact, quoting Judge Cudahy’s statement that the “painful comples-

ities are manifestly unsuited for summary judgement.” /d. at 139a. The Com-

miss.on emphasized that “Commission investigators should not overlook or

dismiss contheting evidence on the basis of the Seventh Circun decision.” /bid.

See also Johnson Controls ». Califorma FEHC, 32 baw Empl. Prac. Cas

(BNA) 585 (Cal. Ct. App. 1990) (holding respondent's tetal protection policy

invalid under state fair employment law).

i

9

as a valid BFOQ. Western Air Lines, Inc. v. Criswell, 472 U.S.

400, 414-415, 421-423 (1985).

2. It is possible that a bona fide occupational qualification

defense can be used to sustain a sex-based fetal protection pol-

icy, but an employer defending such a policy must carry its bur-

den of justification. The language of the BFOQ provision—

“reasonably necessary to the normal operation of that particular

business or enterprise” —is not in terms limited to concerns re-

garding an employee’s effect on product quality. A concern with

direct harm to third parties from the manufacturing process is

“reasonably necessary to the normal operation of [a] business.”

Indeed, in other contexts, this Court has recognized the validity

of safety-related concerns in applying BFOQ analysis. See, e.g.,

Western Air Lines, Inc. v. Criswell, 472 U.S. at 412-417;

Dothard v. Rawlinson, 433 U.S. at 336. A contrary conclusion

that a BFOQ defense could never consider harm to third parties

from the manufacturing process would render invalid any gen-

der-based fetal protection policy, and would mean that employ-

ers could not exclude pregnant women from particular kinds of

employment, even if there was absolute certainty of harm to the

fetus from exposure to a toxic substance in the course of

employment.

To justify a gender-based feta! protection policy, however, an

employer must prove with specificity that such a policy is “rea-

sonably necessary.” This Court has outlined the elements of a

salistactor, showin, by an employer that a facially discrimina-

tory policy is a valid BFOQ. Under the standard explicated in

Criswell, the employer must show that the claimed hazard from

worker exposure is reasonably necessary to the normal opera-

tion of its business, and that the discriminatory policy is reason-

ably necessary to the operation of the particular business be-

cause it is a valid “proxy” for safety-related job qualifications

and employment procedures. Thus, the employer must prove

that the claimed hazard is genuine; that the substance or process

causing the hazard is reasonably necessary to the employer’s

business; and that worker exposure to the substance or process

causing the hazard 1s also reasonably necessary. Additionally, to

establish that the policy of distinguishing among employees on

the basis of sex is a valid “proxy” to address legitimate safety

concerns, the employer must prove that exposure of male em-

10

ployees to the claimed hazard does not create a similar degree of

risk to offspring; that all or substantially all of the excluded

class cannot perform the job safely or that individualized con-

sideration is impossible or highly impractical; and that there are

no reasonably available, less discriminatory alternatives.

Because the BFOQ is a limited exception to Title VII's general

prohibition on sex-based classifications, careful judicial atten-

tion to factual findings and disputes is essential.

3. The court of appeals misapplied the elements of the

BFOQ standard. The court failed to consider, under the BFOQ

standard with the burden properly imposed on respondent, the

evidence of possible harm to offspring from the exposure of

male employees. Establishing that exposure of men does not

pose a similar degree of risk as exposure of women is vitally im-

portant because, in the absence of such a showing, the exclusion

of fertile women cannot be a valid method for serving the em-

pioyer’s asserted interest in preventing direct harm to third par-

ties from the manufacturing process. In view of this error, and

in view of the importance of careful attention to factual findings

and disputes, the judgment should be reversed, and the case re-

manded to the court of appeals for reconsideration in light of a

clarified standard. ;

ARGUMENT

1. THE ONLY AVAILABLE DEFENSE TO A SEX-BASED,

FACIALLY DISCRIMINATORY EMPLOYMENT POLICY

iS THE STATUTORY BONA FIDE OCCUPATIONAL

QUALIFICATION DEFENSE

A. The exclusion of fertile women from specified jobs constitutes

ser-based discrimination

Section 703(a) of the Civil Rights Act of 1964 (42 U.S.C.

2000e-2(a)) prohibits sex-based classifications in the terms and

conditions of employment, in hiring and discharge decisions,

and in other empioyment decisions that adversely affect an

employee's status.* Respondent's explicit policy of excluding

* Section 703(a) provides:

It shall be an unlawful employment practice tor an employer -

“women with childbearing capacity” from lead-exposed jobs

creates a facial classification based on gender. Respondent’s

policy is not a facially neutral policy that simply has a “disparate

impact” on women. Compare Griggs v. Duke Power Co., 401

U.S. 424, 431 (1971) (disparate impact claim may be raised

against “practices that are fair in form, but discriminatory in

operation”); Wards Cove, 109 S. Ct. at 2118-2119 (same).

Rather, it explicitly uses sex as the basis for its classification and

exclusion. It is thus an overt form of “disparate treatment” be-

cause it “treats some people less favorably than others because

of their * * * sex.” Teamsters v. United States, 431 U.S. 324,

335 n.15 (1977). See also City of Los Angeles Dep’t of Water &

Power v. Manhart, 435 U.S. 702, 711 (1978) (requirement that

female employees pay more than male employees to pension fund

is facial discrimination because it “shows ‘treatment of a person

in a manner which bui for that person’s sex would be

different’ ”); Dothard v. Rawlinson, 433 U.S. 321, 332 (1977)

(exclusion of women as prison guards represents “overt discrim-

ination”).?

(1) to fail or refuse to hire or to discharge any individual, or otherwise

to discriminate againsi any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such in-

dividual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for

employment in any way which would deprive or tend to deprive any in-

dividual of employment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s race, color, religion,

sex, Or national origin.

* Because the policy by its terms discriminates on the basis of sex, there is no

need to undertake the allocation of proof suggested by cases such as McDon-

nell Douglas v. Green, 411 U.S. 792 (1973) and Texas Dep't of Community Af-

fairs v. Burdine, 450 U.S. 248 (1981); the terms of the policy itself esiablish

that sex, rather than a “legitimate, nondiscriminatory reason” (McDonnell

Douglas, 411 U.S. at 802) is the criterion for exclusion. See Trans World

Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (McDonnell Douglas test

inapplicable because employer's policy “is discriminatory on its face”). See

also Pet. App. 80a (Easterbrook, J., dissenting) (“Our case does not concern

the order of proof and methods of inference; [respondent] expressly uses sex

io make decisions.”). The fact that the asserted reason for the sex-based exclu-

sion (concern for the health of the fetus) may be benign does not prevent the

policy trom being sex-based discrimination. See pp. 13-14, wifra.

a

12

The policy’s classification on the basis of gender and child-

bearing capacity, rather than gender alone, unquestionably

remains sex discrimination. As an initial matter, the policy is

discriminatory because it requires only female employees to pro-

duce proof that they are not capable of reproducing. See Phil-

lips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (policy

of excluding only women with pre-school-age children was sex

discrimination because the policy established “one hiring policy

for women and another for men—each having pre-school-age

children”). Additionally, in the Pregnancy Discrimination Act

(PDA), Congress explicitly provided that, for purposes of Title

VII, discrimination “on the basis of sex” includes discrimination

“because of or on the basis of pregnancy, childbirth, or related

medical conditions.” § 701(k), 42 U.S.C. 2000e(k). See note 6,

supra. “The Pregnancy Discrimination Act has now made clear

that, for all Tithe VII purposes, discrimination based on a

woman’s pregnancy is, on its face, discrimination because of her

sex.” Newport News Shipbuilding & Drv Dock Co. v. EEOC,

462 U.S. 669, 684 (1983). In its use of “childbearing capacity” as

the criterion for exclusion, respondent explicitly classifies on the

basis of potential tor pregnancy; under the Pregnancy Discrimi-

nation Act, such a classification must be regarded, for Title VII

purposes, in the same light as explicit sex discrimination. See

Pet. App. 6£a (Posner, J., dissenting); id. at 75a-76a (Easter-

brook, Jr., dissenting).'°

B. The only available defense to explicit, gender-based discrimina-

tion is the statutory BFOQ defense

The only statutory. defense to explicit, facial discrimination

under Title VII is the BFOQ defense in Section 703(e)(1), 42

U.S.C. 2000e-2(e)(1). This statutory exemption provides that it

‘© The legislative history of the Pregnancy Discrimination Act contains re-

peated references to the problem of discrimination resulting trom employers’

perceptions that women may become pregnant. See, v.v., H.R. Rep. No. 948,

¥Sth Cong., 2d Sess. 6-7 (1978) (“Women are still subject to the stereotype that

all women are marginal workers. Until a woman passes the childbearing age,

she is viewed by employers as potentially pregnant.”); 124 Cong. Ree. 21,435

(1978) (statement of sponsor Rep. Hawkins) (“many of the disadvantages im-

posed on women are predicated upon their capacity to become pregnant”).

13

is not unlawful to use sex, religion, or national origin as a basis

tor employment decisions if that otherwise prohibited criterion

“is a bona fide occupational qualification reasonably necessary

to the normal operation of that particular business or enter-

prise.” 42 U.S.C. 2000e-2(e)(1). See note 3, supra. In decisions

addressing the permissibility of explicit, sex-based discrimina-

tion, this Court has considered only the possible availability of

the BFOQ defense. See Dothard v. Rawlinson, 433 U.S. at

332-337; Phillips v. Martin Marietta Corp., 400 U.S. at 544. A

conclusion that only the BFOQ defense is available to justify ex-

plicit, facial discrimination reflects the statutory structure: ex-

plicit, facial discrimination represents an unlawful employment

practice under Section 703(a) of Title VII (note 8, supra), and

may be justified only by the explicit statutory authorization pro-

vided in Section 703(e) (note 3, supra).

The business necessity defense, in contrast, developed not as

a defense to explicit facial discrimination, but rather as an ele-

ment to be considered in the context of a disparate impact

claim. “Though we have phrased the query differently in differ-

ent cases, it is generally well-established that at the justification

Stage of * * * a disparate impact case, the dispositive issue is

whether a challenged practice serves, in a significant way, the le-

gilimate employment goals of the employer.” Wards Cove, 109

S. Ct. at 2125-2126 (emphasis added). See also Griggs, 401 U.S.

at 431. This business necessity test has not, however, been em-

ployed in cases of disparate (reaiment.

Despite the explicit, facial discrimination in respondent’s fetal

protection policy, the court below concluded that the “business

necessity defense” explicated in Wards Cove was the appropri-

ate standard for evaluating the policy. Pet. App. 28a-30a. The

court emphasized that this business necessity defense was appro-

priate because respondent’s gender-based fetal protection policy

Was not instituted with the purpose of discriminating against

women. See /d. at 23a & n.25 (citing Fourth Circuit’s conclusion

that “a fetal protection policy involves motivations and con-

sequences most closely resembling a disparate impact case”

and noting that respondent’s “primary interest in this case is

14

protecting the development and health of female employees and.

their unborn children”).'' The absence of a discriminatory mo-

tive, however, does not convert a facially discriminatory policy

into a neutral policy with a discriminatory effect. The question

whether an employment practice involves disparate treatment

through explicit, facial discrimination does not depend on the

nature of the employer’s motive for adopting the practice, but

rather on the explicit terms of the practice. In Martin Marietta,

for instance, a possible benign motive did not prevent a conclu-

sion that the exclusion of women with pre-school-age children

constituted discrimination under Section 703(a), nor did it lead

to consideration of a business necessity defense; the dispositive

question became whether a BFOQ defense under Section 703(e)

could justify the discrimination. 400 U.S. at 543. See also Con-

necticut v. Teal, 457 U.S. 440, 455 (1982) (discussing Martin

Marietta). Similarly, in Dothard, the safety concerns underlying

exclusion of women as prison guards did not prevent the policy

from being sex discrimination under Section 703(a), nor did it

lead to consideration of a business necessity defense; again, the

question became whether the explicit, facial discrimination could

be justified as a BFOQ under Section 703(e). 433 U.S. at

332-333. In sum, the beneficence of an employer’s purpose does

not undermine the conc!usion that an explicitly gender-based

policy is sex discrimination under Section 703(a), and may thus

be defended only as a BFOQ under Section 703(e).

The Seventh Circuit’s application of the business necessity

doctrine rather than the statutory BFOQ defense to the facially

discriminatory fetal protection policy has important conse-

quences. The elements of the business necessity and BFOQ

standards differ in significant respects. Compare, e.g., Wards

Cove, 109 S. Ct. at 2126 (standard for business necessity defense

in disparate impact case) with Western Air Lines, Inc. vy.

'' See also Wright, 697 F.2d at 1186 (application of business necessity de-

fense appropriate because of principle that “disproportionate consequences of

an employment practice, even if unintended or indeed benignly motivated,

may, like intentional invidiously discriminatory employer actions, constitute

violations of Title VII"); Haves 726 F.2d at 1548 (employer can show that

gender-based fetal protection policy is “neutral” if “it effectively and equally

protects the offspring of all employees”).

15

Criswell, 472 U.S. 400, 412-417 (1985) (standard for BFOQ in

context of age discrimination claim).'? Most fundamentally, the

burden of persuasion in the two standards is different. In Wards

Cove, this Court explained that the burden of persuasion re-

mains on the plaintiff at all times in a disparate impact/business

necessity case. 109 S. Ct. at 2125-2126. Applying this standard

here, the Seventh Circuit imposed the burden on petitioners.

Pet. App. 32a-4la. The burden of establishing a BFOQ defense,

in contrast, rests on the employer. See Price Waterhouse v.

Hopkins, 109 S. Ct. 1775, 1789 (1989) (plurality opinion) (in

BFOQ analysis, “it is the employer who must show why it must

use gender as a criterion in employment”); id. at 1811 (Kennedy,

J., dissenting) (“In the BFOQ context this is a sensible, indeed

necessary, allocation of the burden, for there by definition sex is

the but-for cause of the employment decision and the only ques-

tion remaining is how the employer can justify it.”); Dothard,

433 U.S. at 332-337. See also Crisweli, 472 U.S. at 414-415,

422-423 (BFOQ burden of proof on employer under the

ADEA).

The court of appeals thus erred in applying a business neces-

sity defense to explicit facial discrimination and in imposing the

burden on petitioners; the only appropriate defense to explicit

facial discrimination under Title VII is a BFOQ defense, and the

burden of establishing such a defense is on respondent.

‘2? Similar standards govern the BFOQ provisions in Tithe VII and the Age

Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 ef seq.

See Western Air Lines, Inc. v. Criswell, 472 U.S. at 412-417 (noting that, in

adopting a BFOQ in the ADEA, Congress “borrow[ed] a concept and statu-

tory language trom Title VII of the Civil Rights Act of 1964” and approving

BEOQ defense for ADEA derived from Title VII precedents). See also 7rans

World Airlines, Inc. v. thurston, 469 U.S. 111, 121 (1985) (Tithe VIL inter-

pretation “apphes with equal force in the context of age discrimination, for the

substantive provisions of the ADEA ‘were derived in haee verba trom Title

Vil’ ") (quoting Lorillard \. Pons, 434 U.S. 575, 584 (1978)).

16

ll. IT IS POSSIBLE FOR A SEX-BASED, FETAL PROTEC-

TION POLICY TO BE JUSTIFIED AS A BFOQ

A. Nothing in the language or scope of the BFOQ provision pre-

cludes its use to defend a fetal protection policy

The BFOQ defense provides a limited exception to Title VII's

prohibition of sex discrimination. As this Court explained in

Dothard, “the restrictive language of § 703(e), the relevant legis-

lative history, and the consistent interpretation of the Equal

Employment Opportunity Commission” establish that “the

{BFOQ] exception was in fact meant to be an extremely narrow

exception to the general prohibition of discrimination on the

basis of sex.” 433 U.S. at 334. See also 29 C.F.R. 1604.2(a)

(EEOC Guidelines on Discrimination Because of Sex) (BFOQ

should be narrowly interpreted).

Despite the narrow scope of the BFOQ exception, there is no

legal or logical impediment to its application in this context. It

cannot be doubted that a concern with industrial safety —and

with the direct harm caused by a manulacturing process or

product —is appropriately an essential element of business oper-

ations. A broad variety of societal sanctions —ranging from

statutes and regulations to tort liability, and trom administra-

tive fines to criminal penalties—reflect the importance cf this

concern.'?

') See, e.g., 18 U.S.C. 2601 ef seg. (Toxic Substances Control Act); 29

U.S.C. 651 ef seg. (Occupational Safety and Health Act of 1970); 42 U.S.C.

6901 ef seg. (Resource Conservation and Recovery Act of 1976); 42 U.S.C.

6901 ef seq (Comprehensive Environmental Response, Compensation and

Liabiluy Act of 1980). See generally W. Keeton, D. Dobbs, R. Keeton & D.

Owen, Prosser and Keeton on the Law of Torts §§ 4, 31, 75, 95 (Sth ed. 1984);

Midlantic National Bank \. New Jersey Dep't of Environmental Protection,

474 U.S. 494, 505-506 (1986); United States \. International Minerals &

Chemical Corp., 402 U.S $58, $64-565 (1971); Morissette \. United States,

342 U.S. 246, 253-254 (1952): United States v. Dotierweich, 320 U.S. 277, 280

(1943).

Legally imposed concern tor harm to third parties includes harm to fetuses.

See W. Keeton, D. Dobbs, R. Keeton & D. Owen, supra, § 55 at 368 (every

State currently allows children born alive to recover in tort tor prenatal inju-

ries inflicted by third parties); Williams, Firing the Woman to Protect the Fe-

tus: The Reconciliation of Fetal Protecuon with Emplovment Opportunis

Goals under Title VII, 69 Geo. L.J. 641, 646 & n.24 (1981) (courts will hold

unenforceable contracts between an employee and employer waiving an un-

born child’s cause of action against the employer). There has been no deter

OD ee me

17

The statutory language of the BFOQ exception fully supports

the conclusion that a concern with direct harm to third parties

from a manufaciuring process may be analyzed under the

framework of the BFOQ. The statute provides that an employer

may show that the challenged practice is a “bona fide occupa-

tional qualification reasonably necessary to the normal opera-

tion of that particular business or enterprise.” 42 U.S.C.

2000e-2(e)(1). A concern with direct harm to third parties from

the manufacturing process fits comfortably within the scope of

an element “reasonably necessary to the normal operation of [a]

particular business or enterprise.” As Judge Posner emphasized

(Pet. App. 64a), the language of the statutory provision is not

framed in absolutes; the BFOQ provision refers to a practice

that is “reasonably necessary” (not absolutely necessary) and to

the “normal operation” of the business (not an unusual or ex-

ceptional operation of the business). Nothing in the language or

limited scope of the exception requires a view that a concern for

direct harm to third parties from the manufacturing process

must be deemed inherently incapable of being “reasonably nec-

essary” to the “normal operation” of a business. On the con-

trary, the BFOQ exception reflects “Congress’ unwillingness to

require employers to change the very nature of their operations

in response to the statute.” Price Waterhouse v. Hopkins, \09S

Ct. at 1786 (plurality opinion).'+

mination that federal or state law immunizes employers for injury to fetuses

caused by workplace conditions, or that state tort liability for harm to fetuses

is preempted by Tithe VIL. Cf. Rosenfeld v. Southern Pacific Co., 444 F.2d

1219 (9th Cir. 1971) (invalidating State’s sex-specific protective labor legisia-

tion under Title VIL). The existence of a reasonably perceived legal obligation

is distinct from a justification resting solely on economic concerns (cf. Wee

hart, 435 U.S. at 716-717), or solely on moral concerns (cf. Pet. App. 82a

(Easterbrook, J., dissenting)). It is not necessary in this case to consider

whether the latter categories of concern, standing alone, might jusiify a BFOQ

detense.

* We note that this case involves a claim of harm to third parties, not a

claim that the policy is necessary to protect the women themselves. Cf.

Dothard, 433 U.S. at 335 ("In the usual case, the argument that a particular

job ts too dangerous for women may appropriately be met by the rejoinder

that is the purpose of Tithe VII to allow the individual «oman to make that

choice for herself.”).

18

In our view, the contention that a BFOQ defense ty absolutely

unavailable for a sex-based fetal protection policy thus reflects a

misreading of the BFOQ provision of Title VIL. Judge Easter-

brook suggests that, in this context, the BFOQ provision relates

only to the “ability fo make batteries.” Pet. App. Sta. Because

harm to a fetus does not affect a woman’s ability to make a bat-

tery, the argument goes, the BFOQ detense ts unavailable. '°

The problem with this analysis is that it requiresean unduly re-

stricted view of the BFOQ provision—one which ts not sup-

ported by the language of the statute. Contrary to Judge Easter-

brook’s analysis, that language is not limited to concerns about

an employee's effect on product quality. The language of the

provision has a broader scope —it refers to a “bona tide oecupa-

tional qualification reasonably necessary to the normal opera-

tion of that particular business or enterprise.” Although a con-

cern for direct harm to third parties from the manutacturing

process may not relate to the effectiveness of an employee's job

performance in the sense of effect on product quality, such a

concern logically relates to the “normal operation” of a busi-

ness.'® Society can and does shut down businesses that inthict

harm on third parties thror their operations; a concern with

the safety of third partie: thus unquestionably “reasonably

necessary lo the normal cyeration of [a] particular business or

enterprise.”

The importance of safety to third parties, moreover, has been

recognized as an appropriate element of the BEFOQ analysis in

‘ The Fourth and Eleventh Circuits also assumed that the BEOQ analysis

would be unavailable to defend a sex-based fetal protection policy. See

Wright, 697 F.2d at 1188S 0.21; Haves, 726 F.2d at 1549

'¢ See Pet. App. 60a n.1 (Cudahy, J., dissenting) [T]he BFOQ detense

need not be narrowly limited to matiers of worker productivity, product qual-

ity and occupational satety. The employer may permussibly consider the posst-

ble risks to (even potential) third parties in the normal course of business dect-

sionmaking.”); id. at 64a (Posner, J., dissenting) (The ords * ‘normal opera-

tion’ * * * should dispel concern that consideration of all interests other than

the employer's interest in selling a quality product at the lowest pessible price

is precluded. It is possible to make batteries without considering the possible

consequences for people who might be injured Hf the manulacturing Process,

just ay ut would be possible to make batteries with slave laborers, but neither

mode of Operation would be normal.”)

19

prior decisions. In Dothard v. Rawlinson, supra, tor instance,

this Court upheld, as a BFOQ, the exclusion of women as secu-

rity guards in a particularly violent, all-male maximum security

prison, in part because “{t}he likelihood that inmates would as-

sault a woman because she was a woman would pose a real

threat not only to the victim of the assault but also to the basic

control of the penitentiary and protection of its inmates and the

other security personnel.” 433 U.S. at 336. Similarly, in Western

Aur Lines, Ine. v. Criswell, 472 U.S. at 412-447, this Court up-

held consideration of safety to passengers as an element in the

BFOQ analysis of an age limit on flight engineers. According to

Judge Easterbrook’s analysis, a case such as Criswel/ can be dis-

tinguished because the concern about the safety to passengers Is

related to the individual’s ability to “do the job.” Pet. App. 85a.

Again, however, there is no persuasive reason, under the explicit

language of the BFOQ provision, why the concern for injuries

to third parties may not include a concern for injuries to third

parties resulting directly from the manufacturing process as an

aspect of the “normal operation” of the business. Judge Easter-

brook observes that respondent “is not using sex. to avert harm

to customers” (ibid. (emphasis added)), but he fails to point to

language in the BFOQ provision suggesting that “normal opera-

tion of business” qgncerns may only be customer-directed.

In addition to lacking support in the statutory ianguage and

logical scope of the provision, the view that the BFOQ defense

is completely unavailable for a sex-based fetal protection policy

leads to harsh and incongruous results. A necessary conse-

quence of that view is that, even if there is absolute certainty

that a pregnant woman's exposure to a hazardous substance

would unalterably injure the fetus, an employer is barred by Ti-

tle VII from ad ting a policy of exclusion focused only on

pregnant women. The difference between the exclusion of fer-

tile Women and the exclusion of pregnant women is a question

ot the scope of the policy; if the BFOQ defense is unavailable at

all to defend a sex-based fetal protection policy, then it is equally

unavailable, under Title VII as amended by the Pregnancy Dis-

crimination Act, to defend a policy directed only at pregnant

20

women.!’ Nothing in the language or purpose of the BFOQ re-

quires this result.'*

B. Anemployer bears a rigorous burden in justifying use of a sex-

based, fetal protection policy

The standards for the BFOQ defense in the context of a fetal

protection policy can be readily derived trom this Court’s exphi-

cation of the BFOQ standard in other contexts. Application of

the standards in this context suggests that the employer's burden

is exacting, and that the defense must be supported by specific

factual showings.

As an initial matter, and as has been discussed, it is critically

important that the employer bear the burden of proot in estab-

lishing this BFOQ detense. The BFOQ detense ts a limited eX-

ception provided by Tithe VII to its general prohibition of sex-

Cf. Pet. App. 64a (Posner, J., dissenting) (* Lo conting the occupational

qualification defense to concerns with price and product quality would deny a

defense to [respoadent] even if the company excluded only pregnant women,

as distinct from: all women who might become pregnant, trom making bat-

teries.”).

'* Becavse 4 BFOQ detense under Section 703(¢) can include concern tor

harm to third parties trom direct exposure to the Manalacturing Process,

moreover, Judge Easterbrook’s Pregnancy Discrimination Act (§ 701(K)) ob-

jection (Pet. App. 82a, 85a) ty also met. The structure and language of Section

FOLK) — ticluding its definition of pregnancy-based discrimination as sex dis-

crimination tor purposes ot Tithe VIE and its provision that “women attected

by pregnancy, childbirth, or related medical conditions shall be treated the

same tor all employment-iclated purposes * * * ay other persons not so al-

fected but similar in thei ability or inability to work” —require that preg-

nancy -based discrimination be treated like other forms of sex discrimination in

Tithe VII; like other forms of sex discrimination, pregnancy -based discrimina-

tion is thus subject to the general BFOQ defense. Nothing in Section 701K)

suggests a special exemption trom Section 703(c); indeed, the language of the

provision suggests exactly the contrary because, within the context of Tithe

Vil, it puts pregnancy-based discrimination on the same fooung as other

forms of sex discrimination. The applicability of Section 703(e) Lo pregnancy

as a form of sex discrimination within the context ot Title VEPs provisions

is, Of course, distinet trom the tssue of the permissibility of state statutes

according special benetits to pregnaney. Ch. Culiforna Federal Savings &

Loan Ass'n \. Guerra, 479 U.S. 272 (1987) (upholding state law pregnanes

leave provision)

21

based discrimination, and, as such, the burden must be borne

by the employer asserting the exception. See pp. 14-15, supra.

The statute provides a defense to an employer who shows that

its facially discriminatory policy is “a bona fide occupational

qualification reasonably necessary to the normal operation of

{its} particular business or enterprise.” 42 U.S.C. 2000e-2(e)(1).

In the context of a safety-related BFOQ defense to a claim of

age discrimination from the exclusion of flight engineers over

the age of 60, this Court in Criswel/ parsed this language as pos-

ing two basic inquiries: (1) whether the objective served by the

policy is “reasonably necessary to the normal operation of the

particular busihess,” as opposed to being “peripheral to the cen-

tral mission of the employer’s business,” '’ and (2) whether the

discriminatory aspect of the qualification is itself reasonably

necessary, as Opposed to being merely “convenient” or “reason-

able” —7.e., is the employer “compelled to rely on [the discrimi-

natory factor] as a proxy for the safety-related job qualifica-

tions validated in the first inquiry.” 472 U.S. at 413-414. This

“proxy” factor, in turn, could be established if the employer

proved either that it had a factual basis for believing that “all or

substantially all [persons in the excluded category] would be

unable to perform safely and efficiently the duties of the job in-

volved” or that “it is impossible or highly impractical to deal

with the [excluded] employees on an individualized basis.” /d. at

414 (internal quotation marks omitted).

This standard should be applied to the context of fetal protec-

tion policies. First, the employer must establish that avoidance

oft the claimed hazard is “reasonably necessary to the normal

operation of the particular business.” Criswel/, 472 U.S. at 413.

* The Court in Criswel/ also quoted the Fitth Circuit’s statement in Usery v.

Tanuamu Trail Tours, Inc. , $31 F.2d 224 (1976), that the qualification invoked

by the employer “must be reasonably necessary to the essence of his business.”

472 U.S. at 413 (emphasis in Fifth Circuit opinion). The Criswel/ Court tur-

ther noted the Fitth Cirguit’s decision in Diaz v. Pan American World Aur-

wavs, Inc., 442 F.2d 385, cert. denied, 404 U.S. 950 (1971), holding that a fe-

male-only qualitication tor theht attendants, detended on the grounds that

“the airline’s passengers preterred the ‘pleasant environment’ and the ‘cosmetic

etlect provided by temale attendants,” was not a valid BEOQ because it was

* ‘tangential to the essence of the business involved.’ " 472 U.S. at 413 nds.

In this context, the employer thus must establish that the qiaimed

hazard is, in fact, a genuine hazard —that worker exposure to

the claimed hazard leads to a substantial risk of injury to the fe-

tus. The employer must also establish that the substance o1

process causing the claimed hazard ts itsell reasonably necessary

to the normal operation of its business. Finally, the employer

must establish that exposure to the claimed hazard ts also rea-

sonably necessary to the normal operation of its business. y

Second, the employer must establish that the policy ts reason- .

ably necessary to the particular business because the employer ts '

compelled to rely on the discriminatory criterion as a “proxy” ese

for safety-related qualifications and procedures that would

avoid the claimed hazard. As an initial matter, it is essential that

the employer establish that the exposure of male employees to

the claimed hazard does not present a similar degree of risk of

harm to offspring; if exposure of men does lead to a similar de-

gree of risk, the exclusion of women cannot be a valid “proxy”

for addressing the asserted safety concerns. As in Criswel/, the

employer must also establish either that “all or substantially all”

of the excluded group cannot perform the job without jeopard-

izing the safety of the tetus, or that it is “impossible or highly

impractical” to assess satety on an individualized basis.?° Fi-

nally, the employer must prove that the policy it has adopted

eliminates the risk while excluding the narrowest possible group

of employees, and that there are no reasonably available, less

discriminatory alternatives.

These particularized inquiries are essential to assure that tetal

protection policies are narrowly tailored to accomplish legiti-

mate goals without sacrificing the rights of individuals to be tree

from discrimination. “The statute’s focus on the individual is

unambiguous. It preclud)s treatment of individuals as simply

components of a racial, resigious, sexual, or national class. * * *

Even a true generalization about the class ts an insufficient rea-

26 [tas likely that, in justifying fetal protection policies, the nmpossibility-ot-

individual-assessment claim will be more pertinent than the all-or-substantially-

all-cannot-pertorm claim. L niess the employer has 4 tactual basis tor believing

that (1) all or substantially all of the excluded women will bear children and (2)

harm will be transmitted to the tetus through all or substantially all of the ex-

cluded women, the all-or-substanually-all claim will be unas ailing.

son for disqualifying an individual to whom the generalization

does not apply.” City of Los Angeles Dep't of Water & Power v.

Manhart, 435 U.S. 702, 708 (1978). “Practices that classify em-

ployees in terms of religion, race, or sex, tend to preserve tradi-

tional assumptions about groups rather than thoughtful scrutiny

of individuals.” /d. at 709. To assure that an exclusionary policy

is accepted only with a rigorous justification, and to assure that

the narrowest possible group is affected by such an exclusionary

policy, an employer thus must prove the specific correlation be-

tween the identified hazard and the basis for exclusion.

As a result, the importance of careful factual findings must

also be emphasized. Title VII cases are, of course, subject to the

same rules of procedure and practice as other areas of civil liti-

gation. United States Postal Service Bd. of Governors vy.

Aikens, 460 U.S. 711, 716 (1983); id. at 718 (Blackmun, J., con-

curring). Nevertheless, the emphasis which Judges Cudahy and

Posner placed on the importance of factual findings in this area

(and the emphasis which Judge Easterbrook placed on the

importance of factual findings in his alternative argument (Pet.

App. 88a-99a)) is entirely appropriate. The BFOQ analysis of

sex-based, fetal protection policies is a “novel and difficult” area

in Which “careful examination of the facts as developed by the

full adversary process of a trial” is likely to be particularly im-

portant. Pet. App. 73a (Posner, J., dissenting). This emphasis

on the importance of factual findings is fully consistent with

concerns expressed by this Court in other BFOQ cases. See,

v.g., Criswell, 472 U.S. at 423 (employer’s argument concerning

its experts’ conclusions “virtually ignores the function of the

trier Of fact in evaluating conflicting testimony”); JoAnson v.

Mayor & City Council of Baltimore, 472 U.S. 353, 362 (1985)

(BFOQ in age discrimination context requires a “particularized,

factual showing”); Phillips v. Martin Marietta Corp., 400 U.S.

542, 544 (1971) (employer’s BFOQ justification was a “matter of

evidence” and “[s}ummary judgment was therefore improper”).

Such concerns are particularly salient in the sensitive area of

fetal protection policies.

24

Wt. THE COURT OF APPEALS MISAPPLIED THE BONA

FIDE OCCUPATIONAL QUALIFICATION DEFENSE

Although the court of appeals upheld respondent’s gender-

based fetal protection policy on the alternative ground that i

satistied the BFOQ standard (Pet. App. 42a-59a), the court mis-

applied the elements of that defense. The most glaring error —

and an error of sufficient magnitude to require reversal —is that

the court of appeals tailed to consider, under the BFOQ stand-

ard and with the burden on respondent, petitioners’ evidence of

harm to offspring trom the exposure of males.?'! As has been

discussed, a showing that a similar degree of risk is not created

by the exposure of men is central to an employer's BFOQ de-

fense, and to the validity of the use of the sex-based criterion as

a proxy for individualized consideration. °°

The court of appeals did consider petitioners’ protfered evi-

dence regarding the effects of exposure of men, but it did so

only in the context of its principal holding that petitioners had

failed to carry ‘heir burden with regard to the business necessity

defense. Pet. App. 33a-36a.2 The court first noted that re-

2) We note that the dissenting Judges concluded that, im addition to con-

flicting evidence regarding the consequences from the exposure of men, the

record also contains material conflicts and gaps regarding the nature of the

risk to the fetus and the possibility of less discrimimatory alternatives, in-

cluding improved warnings, alternative employment opportunities, in-

dividualized monitoring, and increased emphasis on industrial hygiene,

employee education, and respirators. See Pet. App. 60a n.1 (Cudahy, J.,

dissenting); id. at 70a-73a (Posner, J., dissenting); id. at 88a-9Sa, 97a-99a

(Easterbrook, J., dissenting). We take no position on whether these issues

have been properly presented or preserved in this litigation of in the petition

(ct. Resp. in Opp. 19-25; Pet. Reply Br. 3-9), but we emphasize that these are

precisely the kinds of issues which are vitally important tor evaluating the

validity of a gender-based tetal protection policy, and which require caretul,

precise factual findings. See pp. 22-23, supra.

We note also that OSHA concluded in promulgating ity occupational lead

e\posure standard in 1978 that, in hight of the evidence betore i, there Was “no

basis whatsoever for the clam that women of childbearing ave should be ev-

cluded from the workplace in order to protect the tetus or the course of

pregnancy.” 43 Fed. Rev. $2,966. Instead, OSHA emphasized the use of

Various protective measures. /d. at 54,423. OSHA's 1978 conclusions, while

not dispositive Of the issues in this case, nevertheless represent important

evidence in this type of litigation.

22 ft would, of course, not invalidate respondent's policy if exposure of men

to lead created some risk to offspring, but the risk was substantially more at-

tenuated than the risk posed by exposure of women to the same hazard,

2) Pettioners had submitted evidence in support of then argument that ex-

posure of men to lead also created potential hazards tor oftypring. See Pet.

25

spondent’s experts “testified that a male worker's exposure to

lead ai levels within the 50 [microgram/deciliter] maximum set

forth in OSHA’s current (1978) lead exposure guidelines did not

pose a substantial risk of genetically transmitted harm from the

male to the unborn child.” Pet. App. 33a. The court then ob-

served that petitioners’ witnesses “posited that animal studies

had demonstrated that there was a possible risk of genetic

damage to human offspring as a result of male lead exposure”

(id. at 33a-34a), but that petitioners had not “presented any

medical evidence in the record of any human study scientifically

documenting genetic defects in human beings resulting from

male lead exposure” (/bid.), and that their experts’ research was

“at best, speculative and unconvincing.” /bid.

In rejecting the significance of petitioners’ evidence, the court

repeatedly emphasized that, under its application of “the Title

Vil disparate impact/business necessity proof scheme” (Pet.

App. 34a), petitioners bore the burden of persuasion. /d. at 29a,

31a, 34a-35a. The court thus mistakenly considered the evidence

of exposure to men under the business necessity defense, with

the burden placed on petitioners.?+

In its alternative holding that respondent had satisfied the

BEOQ, the court then failed to consider, under that standard

App. 95a (kasterbrook, J., dissenting) ("Three affidavits in the record, and

papers in medical journals, maintain that lead in the blood creates risks tor

olfspring of both male and temale employees”). See alyo J.-A. 261 (Silverstein

Att.) (On the basis of the animal and human data, damage to the male can in-

clude maltormed and dystunctional sperm, chromosomal damage and aberra-

tions and testicular damage. Detects in reproductive functions that are associ-

ated with lead exposure include fetal death * * *, sterility, low birth weight,

birth detects ay well ay developmental abnormalities in offspring. Some of

these risks can be associated with blood lead levels in males and temales as low

as 20 micrograms * * *"); J.A. 249 (Legator Dep.) (“There are very few chemi-

caly that we know of * * * where there is evidence that would indicate the ex-

poxure to the male hay an effect on spermatogenesis which can then be trans:

mitted to the progeny * * * and lead falls into this group that has an ettect as

lar ay We Now know trom the literature, on spermatogenests.”).

“* To the extent that the court of appeais’ decision may be read ay holding

that animal studies are never probative (Pet. App. 34a), we disagree. The reli.

ance on well-conducted animal studies in establishing mandatory health stand.

ards, and by analogy in evaluating the validity of exclusionary tetal protection

policies, sy proper. See Industrial Union Dep't s. American Petroleum In-

itule, 448 US. 607, 657 1.64 (1980) (plurality opinion), Publi Cricen Health

Research Group \. Tyson, 796 F.2d 1479, 1488-1489, 1496-1497 (DOO Cur

1YR6).

26

and with its imposition of the burden on respondent, the evi-

dence of the consequences from the e,posure of men. Although

the court appeared to recognize that the burden of establishing

the BFOQ was on respondent (Pet. App. 52a-53a, 58a-59a), the

court discussed only evidence that (1) exposure of pregnant

women created a risk to fetuses (/d. at 53a); (2) exposure of fer-

tile women created a risk to fetuses (/bid.); (3) respondent’s use

of a 30 micrograms per deciliter level of lead in the blood was

appropriate (id. at 54a); and (4) there had not been a “convinc-

ing exposition in the record of any suitable alternative” (id at

§8a). The court simply failed to consider, under the BFOQ

standard with its reallocation of the burden, the evidence con-

cerning harm trom the exposure of males.*> This element, how-

ever, is an essential element of an employer's burden in justify-

ing a BFOQ defense, and the court of appeals’ tailure to con-

sider that evidence in light of thac burden represents a funda-

mental error in its analysis.

Because the court of appeals failed to consider this critical ele-

ment of the BFOQ defense with the burden placed on respond-

ent to justify its policy, and because the nature of the BFOQ

defense in this area requires careful attention to precise factial

findings and disputes, the case should be remanded to the cou:!

of appeals for further consideration in light of a clarified stand-

ard for evaluating the defense of a sex-based fetal protection

policy.

>> At the outs t of its BEOQ discussion, the court made one reference, in

the context of discussing the nature of respondent's business, to the harm

posed to “the offspring of temale employees.” Pet. App. 48a. In light of the

dispute regarding evidence of harm from exposure of males — and in light of

the importance of that dispute —this conclusory reterence to the “ottspring of

female employees” cannot substitute for a considered analysis of the evidence

of effects from the exposure of men, with the burden placed properly on re-

spondent, rather than on petitioners. Nor can the court’s reference to the lack

of available alternatives Ud. at 58a) be construed as encompassing a considera-

tion of the evidence relating to exposure of men with the burden properly on

the employer; in its business necessity defense analy sis (with the burden on the

petitioners), the court explicitly considered the evidence of exposure of men

and the possibility of less restrictive alternatives ay distinct subjects. Compare

id. at 33a-36a with id. at 36a-4la.

27

CONCLUSION

The judgment of the court of appeals should be reversed and

the case remanded for further proceedings.

Respectfully submitted.

KENNETH W. STARR

Solicuor General

JOHN R. DUNNE

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

CLIFFORD M. SLOAN

Assistant to the Solicitor General

DAVID K. FLYNN

SUSAN D. CARLE

Attorneys

CHARLES A. SHANOR

General Counsel

GWENDOLYN YOUNG REAMS

Associate General Counsel

LORRAINE C, DAVIS

Assistant General Counsel

CAROLYN L. WHEELER

Atiorney

Equal Employment Opportunity Commission

JUNE 1990

US GOVERNMENT PRINTING OFFICE 1990— 262 20300926