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

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IN THE iat

SUPREME COURT OF THE UNITED sates

INTERNATIONAL UNION, UNITED

AUTOMOBILE, AEROSPACE &

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 FOR MASSACHUSETTS, ARIZONA,

CONNECTICUT, DELAWARE, FLORIDA,

LOUISIANA, MAINE, MICHIGAN,

MINNESOTA, NEBRASKA, NEW JERSEY,

NEW YORK, OHIO, OKLAHOMA, PUERTO

RICO, TEXAS, VERMONT, THE VIRGIN

ISLANDS, AND WASHINGTON AS AMICI

CURIAE URGING REVERSAL

JAMES M. SHANNON

Attorney General

JENNIFER WRIGGINS

MARJORIE HEINS*

JUDITH E. BEALS

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

(617) 727-2200

Attorneys for Amicus Curiae

Commonwealth of Massachusetts

*Counsel of Record

[Other counsel listed on inside of

cover}

2

OTHER COUNSEL FOR AMICI STATES

ROBERT K. CORBIN

Attorney General of Arizona

CLARINE NARDI RIDDLE

Attorney General of

Connecticut

CHARLES M. OBERLY, III

Attorney General of Delaware

ROBERT A. BUTTERWORTH

Attorney General of Florida

WILLIAM J. GUSTE, JR.

Attorney General of Louisiana

JAMES E. TIERNEY

Attorney General of Maine

FRANK J. KELLEY

Attorney General of Michigan

HUBERT H. HUMPHREY, III

Attorney General of Minnesota

ROBERT M. SPIRE

Attorney General of Nebraska

ROBERT J. DEL TUFO

Attorney General of New Jersey

ROBERT ABRAMS

Attorney General of New York

OTHER COUNSEL FOR AMICI STATES (ctd.)

ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

ROBERT H. HENRY

Attorney General of Oklahoma

HECTOR RIVERA-CRUZ

Attorney General of

Puerto Rico

JIM MATTOX

Attorney General of Texas

JEFFREY L. AMESTOY

Attorney General of Vermont

GODFREY R. DE CASTRO

Attorney General of

the Virgin Islands

KENNETH O. EIKENBERRY

Attorney General of Washington

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........ ei

INTERESTS OF AMICI CURIAE ......1

SUMMARY OF ARGUMENT ..... +. + « «18

ARGUMENT . . + © © © © «© «© © © «© «© « 2l

I. JOHNSON CONTROLS’ "FETAL

PROTECTION" POLICY

CANNOT BE JUSTIFIED AS

A BFOQ UNDER TITLE

ee eS ee ee ae oe eo ee

II. JOHNSON CONTROLS’ "FETAL

PROTECTION" POLICY

IS NOT JUSTIFIED ON

GROUNDS OF PUBLIC

HEALTH . . «© -© «© © © «© «© « «30

A. Johnson Controls’

CONCLUSION .. «© «© © © © © © © © «© « 924

CASES

Arizona Governing Committee v.

Norris, 463 U.S. 1073

DE i ae Gh cee he ee eg gs:

Massachusetts v. Snow

898 F.2d 274 (1st Cir. 1990)

calif ia Fed 1 Savi . I

v. Guerra, 479 U.S. 272 (1987).

Diaz v. Pan American World Airways,

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

cert. denied, 404 U.S. 950

(1971) oe _ o _ * oO . o eo +

bothard y. Rawlinson. 433 U.S. 321

(1977) — . oe °* — oe * 23, 24, 26,

Envi tal E lati

Vv j ,

855 F.2d 48 (2d Cir. 1988) .

Farmington Education Association

v. Farmington School District,

133 Mich. App. 566, 351

N.W. 2d 242 (1984)... .

Hayes v. Shelby Memorial Hosp.,

726 F.2d 1543 (llth Cir. 1984),

rehearing den. 732 F.2d

944 (1984) @ eo * > — * eo . . a

International Union, UAW v. Johnson

Controls, 886 F.2d 871

27

11

-24

27

[Fem Care 3900) . «© oe 6 «6 « + MOORS

International Union UAW v. Johnson

Controls, 680 F.Supp. 309

(E.D. Wis. 1988) ......... 31

(1978) o o . . . . . . . . . * . . 27

Lynn Teachers Union, Local 1037

z =o

Against Discrimination, 406 Mass.

515, 549 N.E.2d 94 (1990) .....3

Massachusetts Electric Co. v.

: ; tts ¢ 2s a

Discrimination, 375 Mass. 160,

375 N.E.2d 1192 (1978)... .. . 2-3

wien 4

Ee ee

of Civil Service, 101 Mich.

App. 295, 301 N.W.2d 12 (1980),

app. denied. 411 Mich. 1034

Ge «as so 6 & 6-4 6's © ele 8

People v. N.Y.C. Transit

Authority, 59 N.Y.2d

a =e a ae

United Steelworkers of America

v. Auchter, 763 F.2d 728

(3G GaP. BOGOP ew wc ce eee ee es

Uni Ww s erica

v. Marshall, 647 F.2d 1189

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

denied 453 U.S. 913 (1981) .... 41

Weeks Vv. ell Tel.

& Tel. Co., 408 F.2d 228

(Sth Cir. 1969). ....... 23, 24

-iii-

Pub. L.

2076 (codified at 42 U.S.C.

AMOUWMMM mM

No.

G6Si({B) (22) . «© © « © » « 4

G67(@) « «© © «© © © © © o 4

G67(B) «© © © © © © © @ o hl

G67tG) (2) « © © © © «© eo Bi

2000e et seg ss « w Be

2000e - 2(e) (2). o e@ «© « aa

200G@O(KR) « «© © © © @ o oc 2b

95-555, §1, 92 Stat.

$2000@(K)) .- «© «© © © © © © © © © ce 2A

Mass. Const. pt. 1, art. 1. ..... 2

Mass. Gen. L. ch. 151B (1988) .... 2

Mass. Gen. L. ch. 149 §105D (1988). . 2

Mich. Comp. Laws Ann. § 37.2101

(West 1985 & Supp. 1990). ..... 2

Minn. Stat. ch. 363 (1988). ..... 2

N.Y.S. Exec. Law §296 —

1982 & Supp. 1990). .... — 2

REGULATIONS

29 C.F.R. § 1604.2(a) (1989) .... 24

29 C.F.R. § 1604.10 (1989) ..... 25

29 C.F.R. § 1910.1025 (1989) ..17, 51

29 C.F.R. § 1910.1044 (1989) ....17

29 C.F.R. § 1910.1047 (1989) .... 17

29 C.F.R. § 1910.1200 (1989) .... 49

29 C.F.R. § 1920.1025 (1989) . . 41, 42

29 C.F.R. § 1952 (1989) ...... 212

54 Fed. Reg. 2781 (January 19, 1989) 13

43 Fed. Reg. 52,960

(November 14, 1978). ....... 41

-iv-

OTHER SOURCES

Ashford & Caldart, The Control

e

of Reproductive Hazards in the

Workplace, 5 Ind. Rel. L.J. 523

(1983). e oO eo eo eo oe eo s _ . >. . . 36

Ashford, Policy Considerations

for Human Monitoring in the

Workplace, 28 J. Occ’1p. Med.

563 (1986) - s 8 ”. s oe s o . — . . 44

Becker, From Muller v. Oregon to

Feta] Vulnerability Policies,

53 U. Chi. L. Rev. 1219 (1986). . 7,

18, 34, 3

Binsacca, Ellis, Martin & Petitti,

Factors Associated With Low

Birth Weight in an Inner City

Population: The Role of

Financial Problems, 77 Am. J.

Pub. Health 505 (1987) ......8

Bullock, Lead-Acid Battery ,.

Manufacturing, in 3 Industrial

Hygiene Aspects of Plant

Qperations (L.V. Cralley &

L.J. Cralley eds. 1985) .... . 45

Bureau of the Census, United

States Department of Commerce,

S -

Statistical Abstract of the

United States (109th ed. 1989). 4-5,

Bureau of Labor Statistics,

U.S. Department of Labor,

Occupational Injuries and

Illness in the United States by

Industry 1986, Bulletin 2308

nn + « # » eee 66 * Ss € e+ wht

Bureau of National Affairs,

Pregnancy and Employment:

The Complete Handbook on

ave,

F ‘minati Mat ity I

and Health and Safety (1987) .. . 44

Bureau of National Affairs,

- _ W: ato

Update on Providing Chemical

Hazard Information (1985)... . . 49

Centers for Disease Control,

j - j ses

+ ty - . aa.

34 Morbidity and Mortality

Weekly Report 537 (1985) . 15, 16, 42

Chez, Haire, Quilligan & Wingate,

ies:

Obstetrical and Prenatal Factors,

in Prevention of Embryonic,

e n j isease

(R.L. Brent & M.I. Harris

ae eens hos aie oe & e 6 alee ®

Congressional Research Service,

Library of Congress, Health

Pe Saas CA ao a ae ck eo

Daniels, Paul & Rosofsky, Family,

Work and Health (1988) (issued

by Massachusetts Department of

Public Health) .. 15, 16, 35, 42, 43

EEOC Policy Guidance on Seventh

Circuit Decision in United

Auto Workers v. Johnson Controls,

Inc, 2 EEOC Compl. Man. 44319 (CCH)

(January 26, 1990). . . 22, 23, 24, 30

House and Senate Joint Economic

Committee, Estimating the

Nati 1 Healt} 1 Socia)

Well-Being, S. Doc. No. 198, 98th

Cong., 2d. Sess. (1984) ..... .- 8

Massachusetts Interagency Task

Force on Occupational Injury and

Illness, Surveillance and

Intervention, Occupational

Safety and Health in

Massachusetts - The Need For

Surveillance (1989). ... .. +. «14

Meyerowitz & Lipkin, Psychosocial

Aspects, in Prevention of

Disease (R.L. Brent & M.I.

Barris @e@8. 1976) . «-c«e«reeenee 8

National Center for Children in

Poverty, School of Public

Health, Columbia Univ.,

; Bee -

Five Million Children, A

a gg a

;. rrr a eee Pe

Needleman & Bellinger, Commentary,

46 Env. Research 190 (1988). . 18, 40

Occupational Health (B. Levy & D.

Wegman eds. 1983) .... . + -passim

Office of Technology Assessment,

U.S. Congress, Vv ss

1 In; in’ the Morkn)

OTA~-H-256 (1985) 'eesb&se 08s OF

-vii-

Office of Technology Assessment,

U.S. Congress, Reproductive

W ce,

OTA-BA-266 (1986) ..... . passim

Paul, Daniels & Rosofsky, Corporate

Response to Reproductive Hazards

in_the Workplace: Results of the

e

Family, Work, and Health Survey,

16 Am. J. of Indus. Med. 267

(1989) . . * o . o * . . . . . . . 36

Intensive Care (S. Adajem &

A. Brown eds. 1977) ........ 8

Ww A ’

(S. Rix ed. for the Women’s

Research and Education

supeeeeee BOUG) « & so 6 6 le + le, 8

U.S. Department of Labor, An

i e fe) ess on

u j iseases

(1980) _ . >. a >. 7 . . i 7 . > -19

-viii-

The Attorneys General of

Massachusetts, Arizona, Connecticut,

Delaware, Florida, Louisiana, Maine,

Michigan, Minnesota, Nebraska, New

Jersey, New York, Ohio, Oklahoma,

Puerto Rico, Texas, Vermont, the Virgin

Islands, and Washington submit this

brief amici curiae in support of the

petitioners International Union et al.,

urging this Court to reverse the

judgment of the United States Court of

Appeals for the Seventh Circuit.

INTERESTS OF AMICI CURIAE

The amici states joining in this

brief have a number of compelling

interests that are threatened by the

broadly exclusionary "fetal protection"

policy at issue in this case. First,

the states have a strong interest in

equal employment opportunity and in the

right of their female, as well as male,

citizens to participate in the

workforce free from gender-based

discrimination. The states’ interest

in freedom from employment

discrimination based on sex is

reflected in state antidiscrimination

laws, 2/ which are frequently enforced

to provide more protection for

employees than do the cognate

provisions of federal law. 2

The states have a part.acular

interest in remedying the economic

problems related to gender

discrimination: the continuing wage

1/ E.g., Mass. Gen. L. ch. 151B

(1988); Mass. Gen. L. ch. 149, §105D

(1988); Mass. Const. pt. I, art. I;

Mich. Comp. Laws Ann §37.201 (West 1985

& Supp. 1990); Minn. Stat. ch. 363

(1988); N.Y.S. Exec. Law §296

(McKinney 1982 & Supp. 1990).

2/ See, e.g., Cal. Fed. Sav. & Loan v.

Guerra, 479 U.S. 272 (1987); Mass.

2—_Vs S - inst

(footnote continued)

-2-

gap between male and female workers,

and the poverty of many female-headed

households. The exclusion of women

from decent-paying jobs makes families

(especially those that are

female-headed) poorer, which in turr

has a host of adverse health as well as

financial consequences.

The majority of women are in the

national workforce, and their numbers

are increasing, yet despite

(footnote continued)

Discrimination, 375 Mass. 160, 375

N.E.2d 1192 (1978); Lynn Teachers

Union, Local 1037 v. Mass. Comm’n

Against Discrimination, 406 Mass. 515,

549 N.E.2d 94 (1990); People v. N.Y.C.

Transit Authority, 59 N.Y.2d 343

(1983); Farmington Educ. Assoc. v.

ist, 133 Mich. App.

566, 351 N. -W. 2d 242 ‘go Michigan

? 7 't

of Civil Service, 101 Mich. App. 295,

301 N.W.2d 12 (1980), app. denied 411

Mich. 1034 (1981).

3/ As of 1988, 56.6 percent of all

(footnote continued)

-3-

antidiscrimination laws, women continue

to suffer from a substantial wage gap.

Wages of women are far lower than those

of men in virtually every employment

category. 4/ Because of this wage

differential, female-headed households

face particular difficulties. One

third of the individuals living in

female-headed families are poor, and

female-headed families are four times

as likely as other families to be

(footnote continued)

women age 16 or older were in — labor

force. W

app. at 376, table 14 (S. Rix a. for

the Women’s Research and Education

Institute 1990) [hereinafter WREI

report]. The labor force participation

of women between the ages of 20 and 44

(the primary reproductive years) ranged

from 73 to 75% in 1988. Id., app. at

377, fag. $-

4/ Bureau of the Census, U.S. Dep’t of

Commerce, Statistical Abstract of the

(footnote continued)

-4-

S/

living in poverty.

One of the causes of this overall

wage differential is that women have

traditionally been excluded from

higher-paying blue-collar jobs. This

is changing only slightly, and women

are still paid less than men even while

6/

working in traditionally male jobs.

Of significant concern to the

(footnote continued)

United States (109th ed. 1989) at 406,

Table 666 [hereinafter Statistical

Abstract]. The median annual income of

women working full time in 1986 was

only 65% of the median annual income of

men working full time. WREI report,

supra note 3, app. at 390, fig. 10. In

1987, women constituted 65% of all

hourly workers making at or below

minimum wage. Statistical Abstract,

supra at 411, table 675.

5/ WREI report, supra note 3, app. at

363, 396, table 31.

6/ For example, in 1988, only 1.4% of

employed women worked in the

construction industry, in contrast to

(footnote continued)

-5-

states is that exclusion of women from

certain jobs, particularly those

providing relatively high wages and

good benefits, will have negative

long-term effects on public health and

particularly on the health of

children. Many women forced into

unemployment or lower-strata jobs can

be expected to lose employer-provided

health insurance. Underemployment also

plays a significant role in determining

(footnote continued)

10.9% of employed men. WREI_ report,

Supra note 3, app. at 385, fig. 9.

Data for women’s wages in construction

are not available because of the small

sample size, but for the "precision

production" category, which includes

construction trades, in 1987 the median

weekly earnings of men were $431, while

women’s median weekly earnings were

$302. Statistical Abstract, supra note

4 at 406, table 666.

7/ The National Center for Children in

Poverty recently reported that "in

(footnote continued)

-6-

a person’s likelihood of being

insurea. 2/

With a loss of health insurance,

the well-documented negative health

effects of unemployment, low wages and

poverty can only be exacerbated.

Unemployment is related to a number of

adverse health outcomes, including

increased rates of death, suicide, and

(footnote continued)

1985, 1.5 million poor children under

six ~ 30 percent - were not eligible

for Medicaid and were not covered by

any other type of health insurance. In

addition, nearly 1 million near-poor

children under six - 32 percent -

lacked health insurance coverage from

any source." National Center for

Children in Poverty, School of Public

Health, Columbia University, Five

Million Children, A Statistical Profile

of Our Poorest Young Citizens 64

(1990) (hereinafter Five Million

Children}. See generally, Becker,

From Muller v. Oregon to Fetal

Vulnerability Policies, "3 U. Chi. L.

Rev. 1219, 1230-1232 (1586).

8/ In 1986, 24.4% of full-time

employees working throughout the year

Jo

admissions to mental hospitals. 2/

Indeed, most infant morbidity and

mortality in the United States is

linked to premature birth and low

birthweight. These factors in turn are

strongly associated with poverty and

inadequate prenatal care. +2/

(footnote continued)

lacked health insurance, while 75% of

part-time employees working throughout

the year lacked health insurance.

88.7% of part-time work<e:s who worked

only part of the year had no health

insurance. Congressional Research

Service, Library of Congress, Health

j : ound

Ss

Data and Analysis 97 (1988).

S/ House and Senate Joint Econ. Comn.,

stimating the c onomic

Change on National Health and Social

Well-Being, S. Doc. No. 198, 98th

Cong., 2d. Sess. 2-5 (1984).

10/ Binsacca, Ellis, Martin & Petitti,

tors Wi w_Bi

Weic] . I sity F lation:

The Role of Financia] Problems, 77 Am.

J. Pub. Health 505 (1987). See also,

Rush, Socioeconomic Status and_

(footnote continued)

-8-

Thus, a policy like Johnson

Controls’, which deprives virtually all

women of access to a broad range of

relatively high-paying, secure,

unionized jobs, not only undermines the

states’ concerns for equal employment

opportunity but exacerbates the

continuing effects of gender

disparities in the workforce: lower

(footnote continued)

Perinatal Outcome, in Prenatal

Intensive Care 14-17 (S. Adajem & A.

Brown eds. 1977) (discussing striking

relationship between changes in the

unemployment rate and changes in infant

mortality rate); Meyerowitz & Lipkin,

Psychosocial Aspects, in Prevention of

j sease

263, 267 (R. L. Brent & M. I. Harris

eds. 1976) (discussing correlation

between adverse economic, social and

family circumstances for the pregnant

woman and pregnancy complications,

prematurity, low birth weight and

subsequent developmental problems for

their infants); Chez, Haire, Quilligan

& Wingate, High-Risk Pregnancies:

s t s, in

(footnote continued)

-9-

wages, poverty, underinsurance, and

poor health.

The amici states also have an

interest in removing health hazards

from the workplace. This interest is

recognized in the Occupational Safety

and Health Act, which “encourag[es] the

States to assume the fullest

responsibility for the administration

and enforcement of tneir occupational

safety and health laws ..." 29 U.S.C.

§651(b)(i1). The Act reserves power to

the states over "any occupational

safety or health issue with respect to

which no federal standard is in

effect..." 29 U.S.C. §667(a). Under

(footnote continued)

Prevention of Embryonic, Fetal, and

Perinatal Disease, supra at 70-72

(discussing correlations between

socioeconomic status and successful

pregnancies, and between health care

and successful pregnancies).

-10-

this section states are free to adopt

standards more stringent than those

promulgated by the Occupational Safety

and Health Administration ("OSHA") if

their effect is to protect the health

and safety of the public.+// The Act

also permits states to submit plans to

develop and enforce occupational safety

and health standards where OSHA

standards are already in effect,

provided that such plans are "at least

as effective" as OSHA standards. 29

1l/ Assoc. Indus. of Mass. v. Snow,

898 F.2d 272 (lst Cir. 1990). See

also, Envtl. Encapsulating Corp. v. New

York City, 855 F.2d 48 (2d Cir.

1988) (state asbestos regulations are

not expressly preempted by OSHA because

they have a legitimate and substantial

purpose of promoting public safety and

health).

-li-

U.S.C. §667(b) , (c) (2) .22/

Given the states’ strong interest

in and responsibility for workplace

health and safety, they are gravely

concerned about the widespread nature

of occupational health hazards, the

costs of resulting occupational

disease, and the ways in which a "fetal

protection" policy like Johnson

Controls’ ignores dangers to the male

reproductive system and in fact may act

as a disincentive to cleaning up

workplaces.

Health problems caused by workers’

exposure to harmful substances are

widespread. OSHA estimates that more

12/ There are 23 OSHA-approved state

plans to develop and enforce

occupationai safety and health

standards. 29 C.F.R. § 1952 (1989).

These states have effectively assumed

all responsibility for ensuring safe

and healthy work environments for their

citizens.

-12-

than 21 million employees are

potentially exposed to hazardous

substances in the workplace and that -

more than 4 1/2 million of them are

exposed above the limits set by

osHa.22/ The result of these

exposures is widespread occupational

disease, from which an estimated

100,000 people die annually

nationwide.24/ The national rate of

occupational illness reported by the

U.S. Department of Labor in 1985 was 10

per every 10,000 workers; the national

13/ Preamble to OSHA Final Rule

Revising Workplace Air Contaminant

Limits, 54 Fed. Reg. 2781, 2725

(January 19, 1989) fhereinafter OSHA

Final Rule].

14/ Office of Technology Assessment,

U.S. Congress, Preventing Illness and

Injury _in the Workplace, OTA-H-256

37(1985). An estimated 10 percent of

all deaths from cancer, for example,

have an occupational origin. OSHA

Final Rule, supra note 13, at 2781.

-13-

rate just one year later was 19 per

every 10,000 workers .+2/

Reproductive health hazards, the

particular focus of Johnson Controls’

policy, are particularly widespread.

According to federal estimates, more

than 14 million workers are potentially

exposed each year to known or suspected

reproductive hazards on the job.

Reproductive disorders are among the

ten leading work-related disorders in

15/ Bureau of Labor Statistics, U.S.

Dep’t. of Labor, Occupational Injuries

and Illnesses in the United States by

Industry 1986, Bulletin 2308 p. 5

(1988). In Massachusetts alone, an

estimated 4,000 new cases of

work-related illness were diagnosed and

reported in 1987. Massachusetts

Interagency Task Force on Occupational

Injury and Illness Surveillance and

Intervention, Occupational Safety and

Health in Massachusetts - The Need For

Surveillance 4 (1989).

-1A-

the United states. +9/ At least 50

substances in common industrial use are

known or suspected reproductive hazards

basea on human or animal data, i7/

yet only three are federally regulated

by OSHA based partially on reproductive

l16/ Centers for Disease Control,

Lead Work-Related Di

injuries - United States, 34 Morbidity

and Mortality Weekly Report 537, 538

(1985) [hereinafter CDC}

17/ cDC, supra note 16, at 537.

Reproductive workplace hazards include

a wide range of substances, including

lead, ethylene oxide,

dibromochloropropane (DBCP), organic

and inorganic mercury, ionizing,

radiation, anesthetic gases, alkylating

agents, glycol ethers, carbon

disulfide, and infectious agents which

can cause intrauterine infections.

Daniels, Paul & Rosofsky, mi Work

and Health, 21-22 (1988) (issued by

Mass. Dep’t of Public Health);

Occupational Health 310-312 (B. Levy &

D. Wegman eds. 1983); Office of

Technology Assessment, U.S. Congress,

Reproductive Health Hazards in the

Workplace, OTA-BA-266 (1986)

[hereinafter Reproductive Health

Hazards] at 85-86. Glycol ethers have

(footnote continued)

-15=-

a

et

As the above data suggest,

reproductive workplace hazards affect

both men and women. Indeed, OSHA,

which regulates lead,

(footnote continued)

been shown to be teratogenic in animal

studies and toxic to sperm in human and

animal studies. Daniels et al., supra

at 20. An estimated 200,000 workers

are potentially exposed to glycol

ethers. CDC, supra note 16, at 538.

Studies have shown that paternal

exposure to anesthetic gases is

strongly associated with an increased

rate of congenital abnormalities, while

maternal exposure is strongly

associated with an iicreased

spontaneous abortion rate.

Occupational Health, supra at 310.

Alkylating agents used in cancer

chemotherapy have been shown to produce

permanent sterility. Id. at 312.

Ethylene oxide, used in medicine and

industry, causes testicular damage and

impaired fertility, according to animal

studies. Reproductive Health Hazards,

Supra, at 85-86.

18/ These are lead, ethylene oxide,

and dibromochloropropane (DBCP). 29

(Footnote continued)

-16<-

dibromochloropropane (DBCP) and

ethylene oxide partially on the basis

of their reproductive effects,

regulates these substances in a

gender-neutral way .+2/although

research conducted thus far has largely

ignored the effects of many substances

on men’s reproductive systems and on

reproductive effects traceable to the

operation of men’s reproductive systems

(e.g., the operation of defective

(footnote continued)

C.F.R. §1910.1025 (1989) (lead

regulations); 29 C.F.R. §1910.1047

(1989) (ethylene oxide regulations); and

29 C.F.R. §1910.1044 (1989) (DBCP

regulations).

19/ See, 29 C.F.R. §1910.1044 (1989),

29 C.F.R. §1010.1047 (1989), 29 C.F.R.

§1910.1025 (1989).

-17-

sperm) , 22/ the states are concerned

that "fetal protection" policies which

focus only on removing women from

contact with a particular hazard ignore

the health risks to men and their

offspring and reduce employer incentive

to find alternatives to dangerous

chemicals. The states have a strong

interest in protecting all of their

citizens by removing reproductive and

21/

other hazards from the workplace.

SUMMARY OF ARGUMENT

Johnson Controls’ “fetal

20/ Occupationa) Health, supra note 17

at 307, Becker, supra note 7 at 1236-7;

Reproductive Health Hazards, supra note

17 at 16-17; Needleman & Bellinger,

Commentary, 46 Env. Research 190-191

(1988).

21/ States also lose revenue as a

result of occupational disease.

(footnote continued)

-18-

protection" policy constitutes sex

discrimination in violation of Title

VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seg. Because Johnson

Controls’ policy is facially

discriminatory, the only defense it can

assert is that sex is a bona fide

occupational qualification ("BFOQ"). A

"fetal protection" policy, however,

cannot be justified as a BFOQ because

fertile women can unquestionably

(footnote continued)

According to a national survey, $11.4

billion in income was lost in 1978

because of disabling occupational

illness. Massive wage loss of course

reduces tax revenues. Conversely,

welfare costs, funded in part by the

states, rise on account of workplace

hazards. Welfare currently provides

16% of the fun?s replacing income lost

by individua disabled from

occupational disease. U.S. Dep’t of

Labor, An Interim Report to Congress on

Occupational Diseases 2 (1980).

-1]19-

perform the jobs at issue and because

the protection of possible fetuses is

not the essence of a battery

manufacturer’s business within the

meaning of Title VII.

Moreover, Johnson Controls’ policy

is not justified on the grounds of

public health. First, the exclusion of

virtually all women from a wide

category of jobs contributes to a

gender-stratified workforce and

undermines the economic and social

well-being of women and their

families. Second, such policies ignore

workplace reproductive hazards to men

and operate as a disincentive to

cleaning up the workplace. The Court

should therefore reverse the judgment

of the court below and either remand

for further proceedings or direct the

-20-

entry of a judgment for the petitioners.

ARGUMENT

I. JOHNSON CONTROLS’ "FETAL

PROTECTION" POLICY CANNOT BE

JUSTIFIED AS A BFOQ UNDER

TITLE VII.

Johnson Controls’ "fetal

protection" policy on its face

constitutes sex discrimination in

violation of Title VII of the Civil

Rights Act of 1964, 22/ as it

explicitly excludes all fertile women

from a broad range of jobs. Intern.

Union, UAW v. Johnson Controls, Inc.,

886 F.2d 871, 876-7 (7th Cir. 1989).

22/ 42 U.S.C. §2000e, et seg., as

amended in 1978 to provide that

unlawful sex discrimination includes

discrimination on the basis of

"pregnancy, childbirth, and related

medical conditions." Pregnancy

Discrimination Act, Pub.L. No. 95-555,

§1, 92 Stat. 2076, (codified at 42

U.S.C. § 2000e(k)).

-2l1-

Because Johnson Controls’ policy is

facially discriminatory, the only

defense it can assert is that sex is a

"bona fide occupational qualification

reasonably necessary to the normal

operation of that particular business

or enterprise," 42 U.S.C. §

2000e-2(e) (1) .22/ The BFOQ is "an

extremely narrow exception to the

general prohibition of discrimination

on the basis of sex." Dothard v.

23/ The states thus agree with the

Equal Employment Opportunity Commission

(EEOC) that a defendant "in a case

challenging a facially discriminatory

fetal protection policy [should be

allowed] only the statutory defense

that sex is bona fide occupational

qualification." EEOC Policy Guidance

on Seventh Circuit Decision in United

Auto Workers v. Johnson Controls,

Inc., 2 EEOC Compl. Man. (CCH) 44319

(Jan. 26, 1990) [hereinafter EEOC

Policy Guidance]. See, Ariz. Governing

Com. v. Norris, 463 U.S. 1073, 1084 n.

13 (1983). But even if this Court were

(footnote continued)

-22-

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

The BFOQ is a narrow defense precisely

because the purpose of Title VII is to

outlaw the assumptions and stereotypes

that kept women from equal employment

opportunity. Jd. at 333-4, nn. 18, 19;

408 F.2d 228, 232 (5th Cir. 1969) .24/

, curden of proof for a BFOQ is

“ne employer: "[A])n employer [can]

(footnote continued)

to permit application of the business

necessity defense to explicit sex

discrimination, Johnson Controls’

policy cannot be justified, as the

states demonstrate below.

24/ The EEOC has stated that in the

context of a fetal protection policy,

the BFOQ defense "should be read

narrowly." EEOC Policy Guidance, supra

note 23, at D-3. Employment decisions

regarding women based on "stereotyped

characterizations of the sexes" or

(footnote continued)

=-23-

rely on the BFOQ exception only by

proving ‘that he had reason to believe,

that is, a factual basis for believing,

that all or substantially all women

would be unabie to perform safely and

efficiently the duties of the job

involved.’" Id., quoting Weeks, 408

F.2d at 235. The employer must

demonstrate that "the essence of the

business operation would be undermined

by not hiring members of one sex

exclusively," Dothard, 433 U.S. 321,

333, quoting Diaz v. Pan American World

Airways, 442 F.2d 385, 388 (5th Cir.),

cert. denied, 404 U.S. 950 (1971)

(emphasis in original).

(footnote continued)

"assumptions of the comparative

employment characteristics of women in

general" do not warrant application of

the BFOQ defense. 29 C.F.R. §

1604.2(a)(1)(i),(ii) (1989).

-24-

Johnson Controls’ "fetal

protection" policy cannot withstand the

test for a BFOQ. First, it does not

exclude "all or substantially all

women" from allegedly hazardous areas,

and it excludes women from areas that

are admittedly non-hazardous. Women

already working in allegedly hazardous

areas and women who prove their

sterility can remain in those areas,

886 F.2d 871, 876. At the same time,

all fertile women are excluded from a

range of completely lead-free

environments. Id. at 877. Thus,

Johnson Controls’ policy is both too

broad and too narrow to be justified as

a BFOQ.

More importantly, however, Johnson

Controls did not and cannot establish

that its wholesale exclusion of women

-25<

is necessary to "the essence of [its]

business operation." Dothard, 433 U.S.

at 333. The Pregnancy Discrimination

Act and regulations promulgated

pursuant thereto make clear that the

differing reproductive functions of

women und men are not a legal basis for

engaging in sex discrimination, ana

that the only factor involved in

employment decisions regarding pregnant

employees is their ability or inability

to work. 22/ If fertile women could

not perform the job for some reason

25/ The regulations state that the

pregnant “employee must be permitted to

work at all times during pregnancy when

she is able to perform the job", and

that "an employer cannot refuse to hire

a woman because of her

pregnancy~related condition so long as

she is able to perform the major

functions necessary to the job." 29

C.F.R. § 1604.10, app. A8, Al2 (1989).

-26-

pertaining to their fertility, the

employer might establish a BFOQ. But

fertile women unquestionably can

perform the jobs at issue and exclusion

of fertile women in no way is essential

to the business of Johnson

26/

Controls.

The court below incorrectly relied

on Dothard v. Rawlinson, where the

26/ Johnson Controls presented no

evidence of any litigation or threat of

litigation related to lead exposure.

Judge Easterbrook noted that the

possibility of "tort judgments means

only that female employees’ average

cost to Johnson [Controls] exceeds that

of male employees." 886 F.2d at 914.

Higher costs of female employees are

not a permissible basis for

discrimination. Id. See also, Ariz.

j is, 463 U.S.

1073 (1983);

and Power _v. Manhart, 435 U.S. 702

(1978). In any event, speculative fear

of lawsuits can not be used to justify

a discriminatory classification. Hayes

j , 726 F.2d

1543, 1552-3 n. 15 (llth Cir. 1984).

employer was able to prove that being

male was a BFOQ for those assigned to

guard male prisoners because "“"[t)he

{female} employee’s very womanhood

would ... directly undermine her

capacity to provide the security that

is the essence" of the job

responsibilities at issue in the case.

433 U.S. 321, 336. Here, by contrast,

an employee’s "very womanhood" is

entirely unrelated to the manufacture

of batteries and does not undermine her

ability to perform the job.

In addition, no security or other

risk is posed by an employee’s "very

womanhood" because women make widely

varying sexual and reproductive

choices. For example, a woman could be

involved with a sterile man, could

decide not to be sexually active, could

-28-

decide not to be heterosexually active,

could use birth control, or could

decide that if, despite birth control,

she became pregnant during a certain

pericd in her life she would optain an

abortion. For women to become equal

participants in the workforce with men,

this range of reproductive choices must

be recognized. Women must not always

and only be treated as potentially

pregnant. */ Title VII forbids

employers from adopting exclusionary

policies based on outmoded stereotypes

and assumptions, as Johnson Controls

27/ Moreover, Johnson Controls’ policy

ignores the fact that many fertile

women are unlikely to get pregnant.

The birth rate for women age forty has

been almost zero. In 1986, there was

only a 0.41% probability that a woman

between 40 and 44 years of age would

give birth. isti s et,

supra note 4 at 62.

-29-

has done. 28/

II. JOHNSON CONTROLS’ "FETAL

PROTECTION" POLICY IS NOT

JUSTIFIED ON GROUNDS OF PUBLIC

HEALTH.

Even if this Court were to

entertain the notion of expanding the

28/ Even if a narrowly tailored policy

aimed at fetal protection could

constitute a BFOQ, summary judgment

should not have been granted on the

record below. See, EEOC Policy

Guidance, supra note 23 at D-3

(requiring employer to prove that there

is (1) a substantial risk of harm to

offspring through workplace exposure to

a hazard; (2) the risk occurs only

through the exposure of one sex; (3)

its policy minimizes the risk while

excluding the narrowest possible group;

and (4) there are no reasonable

alternatives which are less onerous to

women). These burdens were not placed

on the emplover in this case, and the

employer on the record did not satisfy

then.

The District Court acknowledged

that there was a dispute about material

facts: “whether there is a significant

risk of harm to the fetus from lead

exposure and whether that risk is

substantially confined to the offspring

of females, as opposed to male

workers." j Wiov s

-30-

BFOQ defense, or as the court below

did, weakening Title VII by permitting

a business necessity defense in

instances of facial discrimination,

Johnson Controls’ "fetal protection"

policy cannot be justified. First, the

exclusion of virtually all women from a

wide category of jobs undermines Title

VII’s goal of equal economic

opportunity and exacerbates the

economic and health problems of female-

headed families, and particularly of

children. Second, judicial approval of

such exclusionary practices ignores

(footnote continued)

Controls, 680 F.Supp. 309 (E.D. Wis.

1988), aff’d, 866 F.2d 871 (7th Cir.

1989). The record in addition contains

disputes among experts on the dangers

to fetal health caused by paternal and

maternal exposure to lead. At the very

least, Johnson Controls did not meet

its burden of showing the absence of a

(footnote continued)

-3l-

reproductive workplace hazards to men,

and operates as a disincentive to

cleaning up the workplace in the

interests of all citizens.

A. Johnson Controls’ Policy

- : VII?

nen ee

The Johnson Controls policy at

issue in this case is extremely broad.

It excludes "all women except those

whose inability to bear children is

medically documented" from all job

sites at which either one employee in

the past year has had 30 micrograms of

lead per deciliter of blood, or in

which an air sample of 30 micrograms

(footnote continued)

material factual dispute on the

necessity for a policy so broad that it

excludes women from jobs where there is

no exposure to lead, 886 F.2d at 877,

and applies to women who are not likely

to get pregnant.

-32-

per cubic meter has been taken in the

past year. Int’l Union, UAW v. Johnson

Controls, 886 F.2d at 876 n.8. The

policy also excludes all fertile women

from all jobs that, although not

involving exposure to lead, could lead

to such exposure "through the exercise

of job bidding, bumping, transfer or

promotion rights." Id. at 887. The

policy thus effectively excludes all

women from a broad range of jobs that

involve no contact with lead.

Excluding all women from broad

categories of jobs limits women’s

occupational and economic

opportunities. If courts permit

employers to bar all fertile women,

regardless of reproductive choice, from

job categories rather than removing

hazardous substances, economic

-33-

opportunities for women will be

dramatically reduced. 22/ Available

evidence suggests that so-called fetal

protection policies are already having

a significant impact on women’s

employment options. In 1985, the

Office of Technology Assessment

reported that at least 15 of the

Fortune 500 corporations have

implemented exclusionary policies that

exclude fertile or pregnant women from

work allegedly hazardous to

reproductive health. = A

Massachusetts Public Health survey of

chemical and electronics companies

found that nearly 20% of responding

’

29/ Becker, supra note 7 at 1229-1231.

30/ Reproductive Health Hazards,

Supra note 17, at ll.

-34-

companies excluded workers (almost

exclusively women) from certain types

of employment based on presumed

reproductive health concerns. 2//

"Fetal protection" policies have

been established primarily in

industries where women have only

recently begun to work or where there

is equal competition for jobs from men

and women. They are not found in

occupations such as nursing and

secretarial work, where women are the

31/ Daniels, et al., supra note 17, at

1. The study found that employers

actually knew very little about

reproductive hazards and that

exclusionary policies often had no

relationship to real reproductive

risks. Workers were sometimes

"protected" from substances that posed

no risk to them, while euployers were

often unaware that other substances in

use were hazardous to reproduction.

Id. at 1-2.

-35-

primary labor force. 22/ For women in

or prepared to enter traditionally

male-dominated occupations, policies

like Johnson Controls’ offer them a

Hobson’s choice: look for another job

(often at lower pay) or become

sterilizea.2?/ The policies thus

favor the continued stratification by

gender of the labor force, with men in

higher-paying jobs and women in

lower-paying jobs. This in turn

contributes to the poverty and

inadequate health care of so many women

and female-headed families.

32/ Becker, supra note 7, at 1230,

1238-1240. Paul, Daniels, Rosofsky,

s e ve

W : Res Ss oO

the Family, Work, and Health Survey, 16

Am. J. of Indus. Med. 267, 277,(1989).

33/ See, Ashford & Caldart, The Control

of Reproductive Hazards in the

Workplace, 5 Ind. Rel. L. J. 523, 535

(1983).

-36-

As Judge Easterbrook pointed out in

his dissent, excluding women from

employment on the basis of risks to

potential fetuses is a dangerous

principle, with limits that are

difficult or impossible to define.

How does the risk attributable to

lead compare, say, to the risk to

the next generation created by

driving a taxi? A female bus or

taxi driver is exposed to noxious

fumes and the risks of accidents,

all hazardous to a child she

carries. Would it follow that taxi

and bus companies can decline to

hire women? That an employer could

forbid pregnant employees to drive

cars, because of the risk accidents

pose to fetuses?

886 F.2d at 917. The principle at

stake here goes beyond the examples

used by Judge Easterbrook, because

Johnson Controls excludes not just all

pregnant women, but all fertile women

on the basis of purported risks to a

possible embryo conceived so recently

that the woman does not realize she is

-37<

pregnant. Could employers forbid all

fertile women to drive cars in

connection with their jobs, because of

possible injuries to a potential,

recently-conceived embryo, before the

woman knows she is pregnant?

Women need jobs as much as men do.

Reproductive hazards, rather than

women, should be removed from the

workplace. "Fetal protection" policies

like Johnson Controls’ reinforce

gender-stratification of the workforce

by excluding women from nontraditional

jobs and by treating women as if they

are essentially reproductive vessels

whose employment is nonessential. This

is contrary to Congress’ express

purpose in enacting Title VII and the

Pregnancy Discrimination Act, and

undermines the goal of full

-38-

participation in the workforce free

from sex discrimination.

B. Johnson Controls’ Policy

-

Undermines, Rather than

Promotes, Goals of Workplace

Health and Safety.

Men’s reproductive systems, as well

as women’s, are at risk from numerous

substances commonly used in

workplaces. 24, Yet so-called fetal

prctection policies ignore risks to

men’s reproductive health. It is true

that research about the effects of many

substances on men’s reproductive

systems and on male-mediated

reproductive effects is less developed

than that regarding female-mediated

34/ See, Interests of Amici Curiae,

Supra at 14-18.

-39-

reproductive effects.2/ But there

is no biological basis for assuming

that women or fetuses are more

susceptible to all reproductive hazards

than are men .>2/

For example, lead, the very

substance at issue in this case, is

hazardous to men and men’s reproductive

systems. OSHA, after an exhaustive

study, concluded that male exposure to

lead can cause:

a decrease in sexual drive,

impotence, decreased ability to

produce healthy sperm, and

sterility. Malformed sperm

(teratospermia), decreased number

35/ Occupational Health, supra nute 17

at 307; Reproductive Health Hazards,

Supra note 17, at 16-17; Needleman &

Bellinger, supra note 20 at 190.

36/ Reproductive Health Hazards, supra

note 17, at 68.

-40-

of sperm (hypospermia), and sperm

with decreased motility

(asthenospermia) can all

occur...Germ cells can be affected

by lead and cause genetic damage to

the egg or sperm.

29 C.F.R. § 1910.1025, app. C, II(5)

(1989) .2Y At the levels at which

Johnson Controls permits men to be

exposed to lead, which are the OSHA

37/ OSHA found that: "lead has

prufoundly adverse effects on the

reproductive ability of male and female

workers in the lead industry...Lead

exerts its effects prior to conception

through genetic damage (germ cell

alteration), effects on menstrual, and

ovarian cycles and decreased fertility

in women, decreased libido and

decreased fertility in men through

altered spermatogenesis... Following

birth the child of lead exposed parents

may exhibit birth defects, neurological

damage and the chances of death within

the first year may be increased." 43

Fed. Req. 52,960 (November 14, 1978).

See, United Steelworkers of America v.

Marshall, 647 F.2d 1189, 1257 (D.C.Cir.

1980), cert. denied 453 U.S. 913

(1981). See generally, Reproductive

Health Hazards, supra note 17, at 67-70.

-4l1l-

levels, reproductive hazards to men

have been shown. 22/ Yet Johnson

Controls’ policy does not restrict

men’s exposure to lead to the extent

that it restricts women’s exposure.

Similarly, while glycol ethers have

been shown in human and animal studies

to be toxic to sperm, and human

exposure has been estimated at 200,000,

employers surveyed have restricted

certain women, but not men, from

contact with these substances .>~/

The survey evidence aliso reveals that

females, but not males, are prohibited

38/ Asthenospermia, for example, has

been found at exposure levels of 41

micrograms/100 grams, while medical

removal under the OSHA standard occurs

at 50 micrograms. 29 C.F.R. §

1910.1025, II.5 (1989).

39/ CDC, supra note 16, at 538,

Daniels, et al., supra note 17, at 20,

40.

-42-

from holding jobs that may put them in

contact with mercury, which is a hazard

to both men’s and women’s reproductive

systems. 42/

While empirical evidence is

limited, it appears that men, through a

combination of circumstances including

limited research and employer

ignorance, are not pre*tected adequately

ee |

~- ~~

oductive hazards. Appareituy

-

repr

ney e. asthe. consider some

~¥ ts . .

Substances hazardous to reproductive

health and decide to institute stricter

policies than those required by OSHA,

they preclude only females from having

contact with the substances, while men

40/ Daniels, et al., supra note 17, at

20, 31.

-43-

are not similarly protected. 44/

Furthermore, "fetal protection"

policies reduce employer incentives to

clean up workplaces, and to develop

alternative materials or methods by

permitting employers to remove women

workers instead. 42/ The OSHA

respor se, by contrast (and the response

4l1/ Id. at 40. By contrast, in 1977

when DBCP, which was used both on crops

and ornamental plants, was discovered

by production workers to be toxic to

sperm, men were not removed from jobs

involving production or application of

DBCP. Instead, OSHA issued an

emergency standard protecting workers

and the chemical was banned in the

continental United States within four

years. Occupational Health, supra note

17 at 310: Reproductive Health Hazards,

supra not« 17, at 199-200; Bureau of

National Affairs, Pregnancy and

Employment: The Complete Handbook on

Discrimination, Maternity Leave, and

Health and Safety, 69-70 (1987).

42/ See, Ashford, Policy

Considerations for Human Monitoring in

the Workplace, 28 J. Occup. Med. 563,

565 (1986).

-44-

of many states), has been to regulate

hazards in a gender-neutral fashion. A

wide range of measures are availab’?2 to

employers seeking to lower workers’

exposure to leaa, 43/ but Johnson

Controls instead chose to bar virtually

all women from employment in relatively

high-paying, traditionally male jobs.

The Court should not permit these

gender-based patterns to continue.

In summary, "fetal protection"

policies, particularly those as

sweeping and overbroad as the one at

issue here, cannot be justified on the

basis of public health, for they ignore

reproductive risks to men, operate as a

disincentive to workplace cleanup, and

43/ See, Bullock, Lead-Acid Battery

Manufacturing, in 3 Industrial Hygiene

Aspects of Piant Operations 599-633

(L.V.Cralley & L.J.Cralley, eds. 1985).

-45-

force women and their children into

poorer economic situations which, as |

amici have discussed in their statement

of interest, in turn have a host of

adverse health consequences. As Judge

Cudahy asked in his dissent,

What is the situation of the

pregnant woman, unemployed or

working for the minimum wage and

unprotected by health insurance, in

relation to her pregnant sister,

exposed to an indeterminate lead

risk but well-fed, housed and

doctored? Whose fetus is at

greater risk?

886 F.2d at 902. In fact, according to

the National Center for Children in

Poverty, children of the former group

are at greater risk of impaired health

44/

than other children.

44/ Ironically, poor children are at

greater risk of harm from exposure to

lead, the substance of concern to

Johnson Controls. Poor children are

exposed to higher doses of lead in

their environments than are other

(footnote continued)

-46-

Removing all fertile women workers

from jobs with possible lead exposure

is not an acceptable solution to the

problem of exposure to lead of pregnant

women. Rather, the answer is to ensure

that all workers, female and male, have

comprehensive information and training

concerning the risks of exposure to

lead and other toxic substances, in

order to minimize the possibility that

parents will conceive and bear children

who are harmed by their parcnts’

workplace chemical exposure.

The Court below appeared to

interpret the fact that between 1979

and 1983 at least six women became

(footnote continued)

children, and the average blood

concentration of lead among children

from six months to five years increases

as the family income decreases. Five

Million Children, supra note 7 at 51,

54.

-47-

pregnant while working at Johnson

Controls as evidence of women’s lack of

responsibility regarding the risk to

their children’s health, stating "..it

would not be improbable that a female

employee might somehow rationally

discount this clear risk in her hope

and belief that her infant would not be

adversely affected from lead exposure."

866 F.2d at 897. 42/ As Judge Pcsner

noted in his dissent, however, during

45/ At oral argument, Johnson Controls

presented a defense to their policy

that the company is "morally required

te protect children from their parents’

mistakes." 866 F.2d at 912,

(Easterbrook, J., dissenting). As

Judge Easterbrook noted, however: "No

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, that the interests of the

next generation always trump the

interests of the living woman, and that

the only acceptable level of risk is

zero." 866 F.2d at 913.

-48-

that period of time, the company did

not provide adequate information to its

workers concerning the risk of lead

exposure; rather, it gave a warning

which "...was one more likely to allay

than to arouse concern." 886 F.2d at

907. Employers are now required to

provide their workers comprehensive

information concerning reproductive

46/

hazards.

46/ Under the federal hazard

communication standard promulgated by

OSHA in 1983, employers must provide

training and information to their

employees on workplace reproductive

hazards. 29 C.F.R. § 1910.1200,

1200(c) (1989). Even before the hazard

communication standard was promulgated

by OSHA, states throughout the country

had enacted “right to know" laws,

evidencing the concern of the states

for the potential health impacts of

toxic chemical exposure to workers and

their children. By 1985, 25 states had

such laws. Bureau of National Affairs,

Right-to-Know: A Regulatory Update on

(1985). Although state right to know

(footnote continued)

-49-

If employers comply with the law,

both male and female workers who are

considering parenting will now be ina

position to make informed choices to

guard the health of their children.

Undoubtedly most will decide not to

parent while they are exposed to toxic

chemicals which could harm their

children. In those situations where

workers do wish, nonetheless, to

parent, they should have a right to

request a reasonable accommodation if

they are planning to conceive or bear

(footnote continued)

laws are now preempted in the private

sector by OSHA’s hazard communication

standard, U.S. Steelworkers v. Auchter,

763 F.2d 728 (3d Cir. 1985), workers in

all states are now entitled to

information and training under the

federal standard.

-50-

children.4¥/ Such a reasonable

accommodation duty might be the best

means to accomplish the twin goals of

protecting the health of workers and

their children, and of securing equal

economic opportunity. With such

requirements, an employer has an

incentive to remove reproductive

hazards from workplaces. At the same

time, the goal of economic equality

47/ Such accommodation could consist

of transfer to a job not having contact

with the material, or provision of

special protective gear. Where no

on-the-job accommodation is possible, a

temporary leave with retention of

benefits might be called for.

This concept has a precedent in the

OSHA lead regulations which provide

that an employee who desires advice

“regarding lead exposure and the

ability to procreate a healthy child"

has a right to a medical examination,

and state that the examining doctor can

"tailor special protective procedures

to the needs of individual employees,"

including special needs of pyegnant

employees. 29 C.F.R. § 1910.1025 app.

C pp. 179, 182,(1989).

-5l-

between the sexes would be furthered,

as women would be able to participate

in the workplace equally with men.

CONCLUSION

The Johnson Controls policy at

issue in this case, and policies like

it, are harmful to the states’ interest

in the economic well-being of women and

children. Sex discrimination,

particularly on this scale, undermines

women’s econemic ana social status and

contributes to a gender-strat ified

workforce. Broad exclusions of women

from jobs they need also harm the

states’ interest in workplace health by

failing to protect men’s reproductive

systems, and by eliminating employer

incentives to remove hazards from the

job site.

-52-

It contravenes the goals of Title

VII for employers to exclude fertile

women from jobs they are able to

perform. And contrary to Johnson

Controls’ contention, its "fetal

protection" policy is not justified

under the BFOQ defense. Nor does the

policy promote public health. At the

very least, summary judgment should not

have been granted for the defendant on

this record. Amici states therefore

urge this Court to reverse the judgment

of the court below and either remand

for further proceedings or direct the

entry of a judgment for the petitioners.

Respectfully submitted,

JAMES M. SHANNON,

ATTORNEY GENERAL

-53-

JENNIFER WRIGGINS

MARJORIE HEINS*

JUDITH E. BEALS |

ASSISTANT ATTORNEYS GENERAL

Attorneys for Amicus Curiae

Commonwealth of Massachusetts OTHER COUNSEL FOR AMICI STATES

*Counsel of Record ROBERT K. CORBIN

Attorney General of Arizona

[Other Counsel Listed on Next Page]

CLARINE NARDI RIDDLE

Attorney General of

Date: May 31, 1990 Connecticut

CHARLES M. OBERLY, III

Attorney General of Delaware

ROBERT A. BUTTERWORTH

Attorney General of Florida

WILLIAM J. GUSTE, JR.

Attorney General of Louisiana

JAMES E. TIERNEY

Attorney General of Maine

FRANK J. KELLEY

Attorney General of Michigan

HUBERT H. HUMPHREY, III

Attorney General of Minnesota

ROBERT M. SPIRE

Attorney General of Nebraska

ROBERT J. DEL TUFO

Attorney General of New Jersey

ROBERT ABRAMS

Attorney General of New York

(Continued next page)

-54-

‘THER COUNSEL FOR AMICI STATES (ctd.)

ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

ROBERT H. HENRY

Attorney General of Oklahoma

HECTOR RIVERA-CRUZ

Attorney General of

Puerto Rico

JIM MATTOX

Attorney General of Texas

JEFFREY L. AMESTOY

Attorney General of Vermont

GODFREY R. DE CASTRO

Attorney General of

the Virgin Islands

KENNETH 0. EIKENBERRY

Attorney General of Washington

ee