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

No. 89-1215

IN THE ; we 1 Oo

Supreme Court of the United St F. SPANIOL, JF

OCTOBER TERM, 1989 t . —

>

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, ef ai.,

Petitioners,

—_V—

JOHNSON CONTROLS, INC.,

Respondent.

BRIEF AMICUS CURIAE IN SUPPORT OF PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT BY AMERICAN CIVIL LIBERTIES

UNION AND ACLU OF WISCONSIN; AMALGAMATED CLOTHING

& TEXTILE WORKERS UNION; AMERICAN ASSOCIATION OF UNI-

VERSITY WOMEN; AMERICAN FEDERATION OF STATE, COUNTY

& MUNICIPAL EMPLOYEES; AMERICAN PUBLIC HEALTH ASSO-

CIATION; AMERICAN SOCIETY OF LAW & MEDICINE; CENTRAL

NEW YORK COUNCIL ON OCCUPATIONAL SAFETY & HEALTH;

COALITION OF LABOR UNION WOMEN; COMMITTEE FOR RE-

SPONSIBLE GENETICS; COMMUNICATION WORKERS OF AMER-

ICA; EMPLOYMENT LAW CENTER; ENVIRONMENTAL DEFENSE

FUND; INTERNATIONAL CHEMICAL WORKERS UNION; MASSA-

CHUSETTS COALITION FOR OCCUPATIONAL SAFETY & HEALTH

(MASSCOSH); NATIONAL ABORTION RIGHTS ACTION LEAGUE;

9 TO 5 NATIONAL ASSOCIATION OF WORKING WOMEN;

{Amici Continued On Inside Cover)

MARLA HASSNER JOAN E. BERTIN

30 Rockefeller Plaza (Counsel of Record)

New York, New York 10112 ELISABETH A. WERBY

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

132 West 43rd Street |

New York, New York 10036

(212) 944-9800

Attorneys for Amici Curiae

Of Counsel

LL LL LLL CS TL

¥$ PA

NATIONAL BLACK WOMEN’S HEALTH PROJECT; NATIONAL

ORGANIZATION FOR WOMEN, INC.; NATIONAL WOMEN’S

HEALTH NETWORK; NATIONAL WOMEN’S LAW CENTER;

NATIONAL WOMEN’S POLITICAL CAUCUS; NATURAL RE-

SOURCES DEFENSE COUNCIL; NEW YORK COALITION ON OCCU-

PATIONAL SAFETY & HEALTH (NYCOSH); NONTRADITIONAL

EMPLOYMENT FOR WOMEN (NEW); NORTH CAROLINA OCCUPA-

TIONAL SAFETY & HEALTH PROJECT (NCOSH); NOW LEGAL DE-

FENSE & EDUCATION FUND; OCCUPATIONAL SAFETY & HEALTH

LAW CENTER; OIL, CHEMICAL & ATOMIC WORKERS INTERNA-

TIONAL UNION; PHILADELPHIA AREA PROJECT ON OC-

CUPATIONAL SAFETY & HEALTH (PHILAPOSH); PLANNED PAR-

ENTHOOD FEDERATION OF AMERICA, INC.; ROCHESTER COUN-

CIL ON OCCUPATIONAL SAFETY & HEALTH (ROCOSH); SANTA

CLARA CENTER ON OCCUPATIONAL SAFETY & HEALTH (SC-

- COSH); SERVICE EMPLOYEES INTERNATIONAL UNION; SILICON

VALLEY TOXICS COALITION; UNITED MINE WORKERS OF AMER-

ICA; WESTERN NEW YORK COUNCIL ON OCCUPATIONAL

SAFETY & HEALTH (WNYCOSH); WIDER OPPORTUNITIES FOR

WOMEN; WOMEN EMPLOYED; WOMEN’S LAW PROJECT; WOM-

EN’S LEGAL DEFENSE FUND; NICHOLAS ASHFORD, J.D., PH.D.;

DAVID BELLINGER, PH.D.; EULA BINGHAM, M.D.; MARK CUL-

LEN, M.D.; PHILIP J. LANDRIGAN, M.D.; MARVIN S. LEGATOR,

M.D.; DONALD, MATTISON, M.D.; HERB NEEDLEMAN, M.D.;

JOHN F. ROSEN, M.D.; JEANNE STELLMAN, PH.D.; and DIREC-

TORS OF OCCUPATIONAL MEDICINE PROGRAMS (EDDY

BRESNITZ, M.D.; STEVE HESSL, M.D.; PHILIP J.

LANDRIGAN, M.D.; LAURA WELSH, M.D.)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....... « » ahh

INTEREST OF AMICI CURIAE ..... e e' ek

ee > © ot

REASONS FOR GRANTING THE WRIT. «4

I. THE CASE PRESENTS ISSUES OF

GREAT PUBLIC IMPORTANCE ..... 4

A. The Case Is Of Critical

Importance To Working Women

and their Families ......7

B. This Case Is Important To

The Development Of Rational

Workplace Health Policy. .. 16

II. ‘REVIEW IS NEEDED TO RESOLVE

CONFLICTS AMONG THE CIRCUITS

REGARDING THE CONSTRUCTION AND

APPLICATION OF TITLE VII OF THE

CoVam MiGwee ACT. . ...cwcae 31

A. Review Is Needed To Clarify

The Meaning The PDA. .... 32

B. Review Is Required To Define

The BFOQ Defense ...... 38

C. Review Is Necessary To Provide TABLE OF AUTHORITIES

Guidance To The Enforcement

agemey . ww i ew ttl el we Cases Page

ee ee ee a oe

422 U.S. 405 (1975). . «© « «© © © o's « 37

Chambers v. Omaha Girls Club, Inc.,

834 F.2d 697 (8th Cir. 1987) ..... 41

7} ae 528 P.2d .205 (Kan.

i | Ee ; Se ee ae

Connecticut y.—Tsal. 457 U.S. 440

(1982) 7 >. — . > . > _ >. >. > > 37

Diaz v. Pan American World Airways,

442 F.2d 385 (5th Cir.), cert. denied,

606 GsBs OER. CRRA s © « © wo 0 eo eo wo SF

Dothard v. Raw wLADEGI on, 433 U.S. 321

(1977)5, . . * *. 7. . . . . De 41

EEOC v. University of Pennsylvania,

U.S. , 58 U.S.L.W. 4093

(eeeeery GD, S9RB)s © «© wo eo et ewe ew ea

Fernandez v. Wynn Oil Co. 653 F.2d 1273

(9G Cat. AGER). « « « . es o « 46

Grant v. General Motors, aneea. filed

(6th Cir., No. 89-3478)... ‘ > of

oiie -iii-

Hayes v. Shelby Memorial Hospital,

726 F.2d 1543 (11th Cir. 1984)

wadileele ces 6 ee eee ee OS, MoM, BM

Vv ’

459 N.Y.S.2d 814 (N.Y. App. 1984). . . 29

't W W Vv.

Mannars.. 435 U.S. 702 (1978)

. . *e . . 7 . . . > Ade 36, 37

Mullex_y. Oregon, 208 U.S. 412

(1908) > . . 7 o . . . . . . . 15

Needham v. White Laboratories, 847

F.2d 355 (7th Cir. 1988), cart. ‘denied,

454 U.S. 927 (1981)... . . 29

Newport News Shipbuilding and Dry Dock v.

E.E.0.C., 462 U.S. 669 (1987). ... . 34

t*

Oil, Chemical & Atomic Workers Internat'1l

Union v._American Cyanamid Co.., 741 F. eA

444 (D.C. Cir. 1984)... ° a

Orr v. Orr, 440 U.S. 268 (1979)... . 37

Price-Wa ouse v opkins,

U.S. , 109 S.Ct. 1775 (1989)

Reiser v. Lohner, 641 P.2d 93

f a a ea

Roberts v. Patel, 620 F. Supp. 323

(B.D. Til. 3905) «2s «© ec eo wo eo wo eo oe OD

5

ucker v. Hi u io ids Board,

669 F.2d 1179 (7th Cir. 1982). ... . 40

-iv-

WwW i j 4 urston,

Con wees Ban Geeeele-+.« © « « © 6 6 e 37

Tullis v. Lear School, Inc., 874 F.2d

aGGe Gane Gale Beeic « «© 6 ott et we ew 4

United Steelworkers of America v.

Marshall, 647 F.2d 1189 (D.C. Cir. 1980),

cert. denied, 453 U.S. 913 (1981). . . 23

Walker v. Merck & Co., Inc., 648

F. Supp. 931 (M.D. Ga. 1986), aff'd,

831 F.2d 1069 (llth Cir. 1987) .... 29

mS MS OK See

U.S. , 109 S.Ct. 2115 (1989). . .5

Washington v. bayis, 426 U.S. 229

[aevGn.» «se s ete aes atk ee oo SS

Western Air Lines, Inc. v. Criswell,

GTa Gems GOS CBeeels « «© ts ew oe 6 23, 40

Wright v. Olin Corp., 697 F.2d 1172

(4th Cir. Beebe 6 «& s 9, 28, 35, 36,38

ni Vv. unt ospital,

692 F.2d 986 (5th Cir. ee 6 6 e's

Statutes

Occupational Safety and Health Act,

ee eS ee eee | |

Pregnancy Discrimination Act

ee) passim

-V=-

Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§2000e, et seq.

U.S. Department of Labor, Occupational

Safety and Health Admin., Occupational

Exposure to 1,2-Dibromo-3-Chloropropane

(DBCP), 43 Fed. Reg. 11514

(eeeers « Wese << ee 6 Be Ws dé 6 8

Preamble to the Final Standard For

Occupational Exposure to Lead, 43 Fed.

Re; Beeees: Caeeee 6s < wie «ce 6-4 22

EEOC Proposed Rulemaking: Interpretive

Guidelines on Employment Discrimination

and Reproductive Hazards, 45 Fed. Reg.

7514 (1980). (Proposed Guidelines

Withdrawn, 46 Fed. Reg. 3916). .... .7

EPA Regulation of Fuels and Fuel Additives,

Supplemental Notice of Proposed Rulemaking,

50 Fed. Reg. 9401 (1985)........ 22

EPA Intent to Cancel Registrations of

Pesticide Products containing

Dibromochloropropane (DBCP), 50 Fed.

Ris Bee eee até 6 Gc 8S 8 6 hs

EPA Proposed Guidelines for Assessing Male

Reproductive Risk, 53 Fed. Reg. 24850

(1988) * o . . . . . 7. . . . . . . > . 25

EPA Proposed Amendments to the Guidelines

for the Health Assessment of Suspect

Developmental Toxicants, 54 Fed. Reg.

9386, 9389 (1989) eo © 0'« 29, 2p, 26, 327

Final Standard for Occupational Exposure

to Lead, Medical Surveillance Guidelines,

229 C.F.R. §1910.1025, Appendix c

I ar ge i/o

Miscellaneous

Ass'n of Schools of Public Health and

National Institute for Occupati_nal Safety

and Health,

Proposed National Strategies

for the Prevention of Leading Work-Related

D J | I j >

, Part 2

eT aS ae

te

Becker, From Muller v. Oregon to Fetal

yuinerability Policies, 53 U. Chi. L. Rev.

1219 (1986)... ‘

-7,

8,

9

, 14,

21

31

Binsacca et al., Factors Associated with

Low Birth Weight in an Inner City

opu :

ES baoGee ois ws

Cia

Problems, 77 Am. J. Pub. Health 505

14

Bureau of the Census, U.S. Department of

Commerce, Current Population Reports,

Series P-20, No. 427, Fertility as American

Women: June 1987 (1988).

Bureau of the Census, U.S. Department of

Commerce, Special eg Analyses,

CDS-80-8, Wome

Change (1983). — e 6

ee

ecades of

Bureau of National Affairs, Pregnancy _

and_ Employment: The Complete Handbook

-vii-

av

nd

10

INTEREST OF AMICI CURIAE

This brief amici curiae is submitted

pursuant to Rule 37.2 of the Rules of this

Court and is filed in support of

Petitioners.+/

Amici are organizations and individu-

als concerned about the pervasive policies

of enrloyers such as Johnson Controls which

exclude virtually all women from jobs

involving alleged hazard to a potential

fetus. Amici have significant expertise

that may assist the Court in this case.

Specifically, both individually and

collectively, amici are knowledgeable about

the nature and extent of sex-based

exclusionary practices nationwide, and

i/ The Parties have consented to the filing

of this brief, and their letters of consent are

being filed with the Clerk of this Court pursuant

to Rule 37.2 of the Rules of this Court.

-j-

their effects on the employment rights and

health status of all workers.2/

INTRODUCTION

The majority of an en banc panel of

the seventh Circuit has concluded, over the

vigorous dissents of four of its members

(Judges Cudahy, Easterbrook, Flaum and

Posner), that Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§2000e, et seg., as

amended ("Title VII"), does not prohibit an

employment policy that restricts opportuni-

ties for women who are willing and able to

work, because of the chance that they may

become pregnant and that a workplace hazard

may harm the fetus. In a radical departure

from Title VII law, the court below further

concluded that the victims of discrimi-

2/ Individual statements of interest for the

amici are set forth in an Appendix to this brief.

-2-

nation bear the burden of proving the

policy's invalidity.

The court was asked to review a grant

of summary judgment, on a limited record

containing material disputes about the

employer's evaluation of the risks of

employment. Instead of applying the

statute as written or remanding for further

factual development, the court discredited

the plaintiffs' evidence demonstrating that

the policy is scientifically insupportable

and held that they had not met the newly-

imposed burden of proof.

Review by this Court is a to

Clarify the application of Title VII to

such sex-based policies, since the courts

of appeals have adopted divergent posi-

tions. With regard to burden of proof, the

Seventh Circuit's holding conflicts with

those of the Fourth and Eleventh Circuits

and is inconsistent with recent decisions

of this Court. Finally, although the court

below has placed risk assessment at issue,

it has limited the scope of the inquiry in

a manner that is at odds with scientific

principles and conclusions.

The implications of the case for

women's employment rights under Title VII

are manifest. Less apparent, but equally

significant, are its ramifications for the

overall assessment and management of work-

place health hazards and for the way in

which private dispute resolution affects

the development of public health policy.

REASONS FOR GRANTING THE WRIT

I. THE CASE PRESENTS ISSUES OF GREAT

PUBLIC IMPORTANCE. .

On a record described by Judge Posner

in dissent as a ."tissue of speculation,"

Pet.App.72a, the Seventh Circuit has

concluded that an employer who plainly

-4-

restricts the employment rights of women?/

did not violate Title VII's prohibition on

discrimination in employment, because the

workers themselves did not prove that the

employer's policy was invalid.4/ Instead,

the court openly deferred to the employer's

decision that it was better for women as a

3/ Johnson Controls' policy has a "striking

sweep." Pet.App. 97a (Easterbrook, J., dissenting).

All women are required to disclose whether they are

fertile or sterile. No woman physically capable of

conceiving will be placed in a job in which any

employee has had a blood lead level exceeding

30ug/dl anytime during the past year or in any job

that might lead to a promotion to such a job. "As

a practical matter, this means every industrial job

at Johnson's battery plants. The firm advised its

hiring offices to tell women that 'we have no open-

ings for women capable of bearing children.'" Id.

4/ Under Title VII, the employer has always

borne the burden of proof to justify a demonstrably

discriminatory policy. E.g., Dothard v. Rawlinson,

433 U.S. 321 (1977). That rule has been altered in

cases involving disparate impact, but not in those

involving intentional discrimination. Compare

_ U.S. 9

Wards Cove Packing Co. v. Atonio

109 S.Ct. 2115 (1989) with Price-Waterhouse v.

Hopkins, U.S. __, 109 S.Ct. 1775 (1989) (mixed

motive). Notwithstanding its questionable

relevance, the court below retroactively applied

Wards Cove to this case.

class to be sterilized, unemployed, or

underemployed, than to risk exposing even a

potential fetus to workplace hazards. By

requiring courts applying Title VII to

ignore the statutory language and instead

to “unravel medical mysteries," Pet.App.90a

(Easterbrook, J., dissenting), the decision

below threatens both millions of working

women and their families and the develop-

ment of rational occupational health care

policies. Judge Easterbrook's comment that

this “is likely the most important sex

discrimination case in any court since ...

Congress enacted Title VII," Pet.App.99a,

is no exaggeration.

A. The Case Is Of Critical

Importance To Working Women And

Their Families.

It has been estimated that as many as

20 million women could be affected if

policies like Johnson Controls are permis-

2h ewe nee

sible under Title VII.2/ Numerous large

corporations are known to have similar

practices,®/ and it is believed that such

policies are even more pervasive. For

example, in the only known attempt to

document the prevalence of such practices,

the Massachusetts Department of Public

Health and the University of Massachusetts

Occupational Health Program conducted a

study of chemical and manufacturing firms

2/ Pet.App. 87a (Easterbrook, J.,

dissenting); id. at 73a (Posner, J. dissenting)

("jobs of millions of women" at stake); EEOC

Proposed Rulemaking: Interpretive Guidelines on

Employment Discrimination and Reproductive Hazards,

45 Fed. Reg. 7514 (1980) ("as many as 20 million

jobs may involve exposure in the workplace to

alleged reproductive hazards") (proposed guidelines

withdrawn, 46 Fed. Reg. 3916 (Jan. 16, 1981)); U.S.

Department of Health and Human Services, 34

Morbidity and Mortality Weekly Report 537, 538

(Sept. 6, 1985) (estimating approximately 15

million workers "exposed to selected agents known

or suspected to be toxic to reproductive

, 53 U. Chi. L. Rev.

&/ Becker, supra note 5, at 1240 n.103.

~ Pe

in that state. Responses were voluntary.

Nearly 20% of responding companies

restricted women allegedly because of

concern for fetal health, even though both

sexes faced similar reproductive risks.//

Workplace restrictions are most

oppressive and extreme in occupations

traditionally characterized by entrenched

cender-based segregation.8/ Johnson

Controls' policy, effectively excluding

women from all employment in its battery

plants, is typical of restrictions in the

traditionally male, petro-chemical industry

where wages are high and women are per-

Med. 267 (1989).

8/ See Becker, supra note 5, at 1237-41.

2 at eR So

a ee ere Saami Bg eaten eRe OUR at. ~——

ceived as marginal workers.2/ In these

jobs, open only recently to women , 29/

sterility has become a term and condition

of employment. Indeed, Mary Craig, one of

the plaintiffs in this case, submitted to

surgical sterilization because she believed

that was "the only way [she] would be

guaranteed continued employment."

Complaint at 479(f) .41/

2/ For example, the policy adopted by the

Olin Corporation in 1978 excluded women from five

of eleven lines of progression-in one division and

some jebs elsewhere. Wright v. Olin Corp., 697

F.2d 1172, 1182 (4th Cir. 1982). General Motors'

policy "virtually forecloses the employment of

women altogether" at its battery plants. Scott,

"Keeping Women in their Place", in Double Exposure

180, 181 (Chavkin, ed. 1984). And see Grant v.

General Motors, appeal filed (6th Cir., No. 89 -

3478). |

10/ See, e.g., Becker, supra note 5, at 1239

n.100.

11/ at American Cyanamid's Willow Islard,

West Virginia plant, women were initial)y told they

would be excluded from most production jobs if they

were fertile. The policy was subsequeritly

narrowed, but only after five women submitted to

(continued...)

Restrictive policies may be less participation in nearly every area of

extreme in other industries, but they economic life:

nonetheless severely limit women's A female bus or taxi driver is

exposed to noxious fumes and the

loyment opportunities. Both Hayes v. risk of accidents, all hazardous

er | i to a child she carries. Would it

Shelby Memorial Hospital, 726 F.2d 1543 follow that taxi and bus compa-

nies can decline to hire women?

(llth Cir. 1984) and Zuniga v. Kleberg _That an employer could forbid

pregnant employees to drive cars,

County Hospital, 692 F.2d 986 (5th Cir. because of the risk accidents

pose to fetuses? For all we can

1982), involved x-ray technicians who were tell, Johnson's argument compels

us to answer "yes" to these

fired when they became pregnant, even questions ....

though both were well within universally Pet.App.92a (Easterbrook, J. dissenting).

accepted safety limits for pregnant Accord, Hayes, 726 F.2d at 1553 n.15.

women.12/ Since virtually no activity is "(L)ike other controversies of great

risk-free, deference to an employer's potential consequence, [this case] demands

analysis of fetal risk could limit women's -+. some insight into social reality."

Pet.App.6la (Cudahy, J., dissenting).

Al/ (...continued)

sterilization. Oil, Chemical & Atomic Workers Clearly, for those women whose jobs are at

, 741 F.2d

444, 445-46 (D.C. Cir. 1984). , stake, and for their families, restrictive

12/ AT&T has also barred pregnant women from policies, whatever their form, present

jobs at computer chip processing plants because of ;

unconfirmed reports of reproductive hazards. issues of economic urgency. Judge Coffey's

ee aan Seen

00 ation,

wh yg po (1987) at 66.

suggestion that women are balancing mere

-10- -11-

"financial reward" against the health of

their future children, Pet.App.2la, is

simply a distortion. The truth is that

most women work because they have to;

whether in single parent or in two wage-

earner households, women's contributions to

family income are critical.43/ Johnson

Controls' policy and others like it thus

require women to make an impossible choice,

between their fertility and their jobs.

These social and economic realities

were recognized by Congress more than a

decade ago when it specifically prohibited

discrimination based on pregnancy:

The loss of a mother's salary

will have a serious effect on the

family unit, making it difficult

for parents to provide their

13/ For example, sixty percent of women in

the labor force are single, divorced, widowed, or

are married to men earning less than $15,000 per

year. Women's Bureau, Office of the Secretary,

U.S. Department of Labor, Fact Sheet No. 88-2,

Facts on Women Workers, 49 (1988).

-12-

children with proper nutrition

and health care. For some women

and their families, it will mean

dissipating family savings and

security, or being forced to go

on welfare.

Policies restricting women's

employment, even if well-intentioned, +2/

have negative health effects. Studies have

14/ Comm. on Labor and Human Resources, 96th

Cong., 2d Sess., Legislative History of the Preg-

nancy Discrimination Act of 1978 (Comm. Print 1979)

at 3 (statement of Senator Williams) (hereinafter

"legis. Hist.").

15/ Johnson asserts a vague "moral" concern

for fetuses, but this assertion lacks credibility.

As Judge Easterbrook noted, it did not consider the

negative effects its policy might have on fetuses.

Pet. App. 94a. Nor did it consider either the

impact of the policy on current children of female

workers or the full range of other serious health

effects on adults. See pp. 21-25, infra. The

extént to which potential tort liability may have

motivated Johnson Controls is unknown on the

limited record available. While suits by offspring

of both male and female workers are possible, there

is no evidence that employers are likely to face

significant liability only from children of female

workers. See Becker, supra note 5, at 1245.

Johnson may have declined to offer this

justification because Title VII does not recognize

a cost-based defense. E.g., Los Angeles Dep't Water

& Power v. Manhart, 435 U.S. 702 (1978).

-13-

shown a full range of adverse social and

health effects associated with both

unemployment and low wage wor. 48/ In

particular, poverty and the lack of

adequate prenatal care are strongly

correlated with low birth weight and

prematurity, the causes of most infant

morbidity and mortality in the United

States.12/ Thus, Judge Easterbrook noted,

"Surely Title VII does not allow an

employer to adopt a policy that simulta-

i6/ eS a eee

See ee ant Relal Eomeion S. Doc. No.

198, 98th Cong., 2d Sess. 3 (1984). See also

Becker, supra note 5, at 1230-31, 1243.

1// see, Binsacca st al., Factors Associated

The Role of Financial Problems, 77 Am. J. Pub.

Health 505 (1987). See also U.S. House of

Representatives, Select Comm. on Children, Youth

and Families, Caring for New Mothers: Pressing

Problems, New Solutions, A Fact Sheet and Hearing

Summary, (unpublished) (Oct. 24, 1989).

-14-

—_ —_— re ee

‘ Se i is th ee es i -— _

Tee ee ee

neously makes both women and their children

worse off." Pet.App.95a.

As a final matter, although Johnson

Controls' policy treats all women as if

they will become pregnant, in fact the

average woman in this country bears only

two children, and working women in

particular carefully time and plan their

pregnancies.18/ fhe decision below would

exclude most women from Title VII's

coverage, allegedly to safeguard their

reproductive functions .+2/ Others would

pay a heavy price, in the loss of procre-

18/ Bureau of the Census, U.S. Department of

Commerce, Current Population Reports, Series P-20,

No. 427, Fertility of American Women: June 1987 at

9 (1988) ; Bureau of the Census, U.S. Department of

Commerce, Special Demographic Analyses, CDS-80-8,

: cade ange at 8 (1983) .

19/ Muller v. Oregon, 208 U.S. 412 (1908), is

instructive in revealing how women have histori-

cally been restrained by law in ways that promote

their childbearing activities and require them to

discharge maternal functions in specific ways.

-15-

ative freedom, to secure their statutory

rights.

B. This Case Is Important To The

Development Of Rational Workplace.

Health Policy.

Under a literal reading of Title VII,

as amended by the Pregnancy Discrimination

Act ("PDA") 42 U.S.C.§2000e(k), the sole

issue for judicial determination in a case

challenging a sex/pregnancy-based policy is

whether affected women are being treated

the same for all employment related

purposes as others "similar in their

ability or inability to work"?

Nonetheless, the court below ignored

the plain language of the statute and

adopted an approach which required

examination of the scientific validity of

Johnson Controls' policy. See generally,

Section II, infra. It determined that, in

the occupational context, employers are to

-16-

be given wide discretion in making risk

decisions, Pet.App.49a, even when their

policies discriminate, and that the burden

of persuasion falls on the victim to prove

that such policies are invalid. See infra,

note 34.

The rule in the Seventh Circuit thus

requires women workers to bear the burden

of scientific uncertainty. Other circuits

have adopted a different rule. In both the

Fourth and Eleventh Circuits, the burden of

uncertainty is borne by the employer who

must prove the scientific validity and

necessity of such a policy.29/ As a

20/ Specifically, the Seventh Circuit would

require workers to disprove, inter alia, (1) that

there is a substantial health risk to "the unborn

child" and (2) that "transmission of the hazard ...

occurs only through women." Pet.App. 25a. In

contrast, the Fourth and Eleventh Circuits place

the burden on the employer to show "that the body

of opinion believing that significant risk [to a

fetus] exists is so considerable that, ‘an informed

employer could not responsibly fail to act on the

(continued...)

-17<-

practical matter, the allocation of this

burden is outcome determinative. Practices

that would be defensible under the Seventh

Circuit's approach would likely fail to

withstand scrutiny under the analysis

adopted by the other two circuits.

Inconsistency, however, is only part

of the problem. The decision below reveals

how litigation focusing on a specific risk

may undermine public health goals by

failing to take into account the complex

process by which public risks are

appropriately identified, evaluated, and

managed:

Risk assessment [is]comprised of

some or all of the following

20/ (...contirmed)

assumption that this opinion might be the accurate

one.'" Hayes, 726 F.2d at 1548 (citing Wright, 697

F.2d at 1191). The employer's proof that the

hazard does not affect male reproductive function

must be of similar quality. Id. Evidence that the

employer selectively protects against fetal risk

would indicate pretext. Id. at 1547-8 n.5.

-18-

components: hazard identifi-

cation, dose-response assessment,

exposure assessment, and risk

characterization.... [R]isk

management combines the risk

assessment...with socioeconomic,

technical, political, and other

considerations, to reach a

decision as to whether to control

future exposure...and, if so, the

level of control.

The decision below failed to address

some crucial issues of risk assessment and

risk management, and as to others, made

critical interpretive errors. As a result,

its conclusions are at odds with those

reached by other courts and public health

officials.22/ Specifically, its approach

2// EPA Proposed Amendments to the Guidelines

for the Health Assessment of Suspect Developmental

Toxicants, 54 Fed. Reg. 9386, 9389 (proposed Mar.

6, 1989) (hereafter, "Proposed Guidelines for

Developmental Toxicants") .

22/ These problems are, to some extent,

inherent in litigation, which ordinarily focuses on

a specific risk, and often fails to examine the

alternatives:

[A] regulatory agency can engage in ad

hoc calculations [about risk] because

(continued...)

-19-

is inconsistent with: a) regulatory

conclusions about the effects of lead

exposure; b) scientific consensus about the

mechanisms and effects of reproductive

toxicants; c) wide-spread reliance on the

significance of experimental (animal) data

in making risk assessments; and d) legal

doctrines permitting individuals to engage

in their own risk-benefit analyses.

a.

range oO a

lead. The Seventh Circuit focused its

22/ (...continued)

its iness is not the dispensation of

ve justice.... Courts and

juries, ‘on the other hand, are almost

certain to ignore the difficult half of

the excess risk calculation, dismissing

it as too speculative to be worth the

effort. Nevertheless, if prudent risk

management is the ultimate objective,

we cannot conduct only one half of the

ie ole 3

Rev. 277, 326 (1985) .

-20-

inquiry on the nature and extent of poten-

tial risk to a fetus. The court provides

no explanation or justification for its

LO

exclusive focus on fetal risks, and there

is, in fact, no basis for concluding that

the fetus is entitled to a higher level of

workplace protection than workers them-

selves receive. Nothing in either Title

VII or the Occupational Safety and Health

Act, 29 U.S.C. §651, et seq., permits this

irrational and inherently sex-based

approach to workplace health protection.

The result in the court below is thus at

odds with conclusions reached by federal

regulators as to the range of serious risks

from lead exposure. 23/ The company's

23/ OSHA specifically found that male

workers and their future children require

protection from reproductive injury at the same

level that Johnson Controls "protects" women, Final

Standard for Occupational Exposure to Lead, Medical

Surveillance Guidelines, 29 C.F.R. §1910.1025,

(continued. . -)

-21i-

experts failed to acknowledge these

findings. 24/ The Seventh Circuit "essen-

tially [took] judicial notice that OSHA is

wrong," Pet.App. 94a (Easterbrook, J.,

dissenting), and approved a policy that

recognized wate one, sex-specific risk,

among many documented risks to which

23/ (...contimued)

Appendix C (1989), and rejected an industry

proposal to exclude fertile women from such jobs.

Preamble to the Final Standard For Occupational

Exposure to Lead, 43 Fed. Reg. 52952, 52966 (1978).

The U.S. Environmental Protection Agency

("EPA") has documented effects on the

cardiovascular system in adult males at very low

levels of lead exposure, below those set by Johnson

Controls for women. EPA Regulation of Fuels and

Fuel Additives, Supplemental Notice of Proposed

Rulemaking, 50 Fed. Reg. 9401 (1985). The EPA

concluded that reduction of lead in gasoline would

result in 5,350 fewer myocardial infarctions, 1,115

fewer strokes and 5,160 fewer deaths among white

males aged 40 to 59 in 1986 alone. Environmental

Protection Agency, Costs and Benefits of Reducing

Lead _ in Gasoline: Final Regulatory Impact

Analysis, V-45 (1985).

24/ Because these experts were never

subjected to cross-examination at trial, it is not

clear how they might have responded to specific

questions about the findings of federal health agencies.

-22<

federal health officials accord equivalent

protection. 23/

b. The court misapprehended the sig-

vi ale re duc-

tive harm. The circuit court discounted

evidence of impairment of male reproductive

function. Pet.App. 33a-35a. Its conclu-

sions in this regard are in conflict with

an emerging scientific consensus recog-

nizing~- the significance of all reproductive

impairments and the complex process by

which toxins operate on the reproductive

systems of both men and women:

"Reproductive toxicants'...

impair reproduction by

23/ Where the conclusions of a regulatory

agency have been sustained after careful

consideration, see United Steelworkers of America

Vv. Marshall, 647 F.2d 1189, 1256-58 (D.C. Cir.

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

a court should conduct a thorough analysis of the

evidence before concluding that health regulators

had failed to make appropriate risk assessments.

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

400 (1985).

-23-

interfering with or altering

normal physiologic processes,

regulatory mechanisms, organ

function, or the genetic

integrity of sperm or e993 cells

in an exposed person.

The U.S. Environmental Protection

Agency ("EPA") makes it plain that exposure

of either parent to reproductive toxins can

affect not only sexual function and the

ability to procreate, but also pregnancy

outcome and the health of a future child.

Evidence of injury to sperm is highly

significant:

An increase in abnormal sperm

morphology has been considered

supportive evidence that the

agent has gained access to the

germ cells. Exposure of males to

toxic agents may lead to sperm

26/ Ass'n of Schools of Public Health and

National Institute for Occupational Safety and

Health, Proposed Nat lonal Strategies for the

oy Part 2, at 3 (1988) (hereinafter "NIOSH

Proposed National Strategies") .

-24-

abnormalities in their

progeny.

The National Institute for Occupa-

tional Safety and Health ("NIOSH") con-

cludes that:

All_ undisputed episodes of occupa-

tional disorders of reproduction in

workers.... The weight of scientific

evidence demonstrates that thresholds

exist for nonmutagenic reproductive

and developmental effects so that

exclusionary policies based on sex are

inappropriate and unnecessary in

principle.

c. The court improperly discounted

animal data. The court found that animal

27/ EPA Proposed Guidelines for Assessing

Male Reproductive Risk, 53 Fed. Reg. 24850, 24851

(citations omitted) (1988).

If the effects seen in evaluation of

male reproductive end points are the

result of mutagenic events (e.g.,

interaction with germ-cell DNA), then

there is potential for transmissible

genetic damage.

Id. at 24855. See also Proposed Guidelines for

Developmental Toxicants, supra note 21, at 9390 (1988).

28/ NIOSH Proposed National Strategies, supra

note 26, at 8-9 (emphasis added).

-25-

data demonstrating that lead may cause harm

to offspring from paternal exposure was

"speculative and unconvincing."

Pet.App.34a. As Judge Easterbrook noted,

it is an accepted principal of toxicology

and risk assessment that animal studies

provide valuable, if not essential, data.

Pet.App.96a-97a. The history of regulation

of toxic exposures reveals the critical

relevance of this type of data. For

example, thalidomide was known to cause

birth defects in some, but not all, animal

species before its destructive effects on

humans were observed.22/ If the animal

data had been considered more important,

the tragic birth defects attributable to

that drug might have been avoided.

29/ Proposed Guidelines for Developmental

Toxicants, supra note 21, at 9390.

-26-

Similarly, before it was discovered

that the pesticide DBCP caused sterility in

human males, it was known that DBCP caused

sterility in male animals.329/ Indeed, EPA

concludes that:

in almost all cases [of known human

developmental toxicants], the

experimental animal data would have

predicted a developmental effect in

humans. .

It has thus endorsed the "basic assumption"

that:

an agent that produces an adverse

developmental effect in experi-

mental animals is assumed to pose

a potential hazard to humans.

30/ U.S. Department of Labor, Occupational

Safety and Health Admin., Occupational Exposure to

1,2-Dibromo-3-Chloropropane (DBCP), 43 Fed. Reg.

11514 (1978). See also EPA Intent to Cancel

Registrations of Pesticide Products containing

Dibromochloropropane (DBCP), 50 Fed. Reg. 1122

(1985) (DBCP also carcinogenic and mutagenic in animals).

ay Proposed Guidelines for Developmental

Toxicants, Supra note, 21 at 9390, 9387. As EPA

explains, animal studies can produce information in

a short time period, include a large number of

subjects, and control for potentially confounding

(continued. . .)

-27-

ss > - The Seventh Circuit would

defer to employers' fetal risk assessmen* -

and allow them to impose their value judg-

ments on fuliy competent adult women.

E.g., Pet.App. 492, 58a. In the medical

context, individuals engage in their own

risk-benefit analysis, once federal

regulators have determined tht a

particular drug or treatment, although not

risk free, is nevertheless effective and

beneficial. Physicians and drug manufac-

turers who have properly tested and

manufactured their products, are required

3Y/ (...contimued)

variables, all of which are difficult when studying

humans. Ironically the Seventh Circuit itself

relied on animal data in concluding that lead poses

a risk to the fetus in utero, since some of the

expert opinion it cited was based on animal

studies: E.g., Depositior: of E.K. Silbergeld,

pp.49-52, cited at Pet.App. 15

-28-

to conform to the standards for obtaining

"informed consent" from the patient or, if

the patient is a minor (or a fetus), froma

parent .32/

. * *

The Seventh Circuit's failure to

apply the statute as written requires case

by case determinations of workplace risks.

The result will be a haphazard and con-

fusing array of policies that may conflict

/

=

32/ See, generally, 1 S. Pegalis and H.

Wachsman, American Law of Medical Malpractice at

98-103 (1980) and 2 M. Dixon and F. Woodside, Drug

Product Liability § 11.02[1] (1989). A pregnant

woman's informed consent is binding on the

subsequently born child. Cf. Hughson v. St. Francis

Hospital, 459 N.Y.S.2d 814 (N.Y. App. 1984);

Roberts v. Patel, 620 F. Supp. 323 (N.D. Ill.

1985); Reiser v. Lohner, 641 P.2d 93 (Utah 1982);

Charley v. Cameron, 528 P.2d 1205 (Kan. 1974).

Likewise, a warning provided to a pregnant woman,

if otherwise adequate, is sufficient to preclude a

“failure to warn" claim by the child against the

prescription drug manufacturer. See, e.g., Needham

v. White Laboratories, 847 F.2d 355 (7th Cir.

1988), cert. denied, 454 U.S. 927 (1981); Walker v.

Merck & Co., Inc., 648 F. Supp. 931 (M.D. Ga.

1986), aff'd, 831 F.2d 1069 (llth Cir. 1987).

-29°-

with each other and with the work of

federal health officials. As Judge

Easterbrook noted: e

It is painful to see conflicts of

this kind settled by litigation;

judges cannot unravel medical

mysteries by observing scien-

tists' demeanor on the stand.

This is not how scientists

resolve disputes among themselves

--+. Scientists formulate

hypotheses, collect data, and

apply statistical methods to

assess them; judges and —_

find this process alien.

33/ In litigation, scientific developments

become frozen in time; the record is merely a

snapshot of developments at a particular moment.

But the scientific process is continuing. The

inquiry is shaped by assumptions that derive, in

part, from social forces. Once there is consensus

as to the relevant assumptions, scientific

knowledge accrues through an evolutionary process.

See T. Kuhn, The Structure of Scientific

Revolutions (2d. ed. 1970). At that point,

developments may occur at a rapid pace, supported

by simultaneous refinements of technology and

methodology.

Crises involving thalidomide and other drugs

focused research attention on female-mediated birth

defects. U.S. Department of Health and Human

Services, 34 Morbidity and Mortality Weekly Report

537, 538 (Sept. 6, 1985). Less attention has been

directed at male-mediated reproductive effects.

(continued. .

-30-

Pet.App. 90a.

II. REVIEW IS NEEDED TO RESOLVE CONFLICTS

AMONG THE CIRCUITS REGARDING THE

CONSTRUCTION AND APPLICATION OF TITLE

VII OF THE CIVIL RIGHTS ACT.

This case involves critical issues

regarding the meaning and applicability of

Title VII and the PDA in challenges to

"fetal protection" policies. On these

issues, the Seventh, Fourth and the

Eleventh Circuits have taken inconsistent

approaches, and definitive guidance is

necessary. See EEOC v. University of

Pennsylvania, U.S. , 58 U.S.L.W.

4093, 4094 (January 9, 1990).34/ Review is

33/ (...continued)

Becker, supra note 5, at 1259 n.170. This does not

constitute evidence of differential-sensitivity,

but rather may simply reflect that the inquiry is

at a different point in the evolutionary process.

See Needleman and Bellinger, Commentary, 46 Envtl.

Res. 190 (1988).

34/ petitioners have addressed in some detail

the conflict in the circuits with regard to burden

of proof. See Petition at 11, 17-21. Pursuant to

(continued... )

-3l-

further needed because lack of uniformity

and consistency in the courts has presented

grave problems for effective enforcement of

Title VII, as is evident from efforts of

the Equal Opportunity Enforcement Commis-

sion ("EEOC") to reconcile the various ap-

pellate court decisions with its own obli-

gation to give effect to the statutory

mandate.

A. Review Is Needed To Clarify The

Meaning Of The PDA.

The PDA was enacted to insure that

women would not remain marginal workers,

limited by assumptions about pregnancy and

its effects on their capacity to work. 32/

34/ (...contimed)

Rule 37.1 of the Rules of the Supreme Court, Amici

do not present additional argument that this

significant conflict merits the Court's review of

this case, but endorse and adopt Petitioner's argument.

35/ The PDA provides:

The terms 'because of sex' or 'on the

(continued...)

-32-

Its legislative history emphasizes the

serious social and evensnic costs of en-

ployment discrimination against pregnant

women. 26/ This case represents an

opportunity for the Court to clarify the

meaning and application of this important

federal law. The Court has construed the

PDA on two prior occasions, but in neither

instance did it address the primary focus

of the Act, employment discrimination

33/ (...continued)

basis of sex' include ... because of or

on the basis of pregnancy, childbirth or

related medical conditions; and women

affected by pregnancy,- childbirth or

related medical conditions shall be

treated the same for all employment

purposes ... as other persons not so

affected but similar in their ability or

inability to work. 42 U.S.C. §2000e(k) .

38/ ‘These costs include the "devastating

a ee ae eee eee eee anlary

[would] .have on the family unit." Legis. Hist

Supra, note 14, at 116 (Statement of Senator

Williams). See pp. 12-15, supra.

°@

-33-

against women who are or may become

pregnant. 32/

The PDA makes "“dist’.nctions based on

women's ability to bear children sex

discrimination," Pet.App.76a (Easterbrook,

J., dissenting) and therefore mandates the

conclusion that Johnson Controls' policy is

not neutral.38/ The Seventh Circuit

majority virtually ignored the PDA.

Rather, the court purported to rely on

37/ Newport News Shipbuilding and Dry Dock v.

E.O.C. j the

E.E.0.C., 462 U.S. 669 (1987) considered

validity of a health plan that provided female

employees with benefits for pregnancy related

conditions, but denied equivalent benefits to the

spouses male workers. In

: os , 479 U.S.

Savings and Loan Association v. Guerra

272 (1987), the Court considered whether a state

statute requiring employers to provide leave and

reinstatement only to pregnant women was preempted

by Title VII.

38/ Judge Posner agrees that the PDA "shows

that the present case really is a disparate

treatment case, that is, a case of intentional

discrimination ...." Pet.App. 65a.

-34-

Wright v. Olin, 697 F.2d 1172, and Hayes v.

Shelby Memorial Hospital, 726 F.2d 1543.39/

In Wright, the court rejected the

argument that the PDA required the case to

be analyzed as one of overt discrimination:

"Without regard to whether that would make

any difference on the facts of this case,

we reject it as conceptually unsound...."

697 F.2d at 1184 n.17. Without further

mention of the PDA, the Court concluded

that the disparate impact/business neces-

sity model was best suited for analysis of

such an exclusionary policy,492/ in part’

39/ As explained below, those courts took

different approaches to the effect of the PDA.

However, because the elements of the rebuttal case

as set forth in Hayes parallel those of the

business necessity defense articulated in Wright,

see Hayes, 726 F.2d at 1548 n.8, the Johnson

majority was able to find the approaches taken by

the Fourth and Eleventh Circuits similar. Pet.App.

24a-25a.

40/ tt stated that while the "facial

neutrality" of the rule might be subject to logical

(continued...)

=-35-

because the policy could never be defended

as a bona tide coempationss qualification

("BFOQ"), id. at 1185 n.21, the only statu-

tory defense for intentional discrimina-

tion. 42 U.S.C. 2000e-2(e). See Los

Angeles Dep't Water & Power v. Manhart, 435

U.S. 702 (1978).

Unlike the Seventh and the Fourth

Circuits, the Eleventh Circuit did "tend to

Bae that the hospital's restrictive

policy presented a case of overt discrimi-

nation to which the only affirmative

defense is BFOQ. Hayes, 726 F.2d at 1547-

48. It nevertheless treated the policy as

merely raising a presumption of facial

discrimination which could be rebutted by

evidence showing that it was neutral "in

the sense that it effectively and equally

40/ (...contimed)

dispute, the dispute would involve "mere semantic

quibbling." Wright, 697 F.2d at 1186.

-36-

protects the offspring of aii employees."

But see Connecticut v. Teal, 457 U.S. 440

(1982) and Manhart, 435 U.S. at 716-17.

Decisions in the Seventh, Eleventh and

Fourth Circuits are thus in substantial

disarray with regard to the significance of

the PDA. In contrast, they are uniform in

their apparent reliance on benign motive to

justify a departure from the statutory

scheme. Although it is well-established in

Title VII that good faith or benign motive

is not a defense to discrimination, 41/

these courts have altered the rules in

cases involving patently discriminatory

policies allegedly intended to protect

41/ Albemarle Paper Co. v. Moody, 422 U.S.

405, 422-23 (1975). Cf. Orr v. Orr, 440 U.S. 268

(1979) (equal protection case). A showing of a

facially discriminatory policy triggers the employ-

er's affirmative obligation to prove the exisence

of a BFOQ. Cf. Trans World Airlines, Inc. v.

Thurston, 469 U.S. 111, 121-22 (1985) (age discri-

mination case). See also Petition at 17-19, 25-26.

-37-

against fetal harm. Defendants may not

simply pick and choose among defenses,

however, the defense must match the prima

facie case. |

B. Review Is Required To Define The

BFOQ Defense.

The Seventh Circuit held, in the

alternative, that Johnson Controls' policy

was justified as a BFOQ. In this respect,

it conflicts with both Wright and Hayes.

Both the Fourth and Eleventh Circuits

explicitly acknowledged that a sex-based

rule barring fertile women could not meet

the stringent BFOQ standard because there

was no showing or even assertion that women

were unable to perform the jobs at issue.

Wright, 697 F.2d at 1185 n.21; Hayes, 726

F.2d at 1549. As Judge Easterbrook noted,

the PDA "has a built-in BFOQ standard:

unless pregnant employees differ from

others ‘in their ability or inability to

-38-

work,' they must be treated 'the same' as

other employees." Pet.App. 73a.

Johnson Controls does not assert that

women are incapable of performing the jobs

from which they are barred. The Seventh

Circuit concluded, however, that the "in-

dustrial safety-based concern of protecting

the unborn child from lead exposure" was

part of the "essence" of Johnson Controls'

battery-making business, and that the sex-

based policy was reasonably necessary to

further this objective. Pet.App. 54a.

Overall, the court construed the BFOQ

defense to "give meaningful and thoughtful

consideration to the interests of all those

, ‘ ; ;

affected by a company's policy, in this

case the employer, the employee and the

-39-

unborn child." Pet.App. 42a (emphasis in

original) .42/

Until the Seventh Circuit's decision

below, neither this Court nor any federal

appellate court conducting a BFOQ analysis

had ever held that the essence of the

business extends beyond the specific

requirements and demands of the particular

job.43/ cf., e.g., Western Air Lines, Inc.

42/ The court below adopted a policy of

deference to employers' decisionmaking in its BFOQ

analysis. Pet.App.49a. This’constitutes yet

another serious erosion of important Title VII

principles. Cf. , 426 U.S. 229,

247 (1976) (Title VII prohibits deference to the

"seemingly reasonable" acts of employers) ;

Criswell, 472 U.S. at 421-22 and n.36 (employers

to show more than a "rational basis in

fact" to satisfy BFOQ standard of Age

Discrimination in Employment Act).

43/ ven customer preferences do not justify

facial discrimination, as the Seventh Circuit

itself has - See Rucker v. Higher

Baucation Promeg meme Board, 669 F.2d 1179, 1181 (7th Cir.

1982) (black clientele's prefererse for black ~

ceusthaan Gans Gai Sain GE Gineideinatcen) |

Fernandez v. Wynn Oil Co. 653 F.2d 1273, 1276-77

9th Cir. 1981) (customer preference does not

7 ™ ie (continued. . .)

-40-

v. Criswell, 472 U.S. 400 (1985) (essence

of airline's business is safe transporta-

tion of passengers); Dothard v. Rawlinson,

433 U.S. 321 (1977). (essence of prison

official's job is to maintain prison

control and security) ; Tullis v. Lear

School, Inc., 874 F.2d 1489 (11th Cir.

1989) (essence of school bus driver's

business is safe transport of passengers) ;

Chambers v. Omaha Girls Club, Inc., 834

F.2d 697 (8th Cir. 1987) (essence of

business is to provide role model for

adolescent girls). There is simply no

basis for the Seventh Circuit's conclusion

that the statute permits employers to stand

in loco parentis for the potential fetuses

43/ (...continued)

qualify gender as a BFOQ); Diaz v. Pan American

, 442 F.2d 385, 389 (5th Cir.), cert.

denied, 404 U.S. 950 (1971) (customer preference

for female flight attendants does not justify

policy excluding males).

-41-

of its women workers. Such a result would

be beyond the scope of the BFOQ provision

and directly contrary to the ppa.44//

C. Review Is Necessary To Provide

Guidance To The Enforcement

npaaey . |

The EEOC's duty to enforce Title VII

imposes practical demands to investigate

and litigate cases in all jurisdictions.

Conflicts among the circuits on the

appropriate framework for analyzing "fetal

hazard" cases have made this a virtually

impossible task. This is_evident from the

EEOC's recent effort to clarify its

approach. See EEOC, Policy Guidance on

44/ While achieving workplace safety is a

laudable and desirable goal, it should not and need

not be accomplished at the cost of prohibited forms

of employment discrimination. The potential for

such discrimination extends to all workers, as

genetic characteristics may be associated with

differential susceptibility to workplace hazards.

While the ability to predict such susceptibility

may be useful to individuals in making employment

decisions, these predictive tools should not be

used as a basis for discrimination.

-42-

United Auto Workers v. Johnson Controls,

-Inec., Daily Lab. Rep. (BNA) No. 18, at D-1

(January 26, 1990). (Pet.App. 127a, et

seq.) .42/

As the EEOC observes, the Seventh

Circuit's decision in this case represents

a "significant departure from the analyti-

cal framework previously developed by the

courts." The EEOC has thus termed "prob-

lematic" the Seventh Circuit's "hybrid

approach" to a claim of facial discrimina-

tion:

[I]t is more consistent with

Title VII's structure and purpose

to allow a defendant in a case

challenging a facially discrimin-

atory fetal protection policy

only the statutory defense of

Fair Empl. Prac. Manual (BNA) 401:6013 (Oct. 3,

1988), the EEOC had recognized that exclusionary

policies constitute overt sex discrimination, "per

se violations" of Title VII. As an interim

measure, it instructed its staff to follow the lead

of the existing court decisions.

-43-

proving that sex is a ‘bona

fide occupational qualifica-

tion...'

Pet.App. 134a (citations omitted).

The Commission's position, however,

leaves unresolved a number of key issues.

Recognizing the conflicting rules in the

circuits with regard to the appropriate

defense and the type of evidence that would

establish it, the Commission frankly

requests "judicial interpretation of the

language of the BFOQ provision." Pet.App.

135a. In part, because of the "reality"

that each of the circuit courts has

permitted some defense to an exclusionary

policy, id. at n.6, the Commission is

"unwilling to say that no possible defense

is available," id. Nevertheless, it recog-

nizes “considerable merit" in Judge Easter-

brook's views to that effect. Id. at n.7.

-44-

|

In sum, the Commission is torn between

the practical necessity to investigate and

prepare cases for courts that have

permitted defenses and the obligation to

enforce the statute as written. The lack

of consensus in the courts has created

overwhelming enforcement difficulties,

which can only be resolved by guidance from

this Court, as the EEOC itself suggests.

CONCLUSION

For the above-stated reasons, the

petition for a writ of certiorari should be

granted.

Respectfully submitted,

JOAN E. BERTIN

(Counsel of Record)

ELISABETH A. WERBY

American Civil Liberties

Union Foundation

232 West 43rd Street

New York, New York 10036

MARLA HASSNER

30 Rockefeller Plaza

New York, NY 10112

Of Counsel

Attorneys for Amici Curiae

March 1, 1990

-45-

wa

PPENDIX

Statements of Interest of Amici Curiae

The AMERICAN CIVIL LIBERTIES UNION

(ACLU) is a nationwide, non-partisan

organization of over 250,000 members. The

Women's Rights Project of the ACLU

Foundation was established to work toward

the elimination of the pervasive problem of

gender-based discrimination. It has

participated in the litigation of many

cases challenging sex discrimination in

employment and discrimination against women

of child-bearing capacity. The American

Civil Liberties Union of Wisconsin is the

Wisconsin state affiliate of the ACLU.

The AMALGAMATED CLOTHING AND TEXTILE

WORKERS UNION (ACTWU) is an international

trade union, with 260,000 members in the

apparel, textile and related industries.

It has many members -- both women and men

A-1

-- exposed to lead and other reproductive

chemical hazards in a wide variety of

industries. Many of these workers would be

directly affected by the principles

established in this case.

The AMERICAN ASSOCIATION OF UNIVERSITY

WOMEN (AAUW), a national organization of

over 140,000 college-educated women and

men, is strongly committed to promoting and

achieving legal, social, educational and

economic equity for women. For more than a

century AAUW has worked toward those goals

by responsible participation in public

policy issues at local, state, national and

international levels. AAUW supports

constitutional protection for the rights of

all individuals and opposes all forms of

discrimination. Therefore, AAUW has a

strong interest in the outcome of this

case.

The AMERICAN FEDERATION OF STATE,

COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO,

(AFSCME), which represents approximately

one million public employees, is the

nation's largest public employee labor

union. AFSCME represents many men and

women in the health care and sanitation

industries whose jobs continuously expose

them to hazardous toxic substances and

chemicals.

The AMERICAN PUBLIC HEALTH

ASSOCIATION, founded in 1872, is a non-

governmental society whose membership,

including its state and local affiliates,

is comprised of approximately 50,000 health

professionals interested in promoting high

scientific standards, action programs, and

public policy for good health. Its

reproductive health policy, adopted in

1979, “condemns the corporate practice of

A-3

forcing women to choose between their jobs

and the right to reproduce [and urges

governmental agencies to develop]

occupational exposure standards that

protect women, men, and the fetus."

The AMERICAN SOCIETY OF LAW AND

MEDICINE was founded in 1972 to provide a

forum for interdisciplinary discussion of

the complex issues at the interface of law,

medicine and health. Ongoing informational

efforts include the publication of two

quarterly journals, Law, Medicine and

Health Care, a leading forum for

interprofessional analysis of current

issues, and the American Journal of Law and

Medicine, a law review co-published with

the Boston University School of Law. For

the reasons stated in the attached brief,

the Society opposes discriminatory policies

that undermine public health goals.

A-4

The CENTRAL NEW YORK COUNCIL ON

- OCCUPATIONAL SAFETY AND HEALTH is a not-

for-profit organization dedicated to

workers' health and safety rights. Its

members include 40 area union locals,

individual organized and unorganized

workers, concerned health providers,

attorneys, educators, and others. It

believes the Seventh Circuit Court of

Appeals decision in this case undermines

the OSHA lead standard and the health of

all workers. Furthermore, the decision

simultaneously restricts women's employment

opportunities and leaves men exposed to

hazardous work conditions.

The COALITION OF LABOR UNION WOMEN is

a membership organization of 20,000 female

and male trade unionists who promote the

rights of working women. The Coalition of

Labor Union Women has, since its founding

A-5§

in 1974, advocated workplace rules and

practices that protect all workers.

The COMMITTEE FOR RESPONSIBLE GENETICS

is a group of approximately 600 scientists

and others concerned with social and

ethical implications of biotechnology,

including reproductive technology, which

promotes the broadest possible public

participation in development of reievant

decisions. The Committee for Responsible

Genetics opposes exclusionary employment

practices because they violate workers'

civil rights and fail to ensure the

reproductive health of all employees in the

workplace.

The COMMUNICATION WORKERS OF AMERICA

(CWA) is an international trade union,

representing 650,000 workers in information

industries. It has many members -- both

men and women -- exposed to toxic chemicals

A-6

in their work who are directly affected by

the principles established in this case.

The EMPLOYMENT LAW CENTER is the

principal project of the Legal Aid Society

of San Francisco and is nationally

recognized for its expertise regarding

state and federal laws prohibiting

employment discrimination. As an

Set

“~

organization concerned with securing full

equality in employment opportunities, the

Employment Law Center has a strong interest

in this case.

The ENVIRONMENTAL DEFENSE FUND (EDF),

is a non-profit advocacy organization with

over 60,000 members nationwide. Since its

founding in 1967, EDF has been a in

efforts to reduce human exposure to

environmental toxins, including substances

such as lead that are known to have serious

reproductive and other health effects. EDF

A-7

has participated extensively in

administrative, judicial and legislative

proceedings on the control of lead in

gasoline, drinking water, incinerator ash,

point source emissions, consumer products,

and in the workplace. EDF's concerns about

lead toxicity extend to male-mediated

effects of lead on reproductive function as

well as female-mediated reproductive

effects and other health effects on adults

and juveniles of both sexes.

The INTERNATIONAL CHEMICAL WORKERS

UNION, AFL-CIO is a national labor

organization headquartered in Akron, Ohio.

It has over 300 affiliated local unions,

in over 500 bargaining units representing

about 50,000 hourly workers in the U.S.

chemical industry. Many of its members are

occupationally exposed to lead. The Union

is concerned that a company may

A-8

discriminate in work assignments rather

than reducing exposure levels to make the

workplace safe for workers of both sexes.

This is a particularly critical concern

with exposure to material such as lead,

which has demonstrable reproductive effects

for men as well as women.

The MASSACHUSETTS COALITION FOR

OCCUPATIONAL SAFETY AND HEALTH (MassCOSH)

is a coalition of 85 labor organizations,

representing over 150,000 workers and 150

occupational health professionals in

Massachusetts. MassCOSH is dedicated to

improving health and safety conditions in

the workplace through technical assistance,

training, and education and political

action. MassCOSH, which has a reproductive

hazards project. and regularly conducts

workshops with member locals regarding

reproductive hazards in the workplace,

A-9

believes that all workers are entitled to a

safe workplace.

The NATIONAL ABORTION RIGHTS ACTION

LEAGUE (NARAL), has over 400,000 members in

40 state affiliates and the national

organization. Founded in 1969, NARAL is

the largest national organization dedicated

solely to keeping abortion safe, legal and

accessible. NARAL recognizes that

guaranteeing women the full range of

reproductive choices is critical to women's

autonomy and equality.

The NATIONAL BLACK WOMEN'S HEALTH

PROJECT, is a health, education and

advocacy organization which works to

improve the quality of life for African-

American women. It works to promote non-

discriminatory approaches to insure that

all African-American women have access to

health services, including abortion, that

A-10

maximize maternal health, reduce infant

mortality and produce healthy babies.

Because poor African-American women are

particularly vulnerable to economic

coercion, the impact of intetensey

policies may be particularly severe for

them.

The NATIONAL ORGANIZATION FOR WOMEN

(NOW) is a national membership organization

of approximately 150,000 women and men in

about 700 chapters throughout the country.

It is a leading advocate of women's

equality in all areas ef life. NOW has as

one of its priorities the right to full

employment opportunity without sacrificing

health or reproductive rights.

The NATIONAL WOMEN'S HEALTH NETWORK

(NWHN) is a public interest organization

whose membership, comprised of 10,000

individuals and 400 organizations

A-11

representing 500,000 women, seeks to give

women a voice in the health care system in

the United States. NWHN supports women's

right to have complete control over their

bodies, particularly the right to decide

when, where and how to give birth, and

opposes policies which condition employment

on the loss of fertility.

The NATIONAL WOMEN'S POLITICAL CAUCUS

(NWPC), is a nationwide membership

organization dedicated to the election and

appointment of more vomen to political

office. NWPC also works to ensure equality

for women in all aspects of life.

The NATIONAL WOMEN'S LAW CENTER is a

non-profit legal advocacy organization

dedicated to the advancement and protection

of women's rights and the corresponding

elimination of sex discrimination from all

facets of American life. Since 1972, the

A-12

g

Center has worked to secure equal

opportunity in employment for women

through, inter alia, the. full enforcement

of Title VII. It has a deep and abiding

interest in assuring that victims of

employment discrimination on the basis of

sex, including pregnarcy, have their rights

vindicated under the law.

The NATURAL RESOURCES DEFENSE COUNCIL,

INC. (NRDC), is a non-profit, membership

corporation headquartered in New York City.

NRDC has a national membership composed of

over 120,000 citizens dedicated to the

defense and preservation of the human

environment and the natural resources of

the United States. Among the purposes of

NRDC is to ensure that the laws designed to

protect human health are fully and properly

enforced and that all necessary steps are

taken to reduce all risks, to males and to

«

A=-13

\

females, resulting from exposure to toxic

chemicals.

The NEW YORK COUNCIL ON OCCUPATIONAL

SAFETY AND HEALTH (NYCOSH) is a non-profit

membership organization dedicated to the

right of all workers to safe and healthy

working conditions. Its membership

includes over 160 union locals and regional

councils, as well as individual workers,

medical and legal professionals and

community activists, all working together

to eliminate workplace hazards. NYCOSH,

which has a reproductive hazards committee,

believes that exclusionary policies are not

the appropriate solution to reproductive

hazards in ti workplace.

9 TO 5, .WATIONAL ASSOCIATION OF

WORKING WOMEN, is a nationwide membership

group dedicated to improving the status and

working conditions of office workers. For

A-14

more than fifteen years, 9 to 5 has been

concerned with bringing attention to the

health and safety hazards faced by working

women. We strongly believe that employers

should meet their legal obligations to

provide safe workplaces to all workers, and

are opposed to the exclusion of women as a

substitute for correcting job hazards.

The NORTH CAROLINA OCCUPATIONAL SAFETY

AND HEALTH PROJECT (NCOSH) is a private,

non-profit membership organization working

to improve occupational safety and health

conditions for all North Carolinians.

Approximately 70 local unions representing

27,000 workers and 400 health and legal

professicnals concerned about occupational

health are NCOSH members. NCOSH believes

that exclusionary employment practices and

policies are inappropriate and illegal

solutions to the problem of dangerous

A-15

occupational exposures. Exclusionary

policies violate the rights of women to

pursue equal employment and the rights of

all workers to a safe workplace.

The NOW LEGAL DEFENSE AND EDUCATION

FUND (NOW LDEF) was founded as a non-profit

women's rights law center in 1970 by

founders of the National Organization for

Women, and since that time has consistently

worked on important legal cases and in

advocacy and public education concerning

the rights of women. NOW LDEF has

particular concern for women's employment,

reproductive and economic rights, all of

which are threatened by irrational and

discriminatory workplace policies such as

that involved in this case.

The OCCUPATIONAL SAFETY AND HEALTH LAW

CENTER (OSHLC) is a public interest law

firm which represents individuals,

A-16

families, organizations, and unions in

health and safety matters. The OSHLC has

an on-going concern with regard to

reproductive rights and the protection of

both men and women on the job from any risk

to those rights.

The OIL, CHEMICAL AND ATOMIC WORKERS

INTERNATIONAL UNION (OCAW) has 100,000

members, a substantial number of whom are

employed in industries and are potentially

affected by exclusionary empl -yment

policies similar to the one at issue in

this case. The OCAW opposes exclusionary

policies which single out members of one

sex, and it actively seeks to develop and

encourage the use of policies which will

protect the health of all workers.

The PHILADELPHIA AREA PROJECT ON

OCCUPATIONAL SAFETY AND HEALTH (PHILAPOSH)

is a private, non-profit corporation which

A-17

seeks to promote the health and safety of ;

employees in Eastern Pennsylvania, Southern

New Jersey, and the State of Delaware.

PHILAPOSH has approximately 135 affiliated

local unions with a combined individual

membership of over 150,000. PHILAPOSH has

regularly participated in litigation which

raises important health and safety issues,

either as a party or as amicus curiae.

Over the last several years, PHILAPOSH has

presented a number of workshops and

conferences on reproductive hazards in the

workplace and issues of particular concern

to women workers.

PLANNED PARENTHOOD FEDERATION OF

AMERICA (PPFA) is a not-for-profit

corporation organized in 1922. It is the

nation's oldest and largest voluntary

family planning agency. Its 180 affiliates

in forty-three states and the District of

A-18

Columbia provide medical, educational and

counseling services to meet the family

planning needs of over two million

Americans per year. PPFA believes that the

ability to regulate one's own fertility is

a basic human right and is concerned that

female workers not be penalized in their

exercise of that right. The organization

further believes that a resolution of this

matter can and must be found that protects

the health interests of all workers of both

sexes and their children without

sacrificing the workers' right to equal

employment opportunity.

The ROCHESTER COUNCIL ON OCCUPATIONAL

SAFETY AND HEALTH (ROCOSH) is a non-profit

organization comprised of unions, health

and legal professionals, industrial

hygienists, educators, and concerned

individuals who believe all working people

A-19

are entitled to a safe and healthy

workplace. Our union affiliates represent

about 32,000 persons. ROCOSH is interested

in this case because of its belief that

working people should not have to choose

between making a living or preserving their

life and health. Upholding Johnson

Controls' "fetal protection policy" would

pervert OSHA's mandate that employers

provide a safe workplace and threaten

womens' employment opportunities. If

allowed to stand, this decision could have

implications for several workplaces in the

Rochester area.

SANTA CLARA CENTER FOR OCCUPATIONAL

SAFETY AND HEALTH (SC-COSH) is a group

representing 170 labor unions, workers and

occupational health professionals in

northern California, dedicated to improving

health and safety conditions in the

workplace.

The SERVICE EMPLOYEES INTERNATIONAL

UNION (SEIU) represents 925,000 workers in

the U.S. and Canada. Its workers work

primarily in the service sector, in a broad

spectrum of workplaces including hospitals,

offices, and food service facilities where

they are exposed to toxic substances that

adversely affect reproduction and health

generally. The use of exclusionary

practices, instead of a comprehensive

approach to health protection, could

threaten the economic status of a large

number of members.

The SILICON VALLEY TOXICS COALITION

’

based in San Jose, California, includes

labor unions, environmental organizations,

doctors and other public health workers,

firefighters, clergy, and neighborhood

A-21

organizations. It advocates that industry

and government must protect the public

health and works to prevent exposure of the

public to toxic substances.

The UNITED MINE WORKERS OF AMERICA,

[INTERNATIONAL UNION (UMWA)] is a 100-year

old organization which represents

approximately 150,000 miners and retirees

in North America. The UMWA is committed to

the complete elimination of impediments to

job opportunities based on race and gender.

The UMWA believes that employers must

remove, and protect against, work-related

health hazatds. Barring women or others

from jobs due to those hazards is an

evasion of the employer's responsibility

for workplace health and safety.

Moreover, such exclusionary policies do not

promote safety because men remain exposed

to the hazards. Rather, these practices

A-22

shift the risks and burdens of an unhealthy

work environment to those least able to

bear them.

The WESTERN NEW YORK COUNCIL ON

OCCUPATIONAL SAFETY AND HEALTH (WNYCOSH) is

an organization comprised of 60 area union

locals (representing 55,000 workers) and a

number of health professionals in the

Western New York area. WNYCOSH is part of

a consortium of organizations, including

the Cornell-Chemical Hazards Information

Program, the SUNY Buffalo Toxicolegy

Research Center, and the Union Occupational

Health Center Clinic, which cooperate in

providing educational and technical

assistance services to workers in the

region. WNYCOSH is concerned that any

judicial decision that_undermines the OSHA

lead standard is inappropriate since there

is evidence that lead constitutes a

reproductive hazard for both sexes.

WOMEN EMPLOYED, based in Chicago,

Illinois, has a national membership of

3,000. It assists working women with

problems of sex discrimination and health

and safety issues. The policy at issue in

this case threatens womens' employment

rights and is thus of concern to Women

Employed.

The WOMEN'S LAW PROJECT (WLP) is a

non-profit feminist law firm which seeks to

advance the legal and economic status of

women through litigation, public education,

and individual anseling. During the past

fifteen years of its existence, WLP's

activities have included work in the areas

of reproductive freedom, pregnancy

discrimination, and employment

discrimination. WLP is dedicated to

A-24

eliminating discrimination against women

based on childbearing capacity and to

securing the right of women workers to

equal access to safe workplaces.

WOMEN'S LEGAL DEFENSE FUND is a

national advocacy organization working to

advance the rights of women in the areas of

work and family. The Fund devotes a major

portion of its resources to combating sex

discrimination in employment through

litigation of a significant employment

discrimination counseling program, and

through agency advocacy before the EEOC and

other federal agencies that are charged

with enforcement of the equal opportunity

laws. It has had particular interest in

implementation of the Pregnancy

Discrimination Act, which it worked to pass

in 1978.

NICHOLAS A. ASHFORD, J.D., PH.D., is

an Associate Professor of Technology and

Policy at the Massachusetts Institute of

Technology. He has written extensively

regarding reproductive hazards in the

workplace. His publications include "Legal

Considerations of Reproductive Hazards in

Industry in the United States," in Pregnant

Women at Work, edited by Geoffrey

Chamberlain (The Royal Society of Medicine

and The Macmillan Press Ltd., London,

1984), and "The Control of Reproductive

Hazards in the Workplace: A Prescription

for Prevention," (with Charles C. Caldart),

Industrial Relations Law Journal, Volume 5,

Issue 3, pp. 523-563 (1983).

DAVID BELLINGER, PH.D., and HERBERT

NEEDLEMAN, M.D., are professors at the

Harvard University School of Medicine and

the University of Pittsburgh School of

A-26

Medicine, respectively. They join this

brief because their research was cited by

Johnson Controls as supporting its sex-

based policy, a conclusion they believe is

insupportable. They seek to ensure that

their research is placed in its proper

biological and epidemiological context.

EULA BINGHAM, M.D., is a professor of

environmenta] health at the University of

Cincinnati College of Medicine. She was

the Assistant Secretary of Labor for the

Occupational Safety and Health

Administration (OSHA) from 1977 through

January, 1981, during which time OSHA's

lead standard was promulgated. Thus, she

was the government official responsible for

reviewing and evaluating the submissions

regarding OSHA's lead standard.

PHILIP J. LANDRIGAN, M.D., is the

Director of the Division of Environmental

A-27

and Occupational Medicine at the Mount

Sinai School of Medicine. Previously, he

held numerous positions at the National

Institute for Occupational safety and

Health (NIOSH) and the Centers for Disease

Control (CDC), including Chief of

Environmental Hazards Activity, Cancer and

Birth Defects Division at cDc.

DONALD R. MATTISON, M.D., is a

Professor of Obstetrics and Gynecology and

Professor of Interdisciplinary Toxicology

at the University of Arkansas for Medical

Sciences. He is the Chairman of the Human

Toxicology and Risk Assessment Program,

National Research Council of the National

Academy of Sciences and has published

extensively on reproductive toxicology.

JOHN F. ROSEN, M.D., is the Head of

the Division of Pediatric Metabolism at the

Albert Einstein College of Medicine. In

A-28

1984, he served as the Chairman of the

Centers of Disease Control's Advisory

Committee on Childhood Lead Poisoning

Prevention, which has been cited by Johnson

Controls in support of its policy. opr.

Rosen does not concur with the conclusions

drawn by defendant from this report.

JEANNE STELLMAN, PH.D., is Associate

Professor of Clinical Health, School of

Public Health, Columbia University. Dr.

Stellman has directed the Women's

Occupational Health Resource Center, a non-

profit organization that generates

information regarding the occupational

health needs of women workers through

authoritative publications and research.

DIRECTORS OF OCCUPATIONAL MEDICINE

PROGRAMS

The following are directors of

university and hospital affiliated

A-29

occupational medicine programs. As

specialists in the relationship between

diseases and work or environment, they are

especially concerned with preventing

occupational health hazards. Their

organizational affiliations are listed for

identification purposes only:

EDDY BRESNITZ, M.D., Director of

Occupational Medicine at the Medical

College of Pennsylvania, Philadelphia,

Pennsylvania.

PHILIP J. LANDRIGAN, M.D., Director of

the Division of Environmental and

Occupational Medicine at the Mount Sinai

School of Medicine, New York, New York.

MARK CULLEN, M.D., Director of Yale-

New Haven Occupational Medicine Program.

MARVIN S. LEGATOR, M.D., Director of

Environmental Toxicology, Department of

Preventive Medicine and Community Health,

University of Texas Medical Branch.

LAURA WELCH, M.D., Director of the

Occupational Medicine Program at the George

Washington University Medical Center,

Washington, D.C.

A-31