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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0705%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 187

## Text

we

—a

uo. 90-1215 }\ JUN

—_

=
=-_

|

CLERK

Tet Sees er “4
vy peestete cd LOU t U.S,

- Wha be LED

F. APANIOL, JR

—

0) 989

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 work2/

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0705%3A17. Public record. Not legal advice.