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

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No. 89-1215

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

INTERNATIONAL UNION, UNITED AUTOMOBILE

AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, et al.,

Petitioners,

JOHNSON CONTROLS, INC.,

Respondents.

On Writ of Certiorari To The United States

Court of Appeals for the Seventh Circuit

BRIEF FOR THE NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC., AND THE NATIONAL

BLACK WOMEN’S HEALTH PROJECT AS AMICI

CURIAE SUPPORTING PETITIONERS

Jrtius LEVONNE CHAMBERS

CHARLES STEPHEN RALSTON

RONALD L. ELLIS*

MARIANNE ENGCLMAN Lapa

CHARLOTTE RUTHERFORD

99 Hudson Street, 16th FI.

New York, NY 10013

(212) 219-1900

Counsel for Amici Curiae

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

(1) Whether a policy which explicitly

bars all women of child bearing capacity

from employment constitutes a prima facie

case of disparate treatment.

(2) Whether the business necessity

defense, available to rebut a prima facie

case of disparate impact, can be applied to

justify overt disparate treatment.

(3) Whether employers have a defense

under Title VII that permits them to main-

tain facially discriminatory policies and

unhealthy work environments.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..-++eeeeeeeee8>

TABLE OF AUTHORITIES ...-+++eeeeee8%

INTEREST OF AMICI CURIAE ..-+.+eee%:

SUMMARY OF ARGUMENT ...--++++eeeeee85

ARGUMENT ..--eeseveceecesreceeseesess

AN EXPLICIT CLASSIFICATION BASED

ON SEX AND THE CAPACITY TO HAVE

CHILDREN IS NOT GENDER NEUTRAL

AND CONSTITUTES DISPARATE

TREATMENT 2... ceeveeeeeeeeeres

A. The Distinct Types Of

Discriminatory Prac-

tices Proscribed in

§703 (a) we eee eeeeeeeeevees

B. An Employment Policy Which

Explicitly Classifies Appli-

cants and Employees Accord-

ing To Gender And Capacity

To Have Children Is Facially

Discriminatory Under §§703

(a) (1) and 7O1(K) .-+-eeee-

II.

Itl.

Page

STATUTORY LANGUAGE, THE STANDARD

OF EVIDENTIARY ANALYSIS DEVELOPED

BY THE COURT, AND ADMINISTRATIVE

INTERPRETATION DEMONSTRATE THAT

A CASE OF DISPARATE TREATMENT

CAN ONLY BE OVERCOME BY THE ESTAB-

LISHMENT OF A BONA FIDE OCCUPA-

TIONAL QUALIFICATION .......... 23

UNHEALTHY WORKPLACES DISPRO-

PORTIONATELY ADVERSELY EFFECT

AFRICAN AMERICAN WORKERS

BECAUSE THEY ARE OVERREPRE-

SENTED IN DIRTY INDUSTRIES

sa ee ee 2

A. The Overall Health Status

of African American Workers

Is Affected by Toxic Work

EE 31

- Lead Poses Hazards for

Workers and i vor Urban

ss ee 34

2. Occupational Fxposures

To Toxic Substances Can

Dn GOMOOOE «sec cecec

3. Textile Workers Suffer

From Brown Lung and

Respiratory Disease .. 42

i111

TABLE OF AUTHORITIES

B. The Health Status of

African American Women Cases: Page

Workers Is Adversely

Affected by The Hazard- Arizona Governing Committee

ous Work Conditions Found Vv. Berries, 463 U.S. 1073

in Predominantly Female § >) en ee ee ee el eee a

Cocupations ...cccsccccses 44

Colby v. J.C. Penney Co.,

S42 F.26 1ii9 (7th Cir. 2907) « «.s- < 46

IV. EXCLUDING ALL POTENTIALLY

PREGNANT WOMEN FROM CERTAIN Connecticut v. Teal,

BETTER-PAYING JOBS WILL PLACE S37 UcGe. 660° (iPS) « «© &© © 6 @ ee 9

AFRICAN AMERICAN FAMILIES

AT GREATER RISK OF POVERTY Dothard v. Rawlinson,

AND POOR HEALTH ........-2--eees 53 ee Se Oh oe ee er rr ee

A. Women's Earnings Support International Brotherhood of

Their FPOMLLIOS cccccessvses 53 Teamsters v. United States,

S233-Us8s Bas. C2977) 2 « ‘o ©. 2 S, a8, 223

B. Most Low-Wage Jobs Lack

Employer-Provided Health International Union, UAW v. Johnson

COVOFEGE «2 cccccceecesesses 58 Controls, Inc., 886 F.2d 871

ka So Pee) rrr. | a

COMET TIGEOR 60 60606060664 0:06 686 SOK Os 63 Johnson Controls, Inc. v. California

Fair Employment and Housing

Commission, 218 Cal.App.3d 517

+). | CP rr ai ! Oe ee

Los Angeles Department of Water %

Power v. Manhart, 435 U.S. 702

[auven «¢ «. & +) © & DBs SOc. 28s S90 88

McDonnell Douglas Corp. v. Green,

Cae Uses Cee Capra) «+ & 6 © «© ©. we Bay 32

Nasnville Gas Co. v. Satty,

S25 Game 220 £200 « «2 6 & ee ee ee Re

lv Vv

Newport News Shipbuilding and Dry

Dock Co. v. EEOC, 462 U.S. 669

(1983) . eee ear le Rare

Phillips v. Martin Marietta Corp.,

ES RS eee gt Se ere: ©

Price Waterhouse v. Hopkins,

490 U.S. _, 104 L.Ed.2d 268

CRO) 6 60) 6 ee re ee a

Trans World Airlines, Inc.

v. Thurston, 469 U.S. 111

PRE 6.6 6 ee ee ee be e's @ «0 3 ERs

United Steelworkers of America, etc.

v. Marshall, 647 F.2d 1189

(D.C. Cir. 1980), cert. denied,

453 U.S. 913 (1981)

Wambheim v. J.C. Penney Co.,

705 F.2d 1492 (9th Cir.

1983), cert. denied, 467

U.S. 1255 (1984)

Wards Cove Packing Co. v. Atonio,

490 U.S. _, 104 L. Ed.

733 (1989) ;

Weeks v. Southern Bell Telephone &

Telegraph Co., 408 F.2d 228

(Sth Cir. 1969)

Statutes:

§701(k) of Title VII, 42 U.S.C.

ee | a er, oa | i

§703(a) of Title VII, 42 U.S.C.

§2000e-2(a). a ae ee ee _

~19

§703(e) of Title VII, 42 U.S.C.

2000e-2 (e) el at a ie ey Sa ee

43 Fed. Reg. 52953 (1978).

H.R. Rep. 948, 95th Cong.,

2nd Sess. (1978).

Other Authorities:

J. Bertin, “Reproductive Hazards

in the Workplace" in Reproductive

Laws for 1990's: A Briefing

Handbook 207-232 (N. Traub and S.

Cohen, eds. 1989

Census, U.S. Dept. of

Commerce, Statistical

Abstract of the United

States 1989,

Children's Defense Fund, A

Vision for America's

Future (1989) cs *& & © « & 6 «eee

Children's Defense Fund,

Black and White Chileren

in America: Key Facts

[Seeks cae 4 here a Soke 3 ee

Cong., 1st Sess., U.S.

Chiidren and Their

Families: Current

tore Sie, cw & » 3% 2-4 oe

—

Davis, The Impact of

Workplace Health and

Safety on Black Workers:

Assessment and

Prognosis, 31 Lab.

Mees Cae « © &@ 6 & «6 abby S2y 88, Sa4

49,

B. Thornton Dill, L. Weber

Cannon, R. Vanneman, Pay

Equity: An Issue of

Race, Ethnicity and Sex

1 (National Committce on

Pay Equity 1987)

EEOC Policy Guidance on Reproductive

and Fetal Hazards Daily Lab. Rep.

(BNA) No. 193 at D-1 (October 5,

i } ataiaied SR aes eee) ee eta

EEOC Policy Guidance on United Auto

Workers v. Johnson Controls, Inc.

Daily Lab. Rep. (BNA) No. 18,

at D-l (January 26, 1990) .... 27,

H. Pipes McAdoo, Changes in

the Formation and

Structure of Black

Families: The Impact on

Black Women

(Wellesley College

Center for Research on

Women, Working Paper No.

Rees Bees se) 6) e * a a eee 8 eS ee

—

Mahaffey, et al., Nationa

Estimates of Blood Lead

Levels: United States,

1976-1980, 307 New

Eng.J. of Medicine

J. Maiveaux, Low Wage Black Women:

Occupational Descriptions,

Strategies for Change, unpublished

paper prepared for the NAACP Legal

Defense and Educational Fund, Inc.

ae a A:

Mullings, "Minority Women,

Work, and Health," in

Double Exposure: Women's Health

Hazards on the Job and At

Meme (19664). . « « © © « etl, 43, 45,

National Center for Health

Statistics, U.S. Dep't

of Health and Human

Services, Pub. No. (PHS)

89-1232, Health, United

States, 1988 (1989). ... . .32, 40,

M. Paul, C. Daniels, and R. Rosofsky,

Corporate Response to Reproductive

Hazards in the Workplace: Results

of the Family, Work and Health

Survey, 16 Am.J. of Indus. Medicine

267 (1989) POR CA yee ee) of

Pollack and Grozuczak, Reagan,

Toxics and Minorities, Urban

Environment Conference c/o

United Steelworkers or America

(1984) . . . . . . . 3s > SD 36,

Rosenberg, "The home is the Workplace"

in Double Exposure 229 (W. Chavkin,

ed. (1984)

Robert Severo, "The Genetic Barrier: Job

Benefit or Job Bias," e New York Women's Occupational Health

Times Feb. 3,4,5,6, 1980, reprinted Resource Center News

1980 by Womens Occupational Health No. 4 (September 1982)

Resources Center, Columbia

nnn + «& 6 & * & 6 Se te wre 6H

Staff of House Comm. on Ed.

and Labor, 101st Cong.,

2d Sess. Report on The

Vv and

Workplace Fetal

Protection Policies in

the 1980s (1990) b ee « « @ Be 2Fc 3

J. Mager Stellman, Women's

Work, Women's Health (1977) . .. 46, 47

U.S. Congres: , Reproductive

Health Hazards in the Workplace

(| Ti aera

U.S. Dept. of Health and Human

Services, Report of the Secretary's

Task Force on Black & Minority

Peete, Was & CEP « « «6 we ee 6 le 82

Chris ader, “Reproductive and

Ch: mosomal Effects of Occupational

Exposure to Lead in the Male,"

3 Reproductive Toxicology 221

| A eS ee

Women's Bureau, U.S. Dep't

of Labor, Bulletin 298,

Time of Change: 1983

Handbook on Women

Seem €2903) « «§ « «© «@ «© « o wl) | 680, 86

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1989

INTERNATIONAL UNION, UNITED AUTOMOBILE

AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, ET AL.,

Petitioners,

Vv.

JOHNSON CONTROLS, INC.,

Respondents.

On Writ of Certiorari To The United States

Court of Appeals for the Seventh Circuit

BRIEF FOR THE NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC., AND THE NATIONAL

BLACK WOMEN'S HEALTH PROJECT AS AMICI

CURIAE SUPPORTING PETITIONERS

INTEREST OF AMICI CURIAE

The NAACP LEGAL DEFENSE & EDUCATIONAL

FUND, INC. ("LDF") 1s a national non-profit

corporation formed to assist African

Americans in the vindication of their

constitutional and civil rights. For many

years LDF has pursued litigation to secure

the basic civil and economic rights of low-

income black families and individuals.

Intentional aad unintentional employment

practices which discriminate against

African Americans have been a primary LDF

concern. LDF has also worked on behalf of

African Americans struggling with the

burden of poor health and discriminatory

and inadequate health care services.

LDF is particularly concerned with the

growing rates of poverty among African

Americans and with the number of single

female-headed African American families

that are living in poverty. Through its

Poverty & Justice Program, LDF is

challenging the barriers to economic

advancement to help improve the economic

Status and living conditions of the many in

poverty. LDF's Black Women's Employment

Prograr strives to remove obstacles to

employmenc in occupations where African

American women are underrepresented and to

provide access to jobs with better wages,

decent cenditions, and pens.» >n and health

benefits. Currently, the majority of

working African American women are employed

in low-paying occupations.

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 maximize

maternal health, reduce infant mortality

and produce healthy babies. Because poor

African American women are particularly

vulnerable to economic coercion, the impact

of exclusionary policies may be

particularly severe for them.

Letters from the parties consenting to

the filing of this brief have been filed

with the Court.

SUMMARY OF THE ARGUMENT

Amici, supporting petitioners, address

two important issues: first, the

applicability of settled distinctions in

employment discrimination law to fetal

protection policies; and second, the impact

of such policies on African American

workers and their children.

First, it is well established that

Title VII of the Civil Rights Act of 1964

prohibits two discrete types of employment

discrimination: disparate treatment and

disparate impact. Employment policies that

are discriminatory on their face -- that

is, they distinguish individuals on the

basis of their gender -- can be upheld by

courts only under extraordinary

circumstances: an employer must establish

that sex is a BFOQ, a bona fide

occupational qualification reasonably

necessary to the normal operation of that

particular business or enterprise. As this

Court has recognized, the BFOQ was meant to

be an extremely narrow exception to the

general prohibition of discrimination on

the basis of sex. By contrast, cases of

disparate impact, involving facially

neutral policies or practices, can be

answered by a claim of business necessity.

Fetal protection policies which

exclude all fertile women from particular

jobs in order to prevent possible damage to

potential fetuses are facially discrimina-

tory. They classify job applicants and

employees by gender and treat individuals

differentially on the basis of that

classification. Such policies bar the

employment of all women of child-bearing

capacity, whether or not they are pregnant

or contemplating pregnancy, but do not

prohibit the employment of male workers

whose reproductive health may also be

damaged by workplace hazards.

The Seventh Circuit's application of

the business necessity defense to a

facially discriminatory fetal protection

policy was erroneous, as it blurred the

essential difference between disparate

treatment and disparate impact cases. This

case has the potential to disrupt settled

analytic standards and to dilute legal

protections against employment

discrimination. Employers with potentially

hazardous work environments should not be

allowed to deny employment opportunities to

a Class of workers who are believed to be

at greater risk in a hazardous environment

because of gender or genetic make-up, but,

instead, should be required to protect the

health and safety of all workers.

Second, African American workers are

overrepresented in industries and

occupations that pose significant health

and safety hazards. Reductions in health

and safety protections for workers, which

that may result if employers are allowed to

evade their responsibility to make

workplaces safe for all employees, will

disproportionately adversely effect African

Americans.

Moreover, exclusionary policies that

restrict employment opportunities for all

women will further limit access for low-

income women to better-paying jobs, as well

as their attendant health and _ pension

benefit programs. Most working poor,

female single-headed families, a dispro-

portionate number of whom are African

American, face poverty and lack health

coverage. No barriers to improving the

economic and health outlook of these

families should be permitted.

ARGUMENT

I. AN EXPLICIT CLASSIFICATION BASED ON

SEX AND THE CAPACITY TO HAVE CHILDREN

IS NOT GENDER NEUTRAL AND CONSTITUTES

DISPARATE TREATMENT

A. The Distinct Types of Discrimina-

Practices Proscribed in §703(a)

Title VII forbids two types. of

employment discrimination. The first,

disparate treatment, both overt or facial

and covert or pretextual, is prohibited by

§703(a)(1) of Title vil.’ "'Disparate

fne statutory proscription

against discriminatory treatment states:

It shall be an unlawful

employment practice for an

employer:

1. to fail or refuse to hire or

to discharge any individual, or

otherwise to discriminate against

any individual with respect to

his compensation, terms, condi-

tions, or privileges of employ-

ment, because of such individ-

ual's race, color, religion, sex

Or national origin;

’

treatment'...is the most easily understood

type of discrimination. The employer

simply treats some people less favorably

than others because of their race, color,

religion, sex, or national origin.'"

International Brotherhood of Teamsters Vv.

United States, 431 U.S. 324, 335 n.15

(1977).

"A disparate impact claim," on the

other hand, "reflects the language oft

§703(a)(2)."* Connecticut: v. Teal, 457 U.S.

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

2(a).

. The statutory proscription

against discriminatory impact states:

It shall be an unlawful

employment practice for an

employer:

Re to limit, segregate, or

classify his employees or

applicants for employment in any

way which would deprive or tend

to deprive any individual of

employment opportunities or

440, 448 (1982). Claims of disparate

impact “involve employment practices that

are facially neutral in their treatment of

different groups but that in fact fall more

harshly on one group than another and

cannot be justified by business necessity."

Teamsters, 431 U.S. at 335 n. 15.

Although the §703 framework evinces

no intent to restrict plaintiffs to one of

. : ° am.

the two provisions as an exclusive remedy,

otherwise adversely affect his

status as an employee, because of

such individual's race, color,

religion, sex, or national

origin.

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

2(a).

3 Several lower courts have held

that plaintiffs may also bring disparate

impact challenges under §703(a)(1). See,

e.g., Colby v. J.C. Penney Co., 811 F.2d

1119, 1127 (7th Cir. 1987); Wambheim v.

J.C. Penney Co., 705 F.2d 1492, 1494 (9th

Cir. 1983), cert. denied, 467 U.S. 1255

(1984); cf. Nashville Gas Co. v. Satty, 434

U.S. 136, 144 (1977)(The Court "need not

decide whether ...it is necessary to prove

the statutory language clearly encompasses

two distinct forms of discrimination:

disparate treatment and disparate impact.

The Court has applied §703(a)(1) ina

variety of circumstances involving

disparate treatment. See, e.g., Los

Angeles Department of Water & Power v.

Manhart, 435 U.S. 702 (1978) (direct

evidence of a policy of disparate

treatment); McDonnell Douglas Corp. Vv.

Green, 411 U.S. 792 (1973) (individual

disparate treatment) ; International

Brotherhood of Teamsters v. United States,

431 U.S. 324 (1977) (pattern or practice of

disparate treatment). Tne standard for

evidentiary analysis applied in these cases

depends upon the existence of direct

evidence of discriminatory treatment.

Where direct evidence i1is_ absent, the

intent to establish a prima tacie violation

of §703(a)(1).").

plaintiff must establish a prima facie case

through circumstantial evidence. See

McDonnell Douglas, 411 U.S. at 802. "The

shifting burdens of proof set forth in

McDonnell” Douglas are designed to assure

that the 'plaintiff {has} his day in court

despite the unavailability of direct

evidence.'" Trans World Airlines, Inc. v.

Thurston, 469 U.S. 111, 121 (1985) (quoting

Loeb v. Textron, Inc., 600 F.2d 1003, 1014

faa8 Cae... 2973} i. By contrast, "the

McDonnell Douglas test is’ inapplicable

where the plaintiff presents direct

evidence of discrimination." Thurston, 469

U.S. at i2i.

An employment policy or practice is

established as facially discriminatory,

without further need to show a

discriminatory intent, where plaintiff's

direct evidence of discrimination is

accepted. Arizona Governing Committee v.

Norris, 463 U.S. 1073, 1084 (1983)

(retirement plan paying lower benefits to

women than to men is facially discrimi-

natory); Manhart, 435 U.S. at 708 (policy

requiring female employees to make larger

contributions to pension fund than male

employees is facially discriminatory) ;

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

542 (1971) (per curiam) (policy of hiring

men but not women with pre-school age

children is facially discriminatory) ;

Thurston, 469 U.S. at 121 (policy

conditioning transfer rights on age of

airline captains is facially

discriminatory).

B. An Employment Policy Which

Explicitly Classifies Applicants

and Employees According To Gender

And Capacity To Have Children Is

Facially Discriminatory Under

§§703(a) (1) and 701(k)

"Section 703(a) of the Civil Rights

Act of 1964 requires that persons of like

qualifications be given employment

opportunities irrespective of their sex."

Phillips, 400 U.S. at 544. "It precludes

treatment of individuals as simply

components of a racial, religious, sexual,

or national class." Manhart, 435 U.S. at

708.

Demonstration that an employer openly

differentiates between male and female

applicants or employees is direct evidence

of discrimination. As such, an employment

policy which is written with an explicit

reference to gender and applies tc all

individuals of one sex and not the other

has always been held to be _ facially

discriminatory. See Norris, 463 U.S. at

1084 (benefit levels based on gender);

Manhart, 435 U.S. at 708 (contribution

requirement based on gender); Phillips, 400

U.S. at 544 (separate hiring policies for

women having pre-school children and for

men similarly situated). As this Court has

stated, "Practices that classify employees

in terms of religion, race, or sex tend to

preserve traditional assumptions about

groups rather than thoughtful scrutiny of

individuals." Manhart, 435 U.S. at 709.

"Fetal protection policies," such as

the hiring policy at issue in the present

case, explicitly classify applicants and

employees by gender. These policies

require that female applicants -- but not

males -- offer proof. of sterility.

Employers thus explicitly categorize

prospective anc current employees by sex

despite abundant evidence that’ toxic

exposure in the workplace poses a health

hazard to the potential offspring of both

male and female workers.” ee 43 Fed.Reg.

ss In addition, employers justify

the employment policy in ae facially

discriminatory way: the stated intention

of the policy is to protect not only

male and female workers.” See 43 Fed.Reg.

52953, 52966 (1978) (Occupational Safety

and Health Administration, OSHA, finding

that "male workers may be adversely

effected [sic] by lead as well as women.

Male workers may be rendered infertile or

impotent, and both men and women are

subject to genetic damage which may affect

both the course and outcome of

pregnancy."); United Steelworkers of

America, etc. v. Marshall, 647 F.2d 1189,

1257 (D.C. Cir. 1980), cert. denied, 453

U.S. 913 (1981) (OSHA fodend "abundant

support" for view that lead exposure

presents health risks to offspring of male

. In addition, employers justify

the employment policy in a= facially

discriminatory way: the stated intention

of the policy is to protect not only

potential offspring but also "their

mothers." The risk of harm to potential

fathers is not granted Similar

consideration. International Union, UAW v.

Johnson Controls, Inc., 886 F.2d 871, at

884 n.25 (7th Cir. 1989).

and female workers and, thus, the standard

for lead exposure must protect reproductive

capacities of both sexes). See also Staff

of House Comm. on Ed. and Labor, Olst

Cong., 2d Sess., Report on The EEOC, Ti le

VII and Workplace Fetal Protection Policies

in the 1980s, at 7-9 (Comm. Print 1990);

Chris Winder, "Reproductive and Chromosomal

Effects of Occupational Exposure to Lead in

the Male," 3 Reproductive Toxicology 221

(1989).

Employment policies that differentiate

between males and females for the purpose

of evaluating the risk of damage to

potential offspring are based on

unwarranted assumptions end stereotypes

about class characteristics: such gender-

based classifications are simultaneously

underinclusSive, since lead exposure

increases reproductive risks for both male

and female workers, and overbroad, by

encompassing all female employees, even

though most women in an industrial labor

force do not become pregnant. Johnson

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

dissenting). These explicit gender-based

policies are indeed founded upon discrimi-

natory assumptions about the relevance of

physical differences. They improperly

impute to every individual female

generalizations about risks to fetal health

posed by the class of females as a whole.

"Even 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.

In 1978, Congress amended the Civil

Rights Act of 1964 to clarify its intent

that gender distinctions based on

"pregnancy, childbirth, or related medical

conditions" are also prohibited by Title

Vil.

§ 701(k) of Title VII provides, in

part:

The terms "because of sex" or "on

the basis of sex" include, but

are not limited to, 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-related purposes

as other persons not so affected

but similar in their ability or

inability to work....

42 0.8.C. §2000e(k) (emphasis added).

Congress thus esta-blished that

differential treatment of pregnancy is

gender-based discrimination. Newport News

Shipbuilding and Dry Dock Co. v. EEOC, 462

U.S. 669 (1983). The legislative history

of this amendment to Title VII makes clear

that distinctions based on the child-

bearing capacity of women constitute sex

discrimination. H.R. Rep. 948, 95th Cong.,

2nd Sess. at 2, 5, 6, reprinted i 1978

U.S. Code Cong. & Admin. News 4749, 475C,

4753, 4754. Thus, explicit classifications

based on the capacity to become pregnant,

even though they are based on real physical

differences between men and women, are

proscribed by Title VII.

Despite the fact that Johnson

Controls’ fetal protection policy is

facially discriminatory, the Seventh

Circuit failed to apply the analytic

framework appropriate for cases of

disparate treatment. The court's

"flexible" approach to claims of overt

discrimination, see Johnson Controls, 886

”

F.2d at 883, threatens to dilute protection

against the most egregious forms of

employment discrimination, including

explicit classifications on the basis of

5 ,

race. At least one major company has

Significantly, facial discrimi-

nation on the basis of race is simply

impermissible: the BFOQ exception to the

prohibition of such discrimination is not

Bia...

adopted a workplace screening and hiring

policy that classified applicants 9 and

employees on the basis of race. The

rationale is analogous to that used for

fetal protection policies. because of

group differences, specifically a greater

incidence of sickle cell trait, particular

workplace hazards pose heightened risks to

the health of African Americans. Although

it is generally accepted that the trait for

sickle-cell anemia is harmless, the Du Pont

Company adopted a policy designed to reduce

health risks by screening all group members

for the sickle cell trait and, then, b»

available to defend racial classifications.

See §703(e) of Title VII, 42 U.S.C. 2000e-

2(e) (defense limited to "those certain

instances where religion, sex, or national

origin is a bona fide occupational quali-

FICATION. «sa™). Application of the

business necessity defense to claims of

facial and intentional discrimination would

turn the clock back on employment discrimi-

nation law by allowing a defense for ex-

plicit racial classifications.

excluding all individuals with the trait

from jobs involving exposure to hazardous

substances. See R. Severo, "The Genetic

Barrier: Job Benefit or Job Bias," The New

York Times Feb. 3, 4, 5, 6, 1980, reprinted

1980 by Womens Occupational Health

Resources Center, Columbia Univ. This

Court should not countenance a decision

which disregards the basic distinction

between disparate treatment and disparate

impact cases that has guided twenty-five

years of Title VII jurisprudence and

provided protection against employment

policies that would classify individuals on

the basis of group membership.

II. STATUTORY LANGUAGE, THE STANDARD OF

EVIDENTIARY ANALYSIS DEVELOPED BY THE

COURT, AND ADMINISTRATIVE INTERPRE-

TATION DEMONSTRATE THAT A CASE OF DIS-

PARATE TREATMENT CAN ONLY BE OVERCOME

BY THE ESTABLISHMENT OF A BONA FIDE

OCCUPATIONAL QUALIFICATION

Title VII prohibits discrimination on

the basis of gender unless sex is a "bona

fide occupational qualification reasonably

necessary to the normal operation of that

particular business or enterprise."

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

2(e). The Bona Fide Occupational

Qualification (BFOQ) "was in fact meant to

be an extremely narrow exception to the

general prohibition of discrimination on

the basis of sex." Dothard v. Rawlinson,

433 U.S. 321, 334 (1977).

When an employer asserts that gender

is a bona fide occupational qualification,

the employer has the burden of persuasion.

Price Waterhouse Vv. Hopkins, 490 U.S. ,

{j'

104 L.Ed.2d 268, 287 (1989). The employer

must demonstrate, first, that the

occupational qualification is "reasonably

necessary to the normal operation of [the]

particular business. Second, "(tjhe

principle of nondiscrimination" requires

that the employer show that "all or

substantially all sient would be unable to

perform safely and efficiently the duties

of the job involved." Weeks v. Soutrern

Bell Telephone & Telegraph Co., 408 F.2d

228, 235 (5tn Cir. 1969).

The Pregnancy Discrimination Act

explicitly defined the standjard to be

applied in cases of gender discrimination

involving the capacity of women to bear

children: a showing of disparate treatment

can be overcome only by a showing that

female employees differ from cthers "in

their ability oor inability to work."

§701(k) of Title VII, 42 U.S.C. 2000e(k).

By contrast, business necessity can be

asserted to justify facially neutral

practices that have an adverse impact on

members of a protected class. This Court

recently stated the relevant query: "{in}

a disparate impact case, the dispositive

issue is whether a challenged practice

serves, in a significant way, the

legitimate employment goals of the

employer." Wards Cove Packing Co. Vv.

Atonio, 490 U.S. _, 104 L.Ed. 733, 752

(1989).

Business necessity has never been a

defense to overt discrimination. The

Seventh Circuit's adastion of the business

necessity defense in this case was an

attempt to circumvent the requirements of

the BFOQ defense. The California Court of

Appeal which also considered Johnson

Controls' fetal protection policy expressly

disagreed with and declined to follow the

reasoning of the Seventh Circuit. The

state court properly found the employment

policy facially discriminatory and

concluded that only the BFOQ defense

applied. "The fact that it may be

difficult for the employer to meet the BFOQ

standard in a [fetal protection policy]

Situation is a concern of the legislature."

Johnson Controls, Inc. v. Califorwia Fair

Employment and Housing Commission, 218

Cal.App.3d 517 (1990) at 37. To adopt the

business necessity defense in this context

is to "champion an analysis which holds

that overt, facial discrimination creates

only a presumption of discrimination." Id.

at 39.

Administrative interpretation of Title

VII also supports the position that only

the demonstration of a BFOQ can overcome a

case of disparate treatment. An Equal

Employment Opportunity Commission internal

policy guidance issued after the Seventh

Circuit's Johnson Controls decision stated

that fetal protection policies which

exclude only women constitute per se

violations of Title VII. "For the

Although the EEOC's statements

regarding the proper analytic framework for

review of fetal protection policies have

not been consistent, see Staff of House

Comm. on Ed. and Labor, 10ist Cong., 2d

Sess., Report on The EEOC, Title VII and

Workplace Fetal Protection Folicies in the

1980s (Comm. Print 1990), it is significant

that on January 24, 1990, the Commission

released a guidance in which it took issue

with the Seventh Circuit's Johnson Controls

decision and expressly instructed EEOC

staff to disregard the court's opinion.

EEOC Policy Guidance on United Auto Workers

v. Johnson Controls, Inc. Daily Lab. Rep.

(BNA) No. 18, at D-1 (January 26, 1990).

This recent statement takes a clear

position. In contrast, the Commission's

earlier guidance, quoted at length by the

Seventh Circuit, was merely interpretive.

The 1988 guidance was limited to the

elaboration of the framework suggested by

existing judicial interpretations. See

EEOC Policy Guidance on Reproductive and

Fetal Hazards Daily Lab. Rep. (BNA) No. 193

at D-1 (October 5, 1988); see also Staff

of House Comm. on Ed. and Labor, 101st

Cong., 2d Sess., Report on The EEOC, Title

VII and Workplace Fetal Protection Policies

in the 1980s (Comm. Print 1990), at 22-23.

plaintiff to bear the burden of proof in a

case in which there is direct evidence of

a facially discriminatory policy is wholly

inconsistent with settled Title VII law."

EEOC Policy Guidance on Auto Workers v.

Johnson Controls, Inc. Daily Lab. Rep.

(BNA) No. 18, at D-1 (January 26, 1990).

The Commission found the application of the

more narrow BFOQ defense "consistent with

Title VII's structure and purpose." Id.

Employers Simply should not be

permitted to implement policies’ that

infringe on the right to fair employment.

The relaxation of standards allowed by the

Seventh Circuit is a dangerous precedent -

with consequences that extend well beyond

the context of fetal protection policies.

Employment discrimination law prohibits,

and should continue to prohibit, the

wholesale exclusion of a class of people

from the workplace. Categorical exclusion

cannot be justified by the belief that some

individuals within the class may _ be

particularly susceptible to the harmful

effects of toxic substances. Title VII

does not allow employers to institute

policies that sacrifice women's employment

opportunities instead of cleaning dirty

workplaces.

III. UNHEALTHY WORKPLACES DISPROPORTION-

ATELY ADVERSELY AFFECT AFRICAN

AMERICAN WORKERS BECAUSE THEY ARE

OVERREPRESENTED IN DIRTY INDUSTRIES

AND JOBS

Unhealthy work environments will

disproportionately adversely affect the

health status of African American workers.

Historic job discrimination and poor

training and education have combined to

concentrate African American workers, both

men and women, in unhealthy industries and

in the most hazardous jobs. Policies which

ellow employers to exclude women, rather

than require a clean and safe _ work

environment for all workers, will have

particularly devastating effects on African

Americans.

In general, African Americans are

overrepresented in laundry and dary

cleaning, tobacco manufacture, fabric

mills, smelters, hospitals and service

industries. Within these industries,

African Americans also tend to be

concentrated in the dirtiest jobs, such as

coke ovens, which are usually tended by

African American steelworkers, and opening,

picking and sorting operations in textile

mills.’

Furthermore, migrant farm workers,

estimated to be 75 percent Chicano and 20

percent African American, have among the

F Pollack and Grozuczak, Reagan,

Toxics and Minorities, Urban Environment

Conference c/o United Steelworkers of

America 2 (1984) (hereinafter cited as

Reagan, Toxics)

most dangerous and least protected jobs of

. Their exposure to

all workers.

pesticides, heat, mechanical hazards, noise

and dust, combine with poverty and poor

medical care to lower the life expectancy

of a farmworker to 49 years, more than 20

years less than the national average.”

A. The Overall Health Status of

African American Workers Is

Atfected by Toxic work

Environments

When compared with whites, the health

indices of African Americans are alarmingly

° In a 1969 study of Florida

agricultural workers exposed to pesticides,

it was found that African Americans were

assigned mostly to mixing, formulating, and

spraying of organophosphate-type

pesticides, considered to be the most

hazardous operations. In the study,

African Americans working in formulating

had the highest rates of pesticide-induced

liver and renal (kidney) dysfunction.

Davis, The Impact of Workplace Health and

Safety on Black Workers: Assessment and

Prognosis, 31 Lab. L.J. 723, 729 and n. 31

(1980) (hereinafter cited as Impact).

° Reagan, Toxics at 41.

° Work force environment cannot be

poor.’

ignored as a source of the disparity, as

many studies have shown.

In an article focusing on the impact

of workplace health and safety on African

American workers, the author concludes

that:

{[Ijllness, disease, and death has

continued to take its toll among

black workers, due to unchecked

hazardous working conditions and

exposure to toxic substances....

™ There has been a_ longstanding

disparity in the health status of African

Americans when compared to whites. Life

expectancy at pirth for white males in 1982

was 71.5 years; for African American males,

it was 64.9 years. U.S. Dept. of Health

and Human Services, Report _of the

Secretary's Task Force on Black & Minority

Health, Vol I., at 64 (1985. In 1986, the

death rate from all causes, per 100,000

population was: for all races 541.7; for

white men 679.8; for African American men

1,028.9; for white women 387.7; for African

American women 588.2. National Center for

Health Statistics, U.S. Dep't of Health and

Human Services, Pub. No. (PHS) 89-1232,

Health, United States, 1988, at 62-63

(1989) (hereinafter cited as Health, United

States)

Fifteen percent of the black

work force (one to one and one-

half million) are unable to work

due to permanent or partial job-

related disabilities. Black

workers have a 37 percent greater

chance than whites of suffering

an occupational injury or

illness. Black workers are one

and one-half times more likely

than whites to be severely

disabled from job injuries and

illness and face a 20 percent

greater chance than whites of

dying from job-related injuries ~

and illnesses.

Even with these known statistics and

public recognition of the poor health

indices of African Americans, there is no

concerted effort to identify and remove

hazardous conditions in the workplace.

Fetal protection policies further remove

from public debate the important question

of the responsibility of federal and state

governments for ensuring worker safety and

for requiring employers to provide healthy

omitted).

Impact at 724 (footnotes

work environments for all workers. The

impact of unnealthy environments,

particularly with lead, is felt by men,

women and children, and its devastating

effects are felt disproportionately by

African Americans.

1. Lead poses hazards for

workers and poor urban

cnildren

Lead exposure poses serious health

hazards for workers, as well as for poor,

urban children. Found in paint, gasoline,

food and food containers, lead causes

disabling illness and brain damage, which

can lead to lowered intelligence, erratic

behavior and poor classroom performance in

children. A study of blood lead levels

found that the mean levels of blood lead

were higher in African Americans’ than

whites across all ages. It also found that

within the central cities, the mean blood

lead levels in African American children

were significantly higher than in white

children. Eleven percent of all inner-

city children, 12% of Afrgan American

children and over 18% of opocor African

American children possess Cangerous blood

lead levels.”

Effective regulation, particularly of

leaded gasoline and leaded paint -- the two

sources most commonly responsible _ for

childhood lead poisoning -- can reduce lead

exposure dramatically. Programs to

identify and provide medical help to

affected children can check and even

reverse the symptoms of lead poisoning.

During the 1970s several federally-funded

programs addressed the problem of exposure

to lead. Blood levels fell nationally

™ Mahaffey, et bl., National

Estimates of Blood Lead Levels: United

States, 1976-1980, 307 New’ Eng.J. of

Medicine 573, 575-76 (1982).

Reagan, Toxics at 6 & n. 5.

during the 1970s, although greater

improvement was seen for whites than for

“African Americans.’ Such progress came to

a halt in the 1980s.

Lead poisoning is a problem not only

for urban children but also for adult

African American workers. Many African

American workers are employed in battery

plants and lead smelters. For example, a

sample of eight battery plants and lead

smelters found that 52 percent of all blue

collar jobs were held by non-whites. In

one particular plant, all 42 of the workers

- most of whom were African American - had

lead poisoning.” Overall, approximately

835,000 workers in 120 occupations are

exposed to lead on the job."

” Reagan, Toxics at 7.

3 Reagan, Toxics at 1l.

” Reagan, Toxics at lil.

Additional risks from exposure to lead

and other dangerous substances are found in

the homes of lead workers. Studies of

fam’ lies of lead, asbestos and beryllium

workers have found that contamination of

the home environment through such means as

soiled work clothes may be associated with

elevated disease levels in the families of

the workers.’ Regulation of workplace

environments can reduce these unnecessary

risks.

x Occupational exposures’ to

toxic substances can cause

cancer

Fetal protection policies typically

have been adopte’ in male-dominated, blue

collar industries, without regard to the

od Mullings, "Minority Women, Work,

and Health," in Double Exposure: Women's

Health Hazards on the Job and At Home 121,

i130 and n. 63 (W. Chavkin, ed. 1984)

(hereinafter cited as "Minority Women").

health of exposed male workers. '®

Many

employers have instituted policies which

exclude women from jobs which require

exposure to hazardous substances,

conditions, or physical agents, allegedly

out of concern for fetal health.’® In fact,

some fetal protection policies exclude only

fertile women from workplace hazards

despite evidence that the hazard in

question poses other non-reproductive

heaith risks. Many workplace hazards which

may pose fetal health risks also pose other

™ See, M. Paul, C. Daniels, and R.

Rosofsky, Corporate Response to Reproduc-

tive Hazards in the Workplace: Results of

the Family, Work and Health Survey, 16

Am.J. of Indus. Medicine 267, 273 (1989)

(restrictive practices more common among

firms with male-intensive or _ evenly-

proportioned production work forces than

among those employing predominantly

females).

5 See, J. Bertin, "Reproductive

Hazards in the Workplace" in Reproductive

Laws for the 1990s: A_ Briefing Handbook

207-232 (N. Taub and S. Cohen, eds. 1989).

serious health risks to maie and female

workers.

For example, occupational cancer may

account for a significant portion of the

increase in cancer rates among African

Americans. The death rate among African

Americans from lung cancer is about 20

times what it was 40 years ago. African

Americans have worked with asbestos,

benzene, coke oven emissions, arsenic,

vinyl chloride and trichloroethylene,

together with the 1200 chemicals identified

by the National Institute for Occupational

Safety and Health which induced tumors in

animals. These exposures began to occur

during the early 1900s large numbers of

0 Staff of House Comm. on Ed. and

Laror, 101st Cong., 2d Sess., Report on The

Ecoc, Title VII and Workplace Fetal

Protection Policies in the 1980s, at 8, &

n. 19 (Comm. Print 1990), ("toxic agents

that affect reproductive health are likely

to have other health effects as well.")

African Americans migrated from the South

to urban industrial areas and entered the

most strenuous and tf zardous jobs in steel

and automotive manufacturing.

A study of over 6,500 rubber workers

in Ohio found that African American workers

were concentrated in the more dangerous

compounding and mixing areas. Twenty-

seven percent of the African American

workers in the study population, but only

three percent of the white workers, had

worked in this area of the plant.‘'

A study of coke plant steelworkers

revealed that 89 percent of nonwhite coke

plant workers were employed at the coke

ovens while only 32 percent of white

Impact at 726-28 & n. 19. The

five-year cancer survival rate for cancer

of the prostate gland is 73.4% for white

males and 62.8% for African American males.

Health, United States at 92.

workers were employed in that capacity.” A

cancer study of 59,000 steelworkers,

comprising 62 percent of all U.S. males

working in basic steel production, found

twice the expected death rate from

malignant neoplasms among nonwhite workers

employed in the coke plant.* The study

also found that the excess deaths for

nonwhite coke plant workers was caused by

cancer of the respiratory system. Twenty-

five deaths from this cause were observed

e Impact at 728 & n. 24.

- "One main area of hazardous

exposures within the steel industry is the

coke oven operation. The main function of

this process is to produce metallurgical

coke for use at the blast’ furnaces.

Another function of this process is to

recover chemical byproducts during the

transformation of bituminous coal _ into

coke. This process releases dangerous

gases and dust particles, including the

carcinogen Benzo (a) Pyrene." Impact, at

Vade In 1986, the death rate from

malignant neoplasms among white males was

158.8 deaths per 100,000, while among

African American males it was 229.0.

Health, United States at 62.

among nonwhite steelworkers employed at

least five years in the coke plant, whereas

only 7.3 of these cancer deaths would have

been expected. Notably, the number of

deaths for whites employed in this area was

seven, with 8.4 having been expected.“

3. Textile workers suffer from

Brown Lung and respiratory

diseases

Studies of textile industry workers

have shown disproportionate rates. of

respiratory disease, from byssinosis (Brown

Lung), chronic bronchitis, and hreath

less-

ness among African Americans in high dust

areas such as opening, picking, and carding

operations.”

More than a half million

workers are employed in the cotton

agriculture and yarn and fabric manufacture

industries. Thirty thousand active and

Impact at 728 & n. 23.

ie Impact at 729 & n. 30.

retired workers already suffer from Brown

Lung, which is caused by exposure to cotton

dust in inadequately ventilated work

environments; 800 workers are completely

disabled from the disease annually.

Cotton dust exposure is a health

problem for Af:xican American workers: an

average of 25 percent of textile workers,

and as many as 60 percent in some areas,

e6 In 1980, 57

are African Americans.

percent of the 240,000 textile workers were

women, while 20.7 percent of all operatives

and 13.8 percent of all sewers and

stitchers were African American women.”

Reagan Toxics at 33 & Nn.

"Minority Women" at 129 & nn. 49

50.

B. The Health Status of African

American Women Workers Is

Adversely Affected by The

Hazardous Work Conditions Found

in Predominantly Female

Occupations

Although 17 percent of all service

occupations were filled by African

Americans in 1987, African Americans,

particularly women, filled an overwhelming

number of the occupations that utilized

toxic substances in the workplace. African

Americans comprised over 34 percent of all

cleaners and servants; 31 percent of all

nursing aides, orderlies and attendants; 30

percent of maids and housemen; and 23

percent of all private household workers.

While African American women

represented 5.4 percent of the total labor

force in 1981, they constituted 24 percent

of all nursing aides, 19 percent of all

= Bureau of the Census, U.S. Dept.

of Commerce, Statistical Abstract of the

United States 1989, at 389.

practical nurses, 16 percent of all health

aides and 16 percent of all other health

service workers. Studies have shown that

hospital workers have a generally high

level of occupational diseases.*°

A study of mortality among non-

professional New York City hospital service

workers, most of whom were African American

women, suggests that nonprofessional

workers may be at elevated risk for certain

types of cancer. The study found

particularly high rates of liver cancer

among African American men and breast

cancer among African American women. While

unable to ascribe specific cancers to

specific chemica!s, the researchers noted

” J. Malveaux, Low Wage Black

Women: Occupational Descriptions,

Strategies for Change, unpublished paper

prepared for the NAACP Legal Defense and

Educational Fund, Inc. 93 (1984) (herein-

after cited as Low Wage Black Women).

” "Minority Women" at 127 & n. 36.

that hospital workers are constantly

exposed to ionizing radiation, anesthetic

gases, benzene, ethylere oxide, formalde-

hyde, and alkylating agents - substances

that have been linked to cancer. The study

also questioned whether an excess of liver

cancer among health service workers is

associated with exposure to Hepatitis B

virus, aS a consequence of job-related

activities such as cleaning, handling of

patients' laundry, and other contact.”

Skin irritation and disease are

widespread among hospital workers, service

= Skin

workers, and industrial workers.

disease is the leading industrial disease

in the United States today.” Industrial

"Minority Women" at 127 and n.38.

= J. Mager Stellman, Women's Work,

Women's Health 82 (1977) (hereinafter cited

as Women's Work).

33 Women's Work at 121.

chemicals and cleaning solvents used by

service workers can dissolve the wax in the

skin, resulting in different degrees of

skin irritations, or dermatitis. A

comparatively large number of industrial

chemicals can lead to the formation of skin

growths, which may be either cancerous or

- One survey of patients with

benign.

occupational dermatitis found that hospital

work and cleaning accounted for 55 percent

of all cases.™

Domestic workers use home-cleaning

products daily, yet there is almost no

product safety information available about

them. In fact, the average household has

as many as 250 chemicals’ which, if

ingested, could send a child to the

” Women's Work at 122-124.

3 Women's Work at 124.

hospital.** Insecticides also pose a health

hazard to domestic workers.°’

A 1981 U.S.

National Research Council report suggests

that better ways must be devised to reduce

exposure to indoor contaminants. This is

especially crucial for domestic workers who

face long-tern, low-level exposure to

potential cancer-causing substances, or to

contaminants that may cause respiratory

infection and cardiovascular disease.™®

Most low-wage African American women

are found in service and operative jobs

that put them at particular risk. In 1981,

one in seven African American women worked

as an operative. African American women

” Rosenberg, "The Home is the

Workplace" in Double Exposure 229 (WW.

Chavkin, ed. 1984) (hereinafter cited as

"The Home is the Workplace").

- "The Home is the Workplace" at

234-35.

"The Home is the Workplace" at

represented 31 percent of all clothing

ironers and pressers and 20 percent of

” Once

laundry and dry cleaning operators.

again, African American workers tend to be

concentrated in the dirtiest jobs within an

industry. A study of laundry-= and

drycleaning workers found that African

American male and female death rates, from

all causes, doubled those of white workers.

In addition, the study showed that African

Americans had higher death rates from

cancer of the liver, lung, cervix, uterus

and skin.”

Thirty percent of Atrican American

women workers are clerical workers.”

Increasingly, young African American women

are avoiding private household and service

Low Wage Black Women at °5.

“ The Impact at 728 & n. 26.

a Low Wage Black Women at 77.

jobs - areas that have employed large

numbers of older African American women -

and moving into clerical jobs.“

The hazards of clerical work include

muscular and circulatory disorders,

fatigue, and exposure to dangerous

chemicals such as benzene, toluene, and

other organic solvents.”

Clerical workers also appear to be

vulnerable to stress-related diseases. A

study which found increased risk of

coronary heart disease among clerical

workers, examined the relationship of

employment status and employment-related

behaviors. The results of the study appear

to show that an increased risk of coronary

heart disease is related to features of the

“ Women's Bureau, U.S. Dep't of

Labor, Bulletin 298, Time of Change: 1983

Handbook on Women Workers 63 (1983) (here-

inafter cited as Time of Change).

” "Minority Women" at 128.

work environment, including lack of control

and autonomy, nonsupportive relationships

and limited physical mobility.” African

Americans tend to be overrepresented among

the lowest level of clerical workers --

file clerks, clerical assistants, typists,

and telephone clerks” -- jobs that are

often subject to speed-up, isolation and

lack of job mobility.”

In sum, any policies which permit

employers to avoid their duty to provide

safe and clean working environments for all

workers will have doubly devastating

effects on African American workers wh» are

disproportionately represented in the

dirtiest jobs and the mest hazardous

industries. Health indices of African

"Minority Women" at 128.

Low Wage Black Women at 96.

"Minority Women" at 128.

Americans will continue to lag behind white

Americans if employers are allowed to evade

their responsibility for the toxic work

environments that help to cause poor health

outcomes.

It is unconscionable for OSHA and the

medical research community and employers to

focus on genetics and the behavioral and

social characteristics of African Americans

which may contribute to poor health status

without also focusing on occupational

exposures to toxic substances. Regulatory

agencies have abdicated their responsibi-

lity for protecting the lives and health of

Americans, especially African American

. Without more

workers and. families.”

balanced analysis, no Significant

improvement in the health indices of

African Americans should be expected.

- See, Impact at 730; Reagan,

Toxics at 57 and Preface.

IV. EXCLUDING ALL POTENTIALLY PREGNANT

WOMEN FROM CERTAIN BETTER-PAYING JOBS

WILL PLACE AFRICAN AMERICAN FAMILIES

AT GREATER RISK OF POVERTY AND POOR

HEALTH

As Judge Easterbrook cogently notes in

his dissent in Johnson Controls, “rigorous

implementation of fetal protection policies

could close more than 20 million jobs to

women...." UAW v. Johnson Controls, 886

F.2d 871, 914 and n.7 (7th Cir. 1989).

African American women, who are already

overrepresented in lower-paying industries

and occupations, cannot afford to _ be

excluded from participating in any

occupation with growth potential and higher

pay.

A. Women's Earnings Support

Families

The wages of African American womer

contribute significant t +

1985 was $24,570 for a married couple

family. Median family income depended on

whether the woman in th« marriage worked:

530,502, if she was in the labor force and

$15,129 if she was not. Ii. contrast,

whites had a median income of $36,992 if

the wife worked, and $25,307 if the wife

did not work.”

Among white, African American and

Hispanic children, African American

children were the most likely to have a

mother who worked full time throughout the

year, while white children were the most

likely to have a mother who was employed

less than full time, full year.” Seventy-

. H. Pipes McAdoo, Changes _in the

Formation and Structure of Black Families:

The Impact on Black Women 15 (Wellesley

College Center for Research on Women,

Working Paper No. 182, 1988) (hereinafter

cited as Pipes McAdoo, Changes)

Kd Select Comm. on Children, Youth

and Families, U.S. House of Represerita-

tives, 100th Cong., lst Sess., ie #

five percent of African American mothers

with children under age 1 were in the

labor force, compared to only 60 percent of

white mothers with children under 18.

Among women maintaining families alone, 62

percent of African American mothers with

children under 18 were in the labor force,

compared to 73 percent of white single

mothers.”

The poverty rate for African Americans

is abysmally high: 12.2 percent for married

families; 22.9 percent for male house-

holders; and a phenomenal 50.5 percent for

female householders with no male present.”

Most African American single mothers are in

the work force but are unable to earn

Children and Their Families: Current

Conditions and Recent Trends, 1987, at 13

(1987) (hereinafter cited as is

Children).

is U.S. Children at 20.

H. Pipes McAdoo, Changes at 15.

sufficient wages to raise their family

income level above poverty. In 1984, of

3,740,000 African American female-headed

families, 57 percent had mothers in the

labor force; 49% of these working mothers

earned below $20,000; 21 percent earned

below $7,000.”

Women who have principal responsi-~

bility for maintaining their own families

are generally poor. They are more likely

than other families to have only one

earner, and to have preschool children who

restrict labor force activity.” Whether

™ Comparable figures for’ white

female-headed families: 68 percent had

mothers in the labor force; 52 percent

earned below $20,000 and 16 percent earned

below $7,000. Children's Defense _ Fund,

Black and White Children in America: Key

Facts 122 (1985) (hereinafter cited as Key

Facts).

~ 3 Time of Change at 25.

African American or white, young mothers

under age 25 are very likely to be poor.”

African American women, on average,

earn 56 cents for every dollar earned by

white men.* African American women with

college degrees earn a median income less

than the median income of white males with

eighth grade education.”

Wage inequities

particularly burden African American women

who tend to be clustered in narrow bands of

low-skilled jobs in occupacional categories

that are predominantly filled with women.

It has been estimated that in 1981, more

than 70 percent of all working African

”“ Key Facts at 53.

” B. Thornton Dill, L. Weber

Cannon, R. Vanneman, Pay Equity: An Issue

of Race, Ethnicity and Sex 1 (National

Committee on Pay Equity 1987).

a In 1982, college educated African

American women had a median income of

$16,183, while white males with an eighth

grade education had a median income of

$16,773. Key Facts at 62.

American women were employed in low-wage

service, clerical, private household,

retail sales and nondurable goods

. , 57

operatives jobs.

B. Most Low-Wage Jobs Lack Emp.ioyer-

Provided Health Coverage

Most low-wage jobs in which Africar

American women are overrepresented not

offer employer-provided benef.t pro r

including pensions and heaitn c r

particularly for dependent chiiarer

Health care financing for America

fea)

‘

4@)

)

’

7”

b |

(

’

age

employers. However, since 19%

provided insurance for both catastropnic

and routine care has become increasingly

unavailable. The number of uninsured

Low Wage Black Women at 12

” See, U.S. Commission on Civil

Rights, Health Insurance: Coverage and

Employment Opportunities for Minorities and

Women, Clearinghouse Publication 72

(1982).

mericans rose by one-fifth, from 30.9

million in 1980 to 37.1 million in 1987.”

By 1986, one out of three children

living in families in which at least one

family member was employed had no coverage

an employer plan. By contrast, about

half 50.7 percent) of African American

uch families were not

veered.” Among children living in

moderate-income families (those with

tween 200 and 400 percent of the

federal poverty level), the racial

disparity is even more alarming. While

.9 wnercent of white children in working

moderate-income families had employer

coverage in 1986, only 69.6 percent of

- Children's Defense Fund, A Vision

for America's Future 8 (1989) (hereinafter

cited as A Vision).

A Vision at 9.

comparably situated African American

children were similarly protected.®

Having no health insurance places the

existing children of African American

working mothers in immediate peril. In

fact, this lack of coverage and access to

care may be more harmful than the potential

hazard to uncontemplated future offspring

posed by working in a job which may involve

exposure to hazardous substances. Employers

implementing fetal protection policies are

trading off health risks and placing the

health of existing children - and the

stability of their families - in jeopardy.

One measurement of the health of a

nation is its infant mortality rate. The

United States' infant mortality rate was

10.4 deaths per 1,000 live births in 1986,

placing it eighteenth in the world. The

A Vision at 9.

rate among African American infants was

18.0 deaths per 1,000 live births, which on

its own, would rank the United States

twenty-eighth in the worla.™

The percentage of births to women who

received prenatal care early in pregnancy

has dropped three times in the 1980s --

most recently between 1985 and 1986, when

it fell from 76.2 percent to 75.9 percent.

If the very slow overall rate of progress

made during the 1978-1986 period continues

until the year 2000, one out of every five

births (and more than one-third of African

American births) will be to a woman who

failed to receive this crucial care early

in pregnancy.” Children born to women who

fail to receive prenatal care are three

times more likely to die in infancy than

ad A Vision at 4.

those whose mothers receive comprehensive

care. Babies whose mothers’ receive

inadequate care also are at greater risk of

being born at low birthweight, a condition

that increases the likelihood of permanent

lifelong disabilities.”

Unimpeded equal employment oppor-

tunities, particularly for jobs with

adequate wages, are essential for African

American women and their families. Higher

paying jobs in manufacturing industries are

disappearing. Six of every seven new jobs

created between 1979 and 1987 were in the

retail trade or service industries --

sectors with the lowest average wage

levels. Industries that have been

shrinking since 1979 -- such as mining and

manufacturing -- paid 42 percent more

A Vision at 12.

annually than those that were expanding

during the same period.”

Policies which restrict access to

better employment for women will have

devastating effects on African American

women, a group of Americans who are already

hampered by intentional and covert race

discrimination in employment, as well as

inadequate education and training. African

American women need full access to

employment that provides a living wage,

heaith and pension benefits, and family

security and stability.

CONCLUSION

This case implicates two criticai

issues. First, the decision of the lower

court jeopardizes long-standing principles

of employment discrimination law. Distinct

Judicial approaches to the analyses of

65 ai

A Vision at 18.

subtle and overt discrimination have been

crucial to the effectiveness of Title VII

in reducing the many forms of discrimi-

nation which continue to plague the

American workplace. To blur’ these

distinctions is to weaken the ability of

Title VII to protect against even the most

blatant forms of employment discrimination,

such as the categorical exclusion of a

class from employment opportunities.

Second, this case raises issues of

employer responsibility for the maintenance

of healthy work environments. AS a

consequence of disadvantage and

discrimination, African American workers

are overrepresented in dirty industries and

jobs. Employment policies which focus on

the danger of workplace hazards to only a

particular class of people ignore the

larger dimension of the problem = and

threaten the health status of those workers

who remain on the job.

For the reasons’ stated above, the

judgment of the Seventh Circuit should be

reversed.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS

CHARLES STEPHEN RALSTON

RONALD L. ELLIS*

MARIANNE ENGELMAN LADO

CHARLOTTE RUTHERFORD

99 Hudson Street

16th Floor

New York, NY 10013

(212) 219-1900

Counsel for Amici Curiae

*Counsel of Record

May 31, 1990

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.