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

hh ta : oes beh - FO a a i er

No. 89-1215

IN THE

SUPREME COURT OF THE UNITED STAT

October Term, 1989

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, ET AL.,

Petitioners,

Vv

JOHNSON CONTROLS, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for

the Seventh Circuit

BRIEF AMICI CURIAE OF THE ASSOCIATION OF THE BAR

OF THE CITY OF NEW YORK, THE ASSOCIATION OF BLACK

WOMEN ATTORNEYS, THE COMMITTEE ON WOMEN’S

RIGHTS OF THE NEW YORK COUNTY LAWYER'S ASSOCIA-

TION, AND THE NEW YORK CITY COMMISSION ON

HUMAN RIGHTS, IN SUPPORT OF PETITIONERS

SHELDON OLIENSIS SIDNEY S. ROSDEITCHERK

JANE BOOTH SARA L. MANDELBAUM

EVELYN COHN PAUL, WEISS, RIFKIND,

JANET GALLAGHER WHARTON & GARRISON

JANICE GOODMAN 1285 Avenue of the Americas

ARTHUR LEONARD New York, New York 10019-6064

oe of Record) (212) 373-3000

IM WILLIAMS

THE ASSOCIATION OF THE BAR

OF THE CITY OF NEW YORK

42 West 44th Street

New York, New York 10036

(212) 382-6600

TABLE OF CONTENTS

Page

SE CORNED 5 6b oven cpcccescccevccccecconess ii

SOU Rmemee ns Ce ASICS CURUAL ...... ccc cccccccccccccccees 2

ey So ccreisncnesscotsvesncsoesses 4

BE Soe andrecnvccsececcesecececovescvcvesesenceses 7

I. JOHNSON CONTROLS’ POLICY RESURRECTS HARM-

FUL STEREOTYPES ABOUT WOMEN WORKERS REMI-

NISCENT OF MULLER V. OREGON, IN VIOLATION OF

A. Title VII Forbids Employers To Exclude

Women Workers Based On Stereotypes ............... 7

B. Johnson Controls’ Policy Impermissibly

Relies Upon Misleading Stereotypes That

Harm Women, In Violation Of Title VII ............. 10

1. As In Muller, The Court Of Appeals’

Decision Relied On Unfounded

Stereotypes About Women’s

I iu 6c baiuuhinbebondee ds vescensese 11

2. As With Muller, The Court Of Appeals’

Decision Causes Women Serious

ke ween nenseeeen 15

GREEDY cacicensccccoceves {geesksesstcecceeseewsses 19

TABLE OF AUTHORITIES

CASES Page(s)

Albemarle Paper Co. v. Moody, 422 U.S. 405

GEPTED sccccccccccseesseseepenenannee eee 9

Arizona Governing Committee v. Norris, 462

CLE BECP CRIED oc ccccocccncuncssnucd: Geen 10

Bradwell v. Illinois, 83 U.S. (16 Wall.)

RID QRIEED 0 ccc cccveccccesdescunenseciennnanene 2

California Fed. Sav. and Loan Ass'n v. Guerra,

G79 US, Tile GIO 0 ov ccccvcesccenesssune nee 8

City of Los Angeles, Dept. of Water & Power v.

Banhart, G55 UB. TER CITED os cvccccceccevceccesnan 9, 10, 11

Frontiero v. Richardson, 411 U.S. 677 (1973) .........cccceeeeeee 9

General Elec. Co. v. Gilbert, 429 U.S. 125

CEPT oc cccccccevccesséeeceeeenensunnnaee 8

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

5565 (Uda Cie. 15BO) .... cc ccccccvcescecneeusnnanee 18

Ge ve Goodall, 3 Wis. TIA CITB o.oo cccceccecsssnseeee 2

Mississippi University for Women v. Hogan,

GSB US. FEB CUBED «oo cc cccccccccccsccessacnnneee 9

Muller v. Oregon, 208 U.S. 412 (1908) ..............00 cee passim

Gor ¥v. Osv, GS US. SEB CDAD)... oo co cceccssstescecccunnnenel 9

Oil, Chemical and Atomic Workers Union v.

American Cyanamid, Co., 741 F.2d 444

GDL. Cie. TRB 2c ccccescesesceccuanannnnnee 13

Page(s)

Price Waterhouse v. Hopkins, U.S. __,

eee S CUG Sess bese cecsccccccccccccccees 8

Roberts v. United States Jaycees, 468 U.S.

EES OE OE = LS PE PPP ETT TOOT TTT T ELIT TT Tee 9

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

ERE SPT EEE EEE EEE 9

UAW v. Johnson Controls, Inc., 886 F.2d 871

ES EE ETO TETTETTTTTT TTT TTT passim

United Steelworkers of America v. Marshall,

EE EE eee 12, 13

STATUTES ‘

ED oc ccc cccccccccccescccccccccees 7

Ness cc ceesccececcecocccceces 8

29 U.S.C. § 651 (1982) ........... 0 12

REGULATION

ED oss ccc cncccccccccccccccccees 13, 16

OTHER

J. Bertin, Reproductive Hazards in the Workplace,

Reproductive Laws for the 1990s (Cohen & Taub

Nee Leake ceccecccescccccccccccees 13

B. Babcock, A. Freedman, E. Norton, S. Ross,

Sex Discrimination and the Law (1973) ..........665005: 16, 17

J. Baer, The Chains of Protection (1973) .........-.+0005: 11, 17, 18

ill

E. F. Baker, Protective Labor Legislation,

116 Col. U. Studies in Hist., Econ., and Pub. L. ........... 17

Becker, From Muller v. Oregon to Fetal

Vulnerability Policies, 53 U. Chi. L. Rev. 1219

SE Cah seca nods ean bbby 6 ROUR CARERS CR has choo edee? 17

Brief of Defendant in Error, Muller v. Oregon,

No. 107, U.S. Supreme Court, October Term, 1907 ........ 14

Bureau of National Affairs, Personnel Policies

Forum, Survey No. 80, Sex and Title VII,

PT PRs ccdckceksaseneehasnieseduetasvesucbaneeuan 18

Gallagher, Prenatal Invasions and Interventions:

What's Wrong With Fetal Rights,

rn 15

A. Kessler-Harris, Out to Work (1982) ............0 cece eee 17

M. Landes, The Effect of State Maximum Hours

Laws on the Employment of Women in 1920,

ee ie Gs S RPO of oo ve ee cceccvntecenaeieseuus 17

S. Rep. No. 95-331, 95th Cong., Ist Sess. (1977) ................ 8

U.S. Department of Commerce, Bureau of Census,

Statistical Abstract of the United States (1989) .............. 11

iv

No. 89-1215

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, ET AL.,

Petitioners,

v.

JOHNSON CONTROLS, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for

the Seventh Circuit

BRIEF AMICI CURIAE OF THE ASSOCIATION OF THE BAR

OF THE CITY OF NEW YORK, THE ASSOCIATION OF BLACK

WOMEN ATTORNEYS, THE COMMITTEE ON WOMEN’S

RIGHTS OF THE NEW YORK COUNTY LAWYER’S ASSOCIA-

TION, AND THE NEW YORK CITY COMMISSION ON

HUMAN RIGHTS, IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE +/

The Association of the Bar of the City of New York is comprised

of more than 18,500 lawyers. While most practice in the New York City

metropolitan area, the Association has members in every state and in

more than 40 countries. The Association has long advocated the

elimination of gender-based discrimination in employment, including

discrimination based on the capacity to become pregnant. Policies

that exclude women based on reproductive capacity frustrate the goal

of economic equality for women. If such policies are permitted to

stand, as many as twenty million high-paying industrial jobs may be

foreclosed to women workers. UAW v. Johnson Controls, Inc., 886 F.2d

871, 914 (7th Cir. 1989) (Easterbrook, J., dissenting).

We submit this brief in support of the women workers who are

challenging Johnson Controls’ policy because we are acutely aware

that women lawyers were also at one time barred from pursuing their

livelihood. Like the Court of Appeals below, courts barring women

from practicing law indulged in a “romantic paternalism” that

characterized women as primarily wives and mothers. For example,

the Supreme Court of Wisconsin excluded Lavina Goodell because:

The peculiar qualities of womanhood, its gentle graces, its

quick sensibility, its tender susceptibility, its purity, its

delicacy, its emotional impulses, its subordination of hard

reason to sympathetic feeling, are surely not qualifications for

forensic strife.

In re Goodell, 39 Wis. 232 (1875). And a distinguished member of this

Court voted to exclude Myra Bradwell based upon the assumption that

most women would marry, and have as their “paramount destiny and

mission ...the noble and benign offices of wife and mother.”

Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 446 (1872) (Bradley, J.,

concurring).

1/ _ The parties have consented to the filing of this brief. Letters of co

, ! t

with the Clerk of the Court. —

a ee EN RR te a

Discrimination against women in law continued long after the

paternalistic rationale for it had fallen into disfavor. Indeed, from

1870, when the Association was formed, until 1937, women were

excluded from its membership. 2/ Myriad reasons were given for such

discriminatory treatment, but none actually addressed the ability of

women to perform as lawyers.

We believe that so-called fetal protection policies are similarly

symptomatic of a lingering refusal to concede that women are both

able and entitled to choose their own vocations as well as to-make

decisions about how their employment affects the well-being of their

already existing and future children. Masked as a benign effort to

protect potential fetuses, Johnson Controls’ policy and others like it

serve principally to forestall women’s struggle for economic equality.

The Association of Black Women Attorneys was formed in 1976

and is comprised of 490 Black women attorneys, law students and

other individuals interested in increasing the number of Black women

attorneys in New York State. We join this brief on behalf of the women

workers challenging Johnson Controls’ policy and the decision below

upholding it because both severely limit women’s employment

opportunities in violation of the language and spirit of Title VII.

The Committee on Women’s Rights of the New York County

Lawyers’ Association (“NYCLA”) is composed of women and men

attorneys who concentrate their efforts on the elimination of

discrimination against women. Founded in 1908, NYCLA is a bar

association with a membership of approximately 11,000 attorneys,

which often participates as amicus curiae in litigation directed to

furthering women’s civil rights.

2/ ‘The Association has gained considerably by admitting women to its ranks.

Today, many women are actively involved in the Association’s committees. Seven

members of the Executive Committee are women, including its Chair, and women lead

‘more than twenty-five standing and special committees.

of

The New York City Commission on Human Rights (“ihe

Commission”) is a local administrative agency charged with

eliminating all prohibited forms of discrimination within the City of

New Yozk, including gender discrimination in employment. N.Y.C.

Admin. Code Sec. 8-101 et seq. The Commission adjudicates claims of

employment discrimination under local law, and as a section 706

deferral agency, the Commission also adjudicates employment

discrimination claims filed under Title VII.

The Commission takes seriously its public charge that all New

Yorkers be afforded full employment opportunities free from

discrimination on the basis of gender. Thus, the Commission is deeply

concerned about the ways in which fetal protection policies reinforce

sex-based occupation segregation and thereby exclude women from

better paying jobs traditionally held by men.

SUMMARY OF ARGUMENT -

Despite the conclusions of federal regulators and health officials

that both men and women face hazards to their reproductive systems

and other health risks from exposure to lead, the Court of Appeals

deferred to Johnson Controls’ sweeping decision to exclude only

women from lead exposure positions in its battery plant. The breadth

of this ban on women workers of “childbearing capacity” is striking.

The policy presumes that all women under age 70 are fertile absent

medical proof of sterility. It extends even to jobs with no risk of lead

exposure, but which might lead to a promotion into such a job.

In upholding this policy, the Court of Appeals specifically

distanced itself from the tradition of Muller v. Oregon, 208 U.S. 412

(1908), which sustained a “protective” labor law curtailing women’s

work hours. Nevertheless, the decision below is in fact a contemporary

version Of Muller in its acquiescence to outmoded notions about

women’s reproductive and economic lives, as well as in its selective

reliance on science to perpetuate and bolster those notions. Both

Johnson Controls’ policy and the decision to uphold it resurrect

archaic stereotypes that have long since been rejected by Congress,

this Court, and the American public.

c

In language that is now regarded as paradigmatic of stereotypical

notions of women workers, the Muller Court stated:

That women’s physical structure and the performance of

maternal functions place her at a disadvantage in the struggle

for subsistence is obvious. This is especially true when the

burdens of motherhood are upon her. Even when they are not,

by abundant testimony of the medical fraternity, continuance

for a long time on her feet at work, repeating this from day to

day, tends to injurious effects upon the body, and as healthy

mothers are essential to vigorous offspring, the physical

well-being of woman becomes an object of the public interest

and care in order to preserve the strength and vigor of the race.

208 U.S. at 421.

Under Title VII, such sexist assumptions about women’s

“physical structure” and “maternal functions” can no longer serve as

justifications for gender-based discrimination. This is true whether

the purported focus of concern is “the strength and vigor of the race”

or, as here, the health of a statistically improbable fetus.

The Muller Court upheld a law limiting women’s work hours on

the ground that healthy mothers would ensure the health of “future

generations.” The court below upheld a policy excluding fertile women

workers, ostensibly to protect fetal health. Both decisions view women

solely in their reproductive capacity, reinforce the notion that women

should be childbearers and homemakers, and denigrate women’s

participation in the workforce. Both decisions assume that only

women are responsible for the health and caretaking of future

generations. And both decisions reinforce the demeaning perception

that women cannot make the decisions that most vitally affect their

individual lives as well as the lives of their existing and potential

families. Like the court below, the Muller court believed that its

conclusions were compelled by science. It is now apparent, however,

that the Muller Court succumbed to myth. Though perhaps less

explicitly, the Court of Appeals similarly fell prey to ideas wholly at

odds with scientific fact and the reality of women’s lives.

of@

As Judge Posner recognized, however, the an

Johnson Controls and Muller is not a perfect one. pe 3 n ane

(Posner, J., dissenting). Whereas the Oregon legislature believed it was

protecting not only the “strength and vigor of the race” but also

women, Johnson Controls purports only to protect fetuses.3/ It would

thus be a misnomer to characterize Johnson Controls’ policy as

“paternalistic” toward women: Here, the asserted goal of fetal

Protection is to be achieved not for women’s benefit, but rather at

women’s expense.

As with the statute sustained in Muller, the practical effect of

J ohnson Controls’ policy and the decision upholding it is to deepen sex

segregation of the workforce, to deprive women of their livelihood, and

to send the message to women that, indeed, their anatomy should be

their destiny. Like the statute sustained in Muller, the employer poli

upheld by the court below cannot coexist with Title VII and red

Pregnancy Discrimination Act. Amici urge this Court to reverse that

decision and to declare all policies that exclude women based u

reproductive capacity invalid per se under prevailing: law.

3/ _ Its policy, however, undermines even th i

, » rmi at goal because it: (1) irrational j

to only one class of vulnerable individuals; and (2) ignores the Ste remen om

we _ employee health benefits to fetal health. For further development of the

public health Issues raised by this case, “see Brief Amici Curiae submitted by the

Amenicin Public Health Association and others.

i ects eennersen

|

|

|

'

es

ARGUMENT

1,

JOHNSON CONTROLS’ POLICY RESURRECTS HARMFUL

STEREOTYPES ABOUT WOMEN WORKERS REMINISCENT

OF MULLER V. OREGON, IN VIOLATION OF TITLE VII.

The assumptions about women’s proper place in society that

provided the rationale for Muller v. Oregon are now an illegal basis,

under Title VII, for employer decisions. The history of protective labor

legislation has taught that even well-meaning statutes, intended to

“protect” women and their potential offspring, served to entrench

economic inequality between the sexes, plaeimg women not so much

“on a pedestal” as “in a ”-Title VII bars not only such statutes,

but also loyér policies that exclude women based upon their

uctive function.

This case starkly illustrates how reliance on stereotypes of

women also harms men. Johnson Controls’ policy treats men as though

they were invulnerable to the toxic effects of lead, notwithstanding the

substantial data to the contrary presented to the court below. The

result: Men get less protection, and women get fewer jobs.

A. Title VII Forbids Employers To Exclude Women

Workers Based On Stereotypes.

Title VII's plain language forbids employers from discriminating

on the basis of sex unless sex is a bona fide occupational qualification

(“bfoq”). 42 U.S.C. §2000e-2(e) (1982). In 1978, Congress enacted the

Pregnancy Discrimination Act, which amended Title VII to clarify

that sex discrimination includes distinctions based on “pregnancy,

childbirth, and related medical conditions.” 42 U.S.C. §2000e(k). ¢/ In

4/ As Justice White and the Chief Justice have recognized, the Pregnancy

Discrimination Act “gave added meaning to discrimination on the basis of sex”; and it

means exactly “what it says in a situation where it is directly implicated.” California Fed.

Continued

so doing, Congress rejected this Court’s view i

view in General Elec.

os v.Gilbert, 429 U.S. 125 (1976), that policies affecting persons with

the capacity to become pregnant could be facially “neutral,” and made

clear that such policies are in f. i iscrimi

act facially discrim i

waitin @ y inatory against

Congress thus recognized that discrimination based on

unfounded assumptions about the relationship between women’s

capacity to bear children and their ability to perform certain work was

simply inconsistent with the goal of guaranteeing women’s civil

rights. */ Moreover, Congress recognized that women’s Capacity to

become pregnant had unfairly served as the greatest obstacle to

women’s full integration into the workplace. 7/

Sav. and Loan Ass'n v. Guerra, 479 U.S. 272

: : , , S. 272, 107 S. Ct. 683, 698 (1 j

—- It says that “women affected by pregnancy, childbirth, a. er he

- oo ae treated the same for all employment related purposes . . . as other

not so affected but similar in their ability or inabili ” 4

ty to work.” 42 U.S.C.

foam tice ag Price Waterhouse v. Hopkins, ___ U.S. ___, 109 S. Ct. 1775, 1811

» Ys + dissenting) (“by definition sex is the but-for cause of the

employment decision” where the basis of the decision is pregnancy).

5/ Amici adopt rather than reiterate petiti ,

petitioners ment with

— burden of proof under Title VII. Irrespective of Sabesie of whe pe oe

1s Court, amici believe that Johnson Controls’ policy and the lower court's Muller-like

analysis of that poli

= policy are fundamentally . Odds with the language and spirit of Title

6/ Amending Title VII, Civil Ri

See 33 ast itle VII, Civil Rights Act of 1964, S. Rep. No. 95-331, 95th Cong., Ist

7/ That this recognition served as the i

; im Pate EO oat

is apparent from the legislative history: peius for the Pregnancy Discrimination Act

Women are still subject to the stereot

ype that all women are margi

pane Until a woman passes the child-bearing age, she is dan.

a yers as potentially pregnant. Therefore, the elimination of

iscrimination based on pregnancy in these employment practices . . . will

go a lon t idi iti

ate — oward providing equal employment opportunities for

S. Rep. No. 95-331, 95th Cong., Ist Sess. at 6-7 (1977).

ofa

With the passage of Title VII, protective legislation of the kind

upheld irmmller v. Oregon became unenforceable, and sex-specific

labor statutes were uniformly struck down. Courts recognized that

Congress, in enacting Title VII, established a policy that individuals

must be judged as individuals, and not on the basis of characteristics

generally attributed to groups defined by sex, race, religion, color or

~ national origin. Courts recognized that protective labor legislation

thwarted this goal. See Rosenfeld v. Southern Pac. Co., 444 F.2d 1219

(9th Cir. 1971). See also Albemarle Paper Co. v. Moody, 422 U.S. 405,

423 n. 18. (1975).

This Court has often noted the harmful effects of sex stereotyping

on women: “[W]e are beyond the day when an employer could evaluate

employees by assuming or insisting that they matched the stereotype

associated with their group, for ‘[i]n forbidding employers to

discriminate against individuals because of their sex, Congress

intended to strike at the entire spectrum of disparate treatment of men

and women resulting from sex stereotypes.” Price Waterhouse V.

Hopkins, __ U.S. __, 109 S. Ct. 1775, 1791 (1989) (quoting City of

Los Angeles, Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 n.13

(1978)). 8/

8/ In the equal protection context, this Court has repeatedly denounced reliance on

“(a)rchaic and overbroad generalizations” about women’s “role” as childbearers and the

value of women’s work. See Mississippi University for Women v. Hogan, 458 U.S. 718,

725-26 (1982). See also, Orr v. Orr, 440 U.S. 268, 283 (1979) (noting “inherent risk of

reinforcing stereotypes about the ‘proper place’ of women and their need for special

protection”); Frontiero v. Richardson, 411 U.S. 677, 684-85 (1973) (provision of special

benefits has “put women, not on a pedestal, but in a cage.”). In Roberts v. United States

Jaycees, 468 U.S. 609, 625 (1984), this Court observed:

[D]iscrimination based on archaic and overbroad assumptions about the

relative needs and capacities of the sexes forces individuals to labor under

stereotypical notions that often bear no relationship to their actual

abilities. It thereby deprives persons °f their individual dignity and denies

society the benefits of wide participation in political, economic, and

cultural life.

B. Johnson Controls’ Policy Impermissibly

Relies Upon Misleading Stereotypes Of Women,

In Violation Of Title VII.

The stereotypes and generalizations embodied in Johnson

Controls’ exclusionary policy and reflected in the lower court’s opinion

include: (1) that all fertile women are likely to become pregnant;

(2) that healthy pregnancies depend exclusively upon women; (3) that

women’s employment and wage-earning are not essential to their

well-being or to the well-being of future generations; and (4) that

women are incapable of autonomous, ethical decision-making about

issues relating to themselves and their families.

The Court of Appeals insists that its decision, unlike Muller, is

based on “real” differences between men and women. Johnson

Controls, 886 F.2d at 898. If by “real” the court meant “biological,” the

distinction is meaningless. Muller was aiso based upon “obvious,”

“real” differeuces — differences that Title VII now makes irrelevant,

absent a showing that biology is related to ability to perform the job.

“Real” or biological differences, upon which stereotypes have been

based, have served as the greatest impediment to women’s full

integration into the workforce. If employers need only invoke “real”

differences to justify policies aimed at pregnant or potentially

pregnant persons, Title VII will become virtually meaningless for

women.

Moreover, even “real” differences between men and women, such

as women’s greater longevity, do not justify gender-based policies that

disregard individual variation among women. This Court has held that

Title ViI bans the use of accurate, sex-based actuarial tables in setting

pension and life insura ce rates. Manhart, 435 U.S. 702 ( 1978).

Although women as a group live longer than men, the Court held, Title

VII requires that employees be treated as individuals. Jd. at 707-11.

See also, Arizona Governing Comm. v. Norris, 463 U.S. 1073, 1084-86

(1983).

Although protective laws and the Muller rationale which

sustained them are now “museum pieces,” Johnson Controls, 886 F.2d

=

oon a a

at 913 (Easterbrook, J., dissenting), the Court of Appeals’ decision

below closely parallels Justice Brewer’s rationale in Muller in its

acquiescence to unfounded generalizations about women’s lives.

1. As In Muller, The Court Of Appeals’

Decision Relied On Unfounded Stereotypes

About Women’s Reproductive Lives.

Perhaps the most compelling indication of reliance on

generalizations about women is the extreme over-inclusiveness of the

policy itself. */ Johnson Controls’ policy is unconscionably overbroad.

The Court of Appeals’ decision fails to take account of social reality in

that few women who work at Johnson Controls will actually become

pregnant. Whether an individual woman will become pregnant and

whether she will bear a child are influenced by various factors,

including but not limited to marital status, age, number of existing

children, pre-existing medical conditions that might complicate

pregnancy, method of contraception, sexual orientation, and attitude

toward abortion. Indeed, the birth rate is near zero at age 40, with only

a .41 percent probability that a woman between the ages of 40 and 44

will give birth, and a .02 percent probability that a woman age 45 to 49

will give birth in a given year. U.S. Department of Commerce, Bureau

of Census, Statistical Abstract of the United States 62 (1989) (1986 rates).

Moreover, four out of five sexually active, fertile women not seeking

pregnancy use contraceptives. '°/ Thus, the generalization that all

9/ Protective labor laws for women were similarly overbroad. As one scholar has

written:

[T]he reasoning in Muller and its successors was as faulty as the laws were

overinclusive . . . . {I]t is difficult to see how [women’s supposed physical

and socioeconomic weaknesses] justified denial of bar admission in 1869

[or] prohibition of night work in 1915 and 1924.

J. Baer, The Chains of Protection, at 130-31 (1973) (hereinafter “Baer”).

10/ Specifically, 83.2% of sexually active women between the ages of 15-44 of

childbearing capacity, who are not intentionally seeking pregnancy, use contraceptives.

See Statistical Abstract at 66.

e tie

women workers are actually or imminently pregnant is simply not a

true one; and under Title VII, “[e]ven a true generalization about the

class is an insufficient reason for disqualifying an individual to whom

the generalization does not apply.” Manhart, 435 U.S. at 708 (emphasis

added).

Moreover, of those women who do become pregnant, most will

have blood levels below 30ug/dl; and of those few whose blood levels

exceed 30 ug/dl, most will nevertheless bear healthy children. Johnson

Controls, 886 F.2d at 913 (Easterbrook, J., dissenting). “Concerns

about a tiny minority of women cannot set the standard by which all

are judged.” Jd. Title VII protects individuals, and “{i)ndividual risks,

like individual performance, may not be predicted by resort to

classifications proscribed by Title VII.” Manhart, 435 U.S. at 710.

Johnson Controls is thus statutorily prohibited from treating all

women workers as though actually pregnant or on the verge of

becoming so. '1/

In concluding that “the risk of transmission of harm to unborn

children is confined to fertile female employees,” the Court of Appeals

simply discredited the scientific evidence before it that was at odds

with its stereotypic view of women’s reproductive lives. UAW v.

Johnson Controls, 886 F.2d at 890. Although presented with copious

evidence that lead is a toxin that affects all human beings, '2/ the court

below discounted this evidence as it applies tomen. The court thereby

11/ Johnson Controls’ policy not only violates Title VII, but it also contravenes the

spirit of the Occupational Health and Safety Act, 29 U.S.C. § 651 et seq. (OSH Act). The

OSH Act requires employers to maintain a workplace “free from recognized hazards

that are causing or likely to cause death or serious physical harm,” 29 U.S.C. § 654(aX1),

and authorizes and directs the Secretary of Labor to promulgate health and safety

standards to assure “that no employee will suffer material impairment of health or

functional capacity . . .” 29 U.S.C. 655 (bX‘5). United Steelworkers of America v. Marshall,

Continued

- 12 -

disregarded the conclusions of the federal agency charged with

monitoring workplace safety. The Oc-upational Health and Safety

Administration (“OSHA”) has announced that “because of the

demonstrated adverse effects of lead on reproductive function in both

the male and female as well as the risk of genetic damage of lead on

both the ovum and sperm, OSHA recommends a 30ug/100g maximum

permissible blood level in both males and females who wish to bear

children.” 29 C.F.R. § 1910.1025, Appendix A, p. 185 (1989).

By excluding women instead of making the workplace safe for

men’s reproductive systems as well as women’s, Johnson Controls fails

adequately to protect either men or men’s potential offspring. '3/ Men

thus continue to face reproductive risks, and both they and their

potential children may face other health risks associated with lead.'4/

647 F.2d 1189, 1256 n.96 (D.C. Cir. 1980) cert. denied, 453 U.S. 913 (1981) (OSHA has

authority to promulgate occupational standards that undermine the use of exclusionary

policies.) But see Oil, Chemical and Atomic Workers Union v. American Cyanamid, 741

F.2d 444 (D.C. Cir. 1984) (OSH Act's “general duty clause” does not prohibit the use of

exclusionary policies).

12/ See, e.g., Deposition of Silverstein, Record at pp. 9-14 (both men and women suf

fer effects of lead exposure); Deposition of Legator, Jd. at pp. 15-25, 90-95 (effects of

lead exposure on male reproductive system: spontaneous abortion; chromosomal

damage; behavioral anomolies in offspring; teratospermia; effects on spermatogenesis).

The court ignored this evidence on the ground that it was based on animal studies,

despite significant testimony that animal studies are relevant to the human experience

and that human epidemiological data also confirmed the animal studies. See Deposition

of Silverstein, Jd. at pp. 17-19; Deposition of E.K. Silbergeld, Jd. at 43-44. Note that the

Court of Appeals 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. See,

e.g., Deposition of E.K. Silbergeld, Jd. at pp. 49-52.

13/ The importance of men’s labor is generally assumed. Therefore, meri either

remain employed, as here, under conditions hazardous to their health, or the workplace

is restructured so they can continue working. For example, in 1977, it was found that

men who worked with the pesticide Dibromochloropropane (“DBCP”) suffered from

low and zero sperm counts. Studies showed DBCP to be carcinogenic in animals and

capable of causing genetic disease. DBCP was therefore excluded from the workplace,

not men. J. Bertin, Reproductive Hazards in the Workplace, Reproductive Laws for the

1990s, Cohen & Taub, eds., at 280 (1989).

14 Lead exposure poses risk to th« heart, brain, kidneys, liver, and the nervous

system. See 29 C.F.R. § 1910. 1025, Appendix A.

- 13 -

Similarly, the Muller Court read and considered the now famous

brief submitted by Louis D. Brandeis and Josephine Goldmark, which

included evidence that excessive working hours are harmful to men

and women. '$/ The Muller Court nevertheless concluded that there

were scientific reasons for limiting women’s employment. The

“science” relied upon in Muller now seems like a relic. 1¢/

Summarizing the Brandeis/ Goldmark brief, the Muller Court stated:

The reazons for the reduction of the working day to ten

hours — (a) the physical organization of women, (b) her

maternal functions, (c) the rearing and education of

children, (d) the maintenance of the home — are all so

important and so far reaching that the need for such

reduction need hardly be discussed.

15/ See, e.g., Brief for Defendant in Error, Muller v. Oregon, No. 107, U.S. Supreme

Court, October Term, 1907 at 24-26.

16/_ For example, the Brandeis/Goldmark brief, quoting from Report of the Maine

Bureau of Industrial Labor and Statistics, at 142 (1888), argued that:

Woman is badly constructed for the purpose of standing eight to ten hours

upon her feet. I do not intend to bring into evidence the peculiar ’

and nature of the organs contained in the peivis, but to call

peculiar construction of the knee and the shallowness of the

delicate nature of the foot as part of a sustaining column. The knee joint of

the woman is a sexual characteristic. Viewed in front and extended, the

joint in but a slight degree interrupts the gradual taper of the thigh into the

leg. Viewed in a semi-fixed position, the joint forms a smooth ovate

spheroid. The reason of this lies in the smallness of the patella in front, and

the narrowness of the articular surfaces of the tibia and femur, and which

in man form the lateral prominence, and this is much more.perfect as a

sustaining column than that of a woman. The muscles which keep the

body fixed upon the thighs in the erect position labor under the

disadvantage of shortness of purchase, owing to the short distance,

compared to that of a man, between the crest of the ilium and the great

trochanter of the femur, thus giving to man a much larger purchase on the

leverage existing between the trunk and the extremities. Comparatively

the foot is less able to sustain weight that of a man, owing to its shortness

and more delicate formation of the tarsus and metatarsus.

Brief for Defendant in Error, Muller v. Oregon, No. 107, U.S. Supreme Court, October

Term, 1907, at 19.

ota

208 U.S. at 419, note. P

Although the prejudice is more subtle in Johnson Controls, the

court’s selective use of scientific evidence to bar women’s employment

is really a contemporary version of Muller’s distortion of science to

bolster prevailing prejudices of the day. '7/

2. As With Muller, The Court Of Appeals’ Decision

Causes Women Serious Economic Harm.

The Court of Appeals’ disproportionate focus on women’s

reproductive capacity results in a view of women as marginal,

nonessential members of the workforce. The notion that women

should sacrifice their economic livelihood to further the apparent goal

of enhancing fetal health implies that “the interests of the next

generation always trump the interests of living women.” Johnson

Controls, 886 F.2d at 913 (Easterbrook, J., dissenting).

The Court of Appeals’ “balancing” of the interests of the

employer, the employee, and the fetus, is fundamentally misguided.

First, Title VII has already struck that balance in favor of the

employee. Second, it is both irrational and counterproductive, from a

public health point of view, to pit woman against fetus, as though their

interests were adverse. Women who want children want healthy fetuses

and often take great risks to ensure the well-being of their future

children. 8; Third, women’s fundamental interest in

self-determination is entirely missing from the court’s balancing

process. The suggestion that employers may properly substitute their

judgment for a woman’s when it comes to the care of her potential

17/ Scholars have observed that the way scieiic. is used is itself often suffused with

value judgments and prejudice. See, e.g,., Men's Ideas, Women's Realities: “Popular

Science” 1870 to 1915, L. Newman, ed., (1984); S. Gould, The Mismeasure of Man (1981).

18/ See generally, Gallagher, Prenatal Invasions and Interventions: What's Wrong with

Fetal Rights, 10 Harv. Women’s L. J. 9 (1987).

oe 1§ «

offspring or her need for employment, is both humiliating and

insulting to women.'9/

The degree to which the court below underestimates the

importance of a woman’s employment to herself, her family and to

society, is apparent from the language it uses in characterizing

women’s interest in work: Most women, as most men, do not work

simply because of an “interest in financial reward”; nor are most

women merely secondary wage-earners who work merely “because of

their desire to better the family’s station in life.” Johnson Controls, 886

F.2d at 883 and 897, respectively. Rather, most women work because

they must. The court’s implication that women work merely to

supplement the income of a male wage-earner is disturbingly

reminiscent of a time when it was thought that many women worked to

earn “pin money.” 2°/

_ 19/ Women are certainly no less capable than men of taking the precautionary

measures required by OSHA to avoid excessive blood levels. The mandatory training

program instructs men and women who work in lead exposure positions as to the

purpose, proper selection, fitting, use, and limitations of various protective equipment,

including respirators and special clothing. 29 C.F.R. § 1910. 1025(1). Ali employees are

further informed that any employee may be removed from work if and when the average

of three consecutive blood sampling tests show a lead level at or above 50 ug/100g of

whole blood. 29 C.F.R.§ 1910. 1025(kX2). Thus, both men and women have the

information with which to make responsible decisions, and “ [nJo legal or ethical

principle compels or allows Johnson to assume that women are less able than men to

make intelligent decisions about the welfare of the next generation...” Johnson Controls,

886 F.2d at 913 (Easterbrook, J., dissenting).

20/_ Attheclose of World War II, the Labor Department embarked on a campaign to

convince women to relinquish their jobs to make room for the newly returned veterans

and other “necessary” workers. As part of its 18-point program for “transition to a

peacetime economy,” the Labor Department set out to “retir[e]” women who were

merely pin-money workers and come into the labor market only because of the war

need, in order to make opportunity for girls who must work regularly.” Ravalt, The

Equal Rights Amendment and the Draft, National Business Women (November 1972),

citing the New York Times, June 2, 1944, p. 10 (quoted in B. Babcock, A. Freedman, E.

Norton, S. Ross, Sex Discrimination and the Law, 260 (1973) (hereinafter “Babcock”).

o =

Johnson Controls’ policy causes the same adverse economic

consequences for women brought about by protective labor laws. 2'/

Social reformers who supported such laws sought to improve women’s

lot; however, “special” laws for women reinforced stereotypes of

women as wives and mothers, and devalued their importance as

wage-earners. 22/ In addition to solidifying gender segregation in the

workplace, protective legislation effectively excluded women from

“male” occupations and from promotion opportunities, 23/ depressed

wages in women-intensive jobs, #4/ and limited women’s earning

capacity. 25/ Even with the aid of Title VII and other legislation,

women today are far from achieving economic parity with men. 26/

21/__It is no accident that employer policies excluding women based on reproductive

capacity arise in industries in which women’s labor is perceived as expendable. Becker,

From Muller v. Oregon to Fetal Vulnerability Policies, 53 U. Chi. L. Rev. 1237-38 (1986).

As Becker points out, employers have an economic incentive for perpetuating the

marginality of women workers in traditionally male industries. Hiring women often

requires making accommodations that cost money, and men are frequently hostile to

nontraditional women workers. Jd. at 1240. Jobs for which women are considered

marginal often offer better wages and benefits than jobs in women-intensive industries.

It is thus ironic that fetal “protection” policies are most likely to arise “only when the

dangerous job offers a real advantage to the women and their living and potential

children.” Jd. at 1243.

22/ A. Kessler-Harris, Out to Work at 180, 184-185 (1982) (hereinafter

“Kessler-Harris”); Baer, supra note 9, at 95; Babcock, supra note 20, at 27-35.

23/_ E-F. Baker, “Protective Labor Legislation” 116 Col. U. Studies in Hist., Econ., and

Pub. L. 201, 554, 564, 625-26. According to a 1967 survey of 78 companies, 18% of

respondents reported that they did not hire women because of state protective laws.

Bureau of National Affairs, Personnel Policies Forum, Survey No. 80, Sex and Title VII

(April 1967). p. 7.

24; M. Landes, The Effect of State Maximum Hours Laws on the Employment of

Women in 1920, 88 J. of Pol. Econ. 476 (1980).

25/ _Kessler-Harris, supra note 22, at 190, 193-94.

26/ See Women’s Bureau, Office of the Secretary, U.S. Dep't of Labor, Fact Sheet

No. 88-2, Facts on Women Workers (1988).

~~ Fr

The Muller decision did not take into account women’s individual

interests at all, because it simply assumed that women’s interests and

those of “the race,” were identical, just as it assumed that “women”

were synonymous with “mothers.” 208 U.S. at 421. Muiler thus

“dec!are[d] that women may be denied rights which men enjoy . . . in

the interest of the larger society.” 27/ Similarly, the court below

discounted women’s autonomy interests, noting in passing that

“[mJore is at stake in this case than an individual woman’s

decision . . .” Johnson Controls, 886 F.2d at 897. The court concluded

that the burden should fall upon women, but not men, to sacrifice their

livelihood to “protect[ ] the offspring of all employees.” Id. at 885

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

1984)). However, Title VII requires, and good public policy counsels,

that the woman remain the locus of decision-making in weighing the

risks and benefits of employment to herself, her dependents, and her

potential children. 28/

In considering whether feasible alternatives existed to Johnson

Controls’ policy, the Court of Appeals quoted, no fewer than five

times, the admonition that “courts are generally less competent than

employers to restructure business practices . . .” Johnson Controls, 886

F.2d at 892, 893, 897, 901 (quoting Furnco Constr. Corp. v. Waters, 438

U.S. 567, 578 (1978)). Amici respectfully submit that ne:ther courts nur

employers are better situated or more competent than individual

women workers to make the decisions that most vitally affect their lives

and the lives of their existing and potential families.

27/ _— Baer, supra note 9, at 65.

28/ As discussed earlier, OSHA mandates that men and women in lead exposure

positions be provided with information and training, so that they may act responsibly.

See supra note 19, and accompanying text.

cP

CONCLUSION

For the foregoing reasons, amici respectfully request that

petitioners’ relief be granted.

Respectfully submitted,

ARTHUR LEONARD

(Conunsel of Record)

SHELDON OLIENSIS

JANE BOOTH

EVELYN COHN

JANET GALLAGHER

JANICE GOODMAN

JIM WILLIAMS

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