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

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“No.f 1s

————_— i

IN THE

Supreme Court of the United Statere F. SPANO a.

OCTOBER TERM, 1989

— 7

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND

—-AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, et al.,

Petitioners,

—VvV.—

JOHNSON CONTROLS, INC., Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF AMICI CURIAE IN SUPPORT OF PETITIONERS BY

AMERICAN CIVIL LIBERTIES UNION and the AMERICAN

CIVIL LIBERTIES UNION-WISCONSIN; AMALGAMATED

CLOTHING AND TEXTILE WORKERS UNION: AMERICAN

ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN FED-

ERATION OF STATE, COUNTY AND MUNICIPAL EMPLOY-

EES, AFL-CIO; AMERICAN FRIENDS SERVICE COMMITTEE;

ASIAN IMMIGRANT WOMEN ADVOCATES; BOSTON WOM-

EN’S HEALTH BOOK COLLECTIVE; CENTER FOR CONSTI-

TUTIONAL RIGHTS; CENTRAL NEW YORK COUNCIL ON

OCCUPATIONAL SAFETY AND HEALTH; COAL EMPLOY-

MENT PROJECT; COALITION OF LABOR UNION WOMEN;

(continues on inside cover)

MARLA HASSNER JOAN E. BERTIN

30 Rockefeller Plaza (Counsel of Record)

New York, New York 10112 ELISABETH A. WERBY

Of Counsel JACQUELINE A. BERRIEN

ISABELLE KATZ PINZLER

KARY L. Moss

AMERICAN CIviL LIBERTIES

"" YON FOUNDATION

13. °t 43rd Street

New \. "k, New York 10036

(212) 944-9800

Attorneys for Amici Curiae

SR sssssssssssssssnnsaamsmsssssss

(ys

CENTER; INTERNATIONAL CHEMICAL WORKERS UNION,

AFL-CIO; MAINE LABOR GROUP OT: HEALTH; MASSA-

WOMEN’S HEALTH NETWOR:.; NATIONAL WOMEN’S POLIT.

ICAL CAUCUS; NEW YORK COALITION ON OCCUPATIONAL

SAFETY AND HEALTH; NONTRADITIONAL EMPLOYMENT

FOR WOMEN; NORTH CAROLINA OCCUPATIONAL SAFETY

AND HEALTH PROJECT; NORTHWEST WOMEN’S LAW CEN-

TER; OCCUPATIONAL SAFETY AND HEALTH LAW CENTER;

OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL

TOXICS COALITION; UNITED MINE WORKERS OF AMERICA;

WESTERN NEW YORK COUNCIL ON OCCUPATIONAL

SAFETY AND HEALTH: WIDER OPPORTUNITIES FOR

WOMEN; WOMEN’S ECONOMIC AGENDA PROJECT; WOMEN

EMPLOYED; WOMEN’S LAW PROJECT; WORKSAFE FOR

HEALTHY COMMUNITIES; and 18 Individual Workers (VICKY

BUTTICE; CYNTHIA GARZA; PAT GRANT; ALVA LEWIS;

JEANNE PATTERSON; BETTY RIGGS;

10 JANE DOES and 2 JOHN DOES).

2) 2) N

Page

TABLE OF AUTHORITIES ........ .iii

INTEREST OF AMICI CURIAE ........1

SUMMARY OF ARGUMENT. ......... 22

ARGUMENT

~~~ SC. 606 «6 © » » & « « « « ef

z. The Objectives Congress Sought To

Achieve When It Adopted And

Amended Title VII Are Directly

Threatened By Policies Such As

Johnson Controls' ........12

A. Women's Employment Is

Critical To The Welfare

ewe PUEEWs 6 6c co tw tl lel e 26

B. By Assuring Equal Employment

Opportunities, Congress

Intended To Improve The

Health And Well-Being Of

Women And Their Families .. 26

Cc. Congress Sought To Eliminate

Stereotypes That Limited

Women's Employment

CE ee |

D. Congress Intended To Enable

Women To Combine Employment

And Family Life. ...... 41

II. The Plain Language Of Title VII

Clearly Reflects Congress’

Objectives To Prohibit Policies

Like Johnson Controls'. ..... 44

A. The Statutory Mandate is

Unambiguous

and Must Be Enforced.. ... 44

B. The Possibility That Employer

Costs Will Increase As A

Result of Women's Employ-

ment Does Not Affect the

Statutory Mandate Against

Discrimination. ...... 50

Cc. The Court Below And Other

Courts Of Appeals Have Failed

To Implement Title VII As

Congress Intended ..... 57

COMCIMSICGN «s+ cece eeveee

ofie

Cases

American Textile Manufacturers

institute y. Donovan, 452 U.S. 4

(1981) . . 7 . . . ° . .

ari ; , itt -e is,

463 U.S. 1073 (1983) ..... .

California Federal Savings and Loan

Association Y. Guerra, 479 U.S.

272

Co yee are B

Clev fe) u j Vv.

LaFleur, 414 U.S. 632 (1974) .

47,

connecticut y. Teal. 457 U.S. 440

(1982) ... eee ee te

onsumers Safety Commission

Vv. GTZ Svivania, 447 U.S. 102

(1980) . a — . _ _ _ . . > .

Dothard v vans linson, 433 U.S. 321

Co ar Re Te a ae ee 45,

Geduldig Vv. Asie, 417 U.S. 484

Co ar Renata cece

General Electric Co. v. Secretary of

Labor, 576 F.2d 558 (3rd Cir. 1978).

Gilbert v. General Electric Co.,

429 U.S. 125 (1976). . «

-iii-

12,

Page

Grant v. General Motors,

(6th Cir., No. 89-3478). ....... 21

8: Pe ee

Hayes v. Shelby Mem. Hosp., 726

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

. _ . . > . . >. > 22, 54, S7. 59, 61, 63

N.Y.S.2d 814 (N.Y. App. 1984). ... . 56

Jones, et al. v. Sears and Roebuck,

No. 585-427 (Cal. Super. Ct., San

Diego County May 17, 1987),

appeal filed No. D009904 (Cal. Ct.

App., 4th App. Dist., Div. 1, filed

Apr. 10, 1990) . > o _ . 7. - J >. oe . >. 55

Los Angeles Dep' t of Water and

Power v. manhart, 435 U.S. 702

(1978) .. > © 6 os Sto Bi, 62, 63

Nashville Gas Co. v. Satty, 434 U.S.

OR Ee rae a eee - 46

Needham v. White Laboratories, 847

F.2d 355 (7th Cir. Bees © 0¢ 6 6 « 56

Newport News Shipbuilding & Dry Dock

Co. v. EEOC, 462 U.S. 669 ¢) >) re +

Vv i j orp.,

400 U.S. 542 is &. &« » « »«.-« 12, 46

W se v Ss

oF __, 109 §.Ct. 1775 (1989) .. 12, 61

-iv-

Texas Dep't of Community Affairs v.

Burdine, 450 U.S. 248 (1981) ... .. 59

Trans World Airlines v. Thurston, 469

U.S. 111 (1985)... . oe

TVA v. Hill, 437 U.S. 153 (1978) . . ..49

wade y.—Johnsen Controls, 693 F.2d 19

(2a Cir. 1982)... ne ge 5 ee

Ww Vv i Vv. onio,

490 U.S. , 109 S.Ct. 2115

(1989) * . * > . _ >. . . *. . . — . 59, 60

W , well, 472

- ee 9. eee

Wri Vv i Orp. 697 F.2d 1172

(4tR Cir. 1982). ..+-e«- 21, S59, 60, 61

Zuniga v. Kleberg County Hospital,

692 F.2d 986 (5th Cir. 1982) ..... 22

Statutes and Regulations

Final Standard for Occupational

Exposure to Lead, 29 C.F.R. §1910.1025

eo ren ae | |

Occupational Safety and Health Act, 29

U.S.C. §651, @& gag. .« «© © © « « « 10, 82

Pregnancy Discrimination Act, 42 U.S.C.

S200GO(R) « «2 oe ew eo ec te oe oe ol te PSRBIB

Title VII of the Civil Rights Act of

1964, 42 U.S.C. §2000e, et seq., as

amended oe oe oe ee we ew ew 8 ew PROS

-V=

Legislative Materials

123 Cong. Rec. 29658 (2977). «© « oc « $3

124 Cong. Rec. 21442 [SRTeds «& «© co co e 48

124 Cong. Rec. 21440 (1978) ..... 42

Struggle to Survive: Hearing Before

, 100th Cong., 2d

Sess. (1988) ....., > 6 = =» Ges Be, 39

Comm. on Education and Labor, A Report

on the EEOC, Title VII and Workplace

Fetal Protection Policies in the 1980s,

101st Cong., 2d Sess. (Comm. Print |

sites en en va

Comm. on Labor and Human Resources,

Legislative History of the Pregnancy

Discrimination Act of 1978, 96th Cong.,

2d Sess. (Comm. Print. 1979) . . . passim

Di Ipiness the Basis of

Before the Subcomm. on Labor of the

, 95th

Cong., lst Sess. wee wate oo st 34

Estimating the Effects of Economic

Change on National Health and Social

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

2d Sess. (1984). 26

ayia

Pepper Commission Documentation of

Findings, Prepared for Bipartisan

Commission on Comprehensive Health

Care (Nov. 13, 1989, unpublished). . . 29

Cong., 1st Sess., (1983) . .. 17, 30, 31

ece ends,

1989, H.R. Rep. No. 356, 101st Cong.,

lst Sess. (1989) ........... 19

W ica: or

Families: Hearing Before the House

i ou And

Families, 99th Cong., 2d Sess.

a + + +e + + +e ee 6 eee « 2

-vii-

Miscellaneous

Adolescent Pregnancy Prevention:

Prenatal Care Campaign, Children's

Defense pie in Pry

The Health of

America's Children: Maternal

and child Health Data Book (1989)

; « « Sa 28, 38

Becker, t

Vulnerability Policies, 53 U.Chi.

L.Rev. 1219 (1986) . .. . 21, 22, 55, 60

Binsacca et al., Factors Associated

with Low Birth Weight in an Inner City

Population: The Role of Financial

Problems, 77 Am. J. Pub. Health 505

fo, Pee ee ae ee ao,

Bureau of National Affairs, Pregnancy

and Employment: The Complete Handbook

on Discrimination, Maternity Leave and

Health and Safety 66 (1987). .... . 23

Children's Defense Fund, "The Unmaking

of Decent Family Income" in A Vision

[eee 6 4 6 8 8 6 eS oe 6d Ss OE

Department of Human Services, State

of Maine, Children's Deaths in Maine,

1976-1980 (Final Report) (1983)... . 29

2 M. Dixon and F. Woodside, Drug

Product Liability (1989) ....... 56

Egbuono and Starfield,

and Social status, 69 Pediatrics

Ge ume cater rccen enue

-viii-

R. Gold, Abortion and Women's Health,

A Turning Point For America (1990) .

Gold, et al., Health Insurance Loss

Among the Unemployed: Extent of the

» we CO

Public Health Policy 44 (1987) .. .

Kamerman and Xahn, "Employers'

Response to Their Employees" in The

Responsive Workplace: Employers and

a_ Changing Labor Force 60 (1987) . .

Mahaffey, et al., National

. . ; e

76- , 307 New Eng. J. of

Med. 573 (1982) . . . . . . . + . . .

"Median Annual Income of Families

by Family Type, Race and Hispanic

Origin, 1987," in The American

Woman 1990-91, A Status Report

362 (S.Rix ed. 1990) . . +. ++ «ss

Moore, et al., The Perinatal and_

Ecouomic Impact of Prenatal Care in_

a_Low Socioeconomic Population apaaede

(unpublished manuscript) . .

National Academy of Sciences,

National Research Council, Women's

Work, Men's Work, Sex Segregation

on the Job (B. Reskin, H. Hartmann,

eds.) (1986) . «. - «© «© «© «© © © «© « »

Paul, et. al., Corporate Response to

e j a ds Workplace:

Reproductive Hazards in the Workplace:

Results of the Family, Work and Health

Survey, 16 Am. J. Occ. Med. 267

|. ae ae

olive

1S. Pegalis and H. Wachsman,

Sead , . Medical Mal £3

(1980) . . . . . . . ° o . . . . + 7. . 56

Physician Task Force on Hunger in

America, "Malnutrition, Ill-Health,

and Hunger" in n Hunger_in America

(1985) ... 2 «© « ef, 87, 29, 33

Public Health Service, U.S. Department

of Health and Human Services, No.

182, Advance Data, Contraceptive Use

in the United States, 1973-88 (March

20, 1990). . . - . . . 7: > . . . . . . 38

P. Roos, Gender and Work: A

UL Sl re, |

Scott, "Keeping Women in Their Place,"

in Double Exposure 180 (Chavkin,

ed. 1984). . . . . . . . . ad ad * . 21

Smith, "The Paradox of Women's Poverty:

Wage Earning Women and Economic

Transformation," Women and Poverty 122

(C. Gelpi, et as.. eds. 1986)... . 20

Starfield, Family Income, Il] Health,

i J.

of Public Health Policy 245, (1982). - 29

U.S. Department of Commerce, Bureau

of the Census,

Statistical Abstract

of the United States (1987) ..... 37

U.S. Department of Labor, Office of

the Secretary, Women's Bureau, Facts

on Women MOKEAER» Fact Sheet No. 88-2

[S90G) «© «© ¢ cervetvevsnses SB

-xX-

INTEREST OF AMICI CURIAE

This brief amici curiae is submitted

pursuant to Rule 37.3 of the Rules of this

Court and is filed in si» °r: of

Petitioners.+/

Amici are organizations and

individuals concegned about the pervasive

policies of employers such as Johnson

Controls. Such policies assume that

fertile women are always potentially

pregnant, require women to be sterilized to

qu lify for employment, and deny fertile

the name of fetal health. Amici are

knowledgeable about the nature and extent

of such policies and the respects in which

they actually undermine the health of

women, children and men. Some amici join

i/ Letters of consent of the parties are

being filed with the Clerk of the Court pursuant to

Rule 37.3 of the Rules of this Court.

-l-

this brief to describe how policies like

the one at issue here have affected them

and their families.2/

SUMMARY OF ARGUMENT

Title VII of the Civil Rights Act of

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

("Title VII") was intended to eradicate

employment discrimination based on sex,

including pregnancy. 42 U.S.C. §2000e(k).

Congress' actions were based, in large

part, on a recognition that unemployment

and occupational segregation have serious

consequences for wong and families,

especially children. As a result, Congress

intended to strike at the "full range" of

such practices. (Point I)

2/ Attached as an appendix to this brief are

statements of interest for the amici. Sane of the

individual amici have requested anonymity to

protect their privacy and because they fear

reprisal by their employers. They are identified

as Jane Does 1-10 and John Does 1 and 2.

-2-

The facts upon which Congress relied

remain true today. Specifically, Congress

recognize’ that women's employment is

critical to the welfare of families (Point

IA) that serious health consequences are

associated with denial of employment

opportunities (Point IB), and that

stereotypes about women limit those

opportunities. (Point IC) Congress

concluded that it was essential to make the

right to work compatible with the right to

have a family. (Point ID)

Congress thus expressed the commitment

to full employment rights in unequivocal

language. (Point IIA). The limited

exception to the statutory mandate does not

apply here. In particular, costs of

employing women or improving working

conditions do not justify a policy that

excludes women from employment

opportunities. (Point IIB) The lower it “likely the most important sex

a aie

courts that have attempted to craft new discrimination case in any court

approaches to the statute's requirement since...Congress enacted Title VII" and

have impermissibly distorted the statutory predicted that the decision, unless

Se ee ee wee Eee ef

scheme. (Point IIC) Enforcement of Title reversed, could limit women's access to as

VII will return occupational health and many as "26 million industrial jobs."

International Union, UAW v. Johnson

Controls, Appendix to the Petition For

safety determinations to federal regulatory

authorities, whose efforts to improve

workplace conditions have been undermined Certiorari (hereinafter "Pet. App.") at 99a

by the opinion of the court below. and 100a.

ARGUMENT - This is no exaggeration. In a variety

Introduction ~ tm. of forms, these policies are already

This case presents the question of ‘“ | pervasive; they are most pronounced in

whether Title VII prohibits an employment | industries historically closed to women,

practice that restricts oppértunities for where high wages and good benefits make

women who are willing and able to work jobs particularly attractive to unskilled

because of the chance that they may become | workers with few other options.3/ For many

pregnant and that a workplace hazard may

harm the fetus. Judge Easterbrook,

dissenting in the court below, considered the Family, Work and Health Survey, 1 Am. J. Occ.

Med. 267 (1989) reporting a higher "lias. ..)

-4- 7 -5-

women and men, such employment offers the

only alternative to poverty.

The court of appeals' characterization

that women take these jobs "to better the

family's station in life," Pet. App. at

Sla, understates the significance of this

kind of employment to the well-being of

women and their families. The stories of

women and men affected by these

discriminatory policies offer an insight

into the reality of life outside the

courtroom walls and graphically illustrate

the profound personal and economic effects

of policies requiring women to choose

between their jobs and their fertility.

af (...continued)

discriminatory policies in male intensive

industries. See generally, Committee on Education

and Labor, A Report on the EEOC, Title VII and

Workplace Fetal Protection Policies in the 1980s

101st Cong., 2d Sess. (Comm. Print 1990)

(hereinafter "House Committee Report") .

-6-

Most of these women are deeply

concerned about the health and well-being

of their families. These are not women who

"might somehow rationally discount" the

risks of work and selfishly sacrifice the

health of their children for mere

"financial reward." Pet. App. at 5la and

2la. They work because they must, at the

best jobs they can get.

[When] I began working in the foundry

of an automobile plant. . . I had one

small child and when my husband and I

separated, I needed to find a job with

good salary and benefits. The plant

was the only place in the area that

offered both. ... If I lost my job

I would never find anythirg comparable

to what I now have. A woman who is in

her late thirties as I am would

probably only be able to get a job as

a sales clerk in the shopping mall or

as a waitress in a fast food

restaurant. (A-71-72)

x *

4/ References are to Appendix pages at which

individual Statements of Interest are set forth.

-Jo

[After] I quit school in the 10th

grade. . . I worked for five years as

a sales clerk. .. [at] minimum wage.

- « + (When) I heard that they were

hiring women at [the] plant I applied

for the job because it offered a much

better salary and better benefits.

A-65-66

x ke

I am the major supporter of my family.

My husband is presently laid off from

his job. My family depends on my

salary and benefits, and it would be

disastrous for us if I lost my job

before my husband is called back to

work. A-74

Their counterparts are men who are

plagued by concerns about the effects of

workplace hazards on themselves and their

future children.

In 1978 or 1979 [my brother] was

tested and had a very high blood lead

level. In 1980 or 1981 he collapsed

on the job melting ore (iron) in the

melting area. . .. [He] was forty

four years old when he had the heart

attack, and. . . I strongly believe

[it] may very well have been caused by

the many years he spent working in the

x ke

I have worked in the automotive

industry for twenty-five years...

Only three of my five children are

alive. . . . I am convinced that my

exposure to hazardous substances in

the workplace was the cause of the two

deaths and possibly the premature

birth of [my] twins. ... A-63

Both men and women have little

information and fewer choices.

You might say that we're sort of

caught between a rock and a hard

place. Some men prefer to ignore the

health issue and just gamble that they

or their children won't get sick.

A-65

x *& &

I decided to have the steriiization

because I needed to keep my job. .

I knew that my husband and I were

going to separate, and that I would

have to support myself and my son. In

addition, I had always helped my

parents who were elderly and infirm.

- - I was 26 years old when I

was sterilized. A-52-53

Johnson Controls has elected to

disregard the risks of lead to male workers

high lead melting area and nearby and to "protect" women by denying them jobs

areas. A-46

instead of improving workplace

-8- -9-

conditions.2/ In validating this approach,

the decision below is inconsistent with the

conclusions of federal health authorities

that men and women require an equivalent

degree of workplace protection to safeguard

their own health and that of future

generations. It also conflicts with

regulations adopted pursuant to the

Cccupational Safety and Health Act, 29

U.S.C. §651, et seq. ("OSH Act") that

require employers to protect both men and

women planning families at the level of

3/ Johnson Controls' j

ea assertion that hazardous

conditions cannot be improved is palpably untrue,

as federal regulators and public health experts

have found. See Brief amici curiae of the American

oo Health Ass'n, et al. ("APHA Brief"). if

ohnson Controls could not comply with occupational

health standards, it would be required to apply to

the Secretary of Labor for a variance. 29 U.S.c.

§655(6) (A). See also General Electric Co. v.

Secretary of Labor, 576 F.2d 558 (3d Cir. 1978).

-10-

exposure at which Johnson Controls excludes

women. &/

The lower court assumed that women will

make inappropriate decisions about work and

childbearing; it would defer to "an

employer {who] adopts an employment policy

designed to address a difficult societal

problem," Pet. App. at 49a, even though

that policy offers neither workplace safety

for men nor equity for women. The court

thus ignored not only the Congressional

mandate expressed in OSHA, but also the

conclusions Congress reached in enacting

and amending Title VII, that unemployment

and underemployment pose serious risks for

women and their families, and that women

§/ Final Standard for Occupational Exposure

to Lead, 29 C.F.R. §1910.1025 (1989). OSHA's Lead

Standard and subsequent regulatory actions

regarding lead are discussed extensiv>ly in the

APHA Brief.

-li-

cannot be forced to forego childbearing in

order to work.

I. The Objectives Congress Sought To

Achieve When It Adopted And Amended

Title VII Are Directly Threatened By

Policies Such As Johnson Controls’

Title VII prohibits intentional sex

discrimination in employment unless sex is

a bona fide occupational qualification

("BFOQ"). 42 U.S.C. §2000e-2(e) (1).

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

542 (1971). Cf. Price Waterhouse v.

Hopkins, _U.S. __, 109 S.Ct. 1775 (1989)

(mixed mctive case). In response to

Gilbert v. General Electric, 429 U.S. 677

(1976), holding that pregnancy-based

discrimination was not per se gender-based

discrimination within the meaning of Title

VII, Congress enacted the Pregnancy

Discrimination Act ("PDA") "to make plain

that, under Title VII.

discrimination

-12-

hased on pregnancy, childbirth and related

medical conditions is discrimination based

on sex. Thus, the bill defines sex

discrimination, as proscribed in the

existing statute, to include these

physiological occurrences peculiar to

womenl.)"2/ The PDA further "“illustrate([s]

how discrimination against pregnancy is to

be remedied."8/ Women, whether or not

pregnant, are entitled to employment

opportunities based solely on the “ability

or inability to work." 42 U.S.C.

§2000e(k).

Because women are as capable of

producing batteries as men are, the plain

V/ Comm. on Labor and Human Resources, .

Legislative History of the Pregnancy Discrimination

Act of 1978, 96th Cong., 2d Sess. 40-41 (Comm. .

Print. i979) (hereinafter "Legis. Hist.") (emphasis

supplied).

8/ C lif ° F j ] S vi i I

Association v. Guerra, 479 U.S. 272, 285 (1987).

(hereinafter "Cal Fed")

-13<

language of Title VII, as amended by the

PDA, clearly prohibits Johnson Controls'

policy, regardless of whether that policy

is construed as discriminating against all

women or potentially pregnant women. 2/ As

the extensive legislative reccrd underlying

the PDA reveals, Title VII was intended to

redress "the full range of discriminatory

practices which have adversely affected

(women's) status in the work force. "10/

In particular, Congress recognized

that women's employment is critical to the

welfare of women and families, that denial

of access to employment opportunities

9/ The court below concluded that

; the c

did not apply to all women, but affected only thoxe

capable of bearing children. E.g., Pet. App. at

43a. The terms of the policy, however, draw

explicit gender based lines. All women (but no

men) , for example are required to submit medical

evidence of sterility as a condition of employment.

10/ legis. Hist

. -, Supra note 7 at 63.

(emphasis supplied).

-14-

results in a lower standard of living with

devastating consequences, and that sex~-

based stereotypes limit women's employment

opportunities. In consideration of both

the equity of women's claim to equal

employment opportunity and the practical

necessity of work for many women, Congress

expressly endorsed the proposition that no

woman should have to sacrifice the right to

work in order to have a family, nor

sacrifice the right to have a family in

order to work.

As demonstrated below, policies like

Johnson Controls' directly threaten the

principal goals to be achieved by Title

VII's prohibitions on sex discrimination.

A construction of the statu.e permitting

such policies would frustrate its very

purposes.

-15-

A. Women's Employment Is Critical To

The Welfare Of The Family.

Policies that deny women employmenc

reflect an assumption that women can forego

employment without serious consequences,

but the facts are otherwise. In both

Single parent and dual wage earner

households, women's employment is critical

to the maintenance of many families, and

the loss or reduction of a woman's income

will have devastating effects, as Congress

acknowledged:

In many low-income families the

financial support provided by the

mother has become essential for the

families' economic survival. . :

In an increasing number of middle-

income families the support and the

well being of the family has become

inextricably tied to the income

generated by females.

1l/ tegis. Hist., supra note 7 at 127.

-16-

In dual wage earner families, full-

time working wives contribute an average of

37.6% of the family income, and the poorer

the family, the more critical the wife's

contribution. In families in which the

total income is less than $15,000, that

contribution averages more than half.12/

In 1984, for example, poverty was 35% lower

than it would have been had wives not

worked. 23/

(1983) (Statement of Diana Pearce) (hereinafter

"Supporting A Family"). Among black couples, the

median family income of those families with a wife

in the paid labor force was nearly double that of

ee ee cee ae eee and

cs, it was nearly 7

gees eterno

— Race and ~~ we neon ng 1987," in

i ~ Seth Cam. od fans.

4 (1986) (Opening Statement of George Miller)

(hereinafter "Work in America").

-17-

A significant number of women are

primary or sole wage earners.

Approximately 45% of women in the labor

force are single, separated, divorced or

widowed.14/ Many of these women have

families and many are poor.42/ Another 153

of women in the labor force are married to

men earning less than $15,000 a year.16/

14/ Women's Bureau, Office of the

U.S. Dept. of Labor, Fact Sheet No. 88-2, Facts on

Women =. (1988) (hereinafter "Facts on

12/ Nearly half of all female headed

households (including both working and non-working

mothers) were in in 1987, and most of these

te eS a ee U.S. Children and

> urrent Conc ions ReCe

Trends. 1989, H.R. No. 356, Cong

Sess. 110-11 i _Jotst a and al

Families") . Female headed households represent an

increasing share of all families in (51.4%

in 1986 as compared to 45.7% in 1982). Children

-18-

In recognition of the fact that women

were in the workforce because of "pressing

economic need" and required "protection for

their financial security and the security

of their families",+2/ congress was

particularly concerned about practices that

restricted women's access to lucrative and

desirable employment and froze them in the

status of marginal workers. Statistics on

the extent of wage disparity due to

occupational segregation reflect the

pervasiveness of such practices and

Congress found them "shocking" .28/ The

data reveal that the problem is

particularly acute for unskilled women who

are concentrated in low-paying, female

17/ legis. Hist., supra note 7 at 61.

18/ id.

-19-

intensive industries22/ and minimum wage

jobs. 29/

Access to non-traditional jobs is

therefore especially important to unskilled

women if they are to escape from poverty

and attain economic security for themselves

and their families. Title VII and other

civil rights measures brought these women

12/ ‘here is a clear inverse correlation

ian bon a

oyees jobs. in America, supra note

at 29, Table 4 (Statement of Janet Norwood). ~~

1981, the expected median wage in occupations

filled exclusively by women was less than half that

of the median in exclusively male occupations.

National Academy of Sciences, National Research

Council, Women's Work, Men's Work, Sex Segregation

on the Job (B. Reskin, H. Hartmann, eds.) 1, 10 (1986).

20/ smith, "The Paradox Poverty

’ of Women's :

Wage Earning Women and Economic Transformation,"

Pe 122, 137 (C. Gelpi, et al., eds

1986). Minimum wage now equals only about three-

quarters of federal poverty guidelines for a family

of three. Children's Defense Fund, "The Unmaking

of Decent Family Income" in A Vision for America's

— (1989) (hereinafter "Vision for America's

*¢@

-20-

;

the promise of such employment, 21/ but

policies like Johnson Controls' would close

the workplace doors once again. Indeed,

sex-based policies take their most extreme

and oppressive form in occupations

characterized by high wages, good benefits,

and entrenched gender-based segregation. 22/

Johnson Controls' policy, effectively

excluding women from all employment in its

battery plants, is typical of restrictions

in male dominated industries.23/ Thus,

21/ See, e.g., Becker, From Muller v. Oregon

ili icies, 53 U. Chi. L.Rev.

1219, 1239 (1986).

22/ Id. See note 3, supra.

23/ For example, the policy adopted by the

Olin Corporation in 1978 excluded fertile women

from five of eleven lines of progression in one

division and some jobs elsewhere. Wright v. Olin,

697 F.2d 1172, 1182 (4th Cir. 1982). -General

Motors' "fetal protection" policy "virtually

forecloses the employment of women altogether" at

its battery plants. Scott, "Keeping Women in Their

Place," in Double Exposure 180, 181 (Chavkin, ed.

1984). And see Grant v. General Motors, appeal

(contirued. . .)

-21-

women are now subject to exclusion from the

very jobs and occupations that Congress

specifically identified as critical to

their economic well being and that of their

families.

)

Gender-based policies are less extreme

and less common in other occupations, but

occur there too, with the effect of denying

women employment security and continuity of

wages. 24/ Tuese examples reveal that if a

23/ (...continued)

filed (6th Cir. No. 89-3478). Rules barring

fertile women from various jobs have reportedly

been adopted by Monsanto, B.F. Goodrich, Uniwn

Carbide, American Cyanamid, St. Joe's Minerals

Bunker Hill Smelter, Gulf Oil and others. Becker,

Supra note 21 at 1226-27; House Committee Report,

Supra note 3 at 6.

24/ For example, both Hayes v. Shelby

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

i , 692 F.2d 986

( rt Cir. 1982) involved x-ray technicians who were

fired when they became pregnant even though both

were well within universally accepted safety limits

for pregnant women. AT&T has barred pregnant women

from jobs at computer chip processing plants

because of unconfirmed reports of reproductive

(continued. . . )

-22-

woman's employment can be limited because

she could become pregnant and her employer

perceives some risk, the reach of such

es: | ' f National Affairs.

health hazards. Burem e » Sendieocic on

Discrimination. t .

-23-

policies is virtually unlimited. 25/ Judge

Easterbrook commented:

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

25/ Employers do, in fact, exclude women from

work based on their own assessment of risk and

the face of medical opinion to the contrary. “

[When] my supervisor learned that I was

pregnant, she told me I would have to stop

working.... (E]ven with my doctor's

authorization, I was laid off. . .. These

last six months have been hard for us. . —

(W]e cannot make ends meet ev =

| sly ery month. A

(W)hen the personnel director learned that I

was pregnant, I was told that I couldn't

stay on the job. I wasn't given any reason,

and even my doctor said that I could

continue working. The personnel director

informed me that if I had wanted to keep my

job then I shouldn't have gotten pregnant. .

- I was told that the only way I could get

my Job back would be to lose the baby. I

Se Week cae cnn Se eke Ge Ent.

on. was e to do anything and

doctor refused to sign the papers for ~

disability because he said I could still

work. A few days (after this] I miscarried

the pregnancy. A-40-41.

-24-

}

companies can refuse to hire

women? That an employer could

forbid pregnant employees to

drive cars because of the risks

accidents pose to fetuses? For

all we can tell, Johnson's

argument compels us to answer

"yes" to these questions.

Pet. App. at 92a.

Congressional disapproval of all these

results - denial of employment, mandatory

pregnancy leave, or other limitations -

could not be clearer:

In some of these cases, the employer

refused to consider women for

particular types of jobs on the

grounds that they might become

pregnant. . . . A common practice has

been to place women on mandatory

unpaid leave, regardless of their

ability or inability to work. In some

cases, women discriminated against are

permitted to return to their former

employment after delivery; but in

other cases mandatory leave results in

loss of previous position, lower pay

and loss of employment security. In

the extreme case, women who have

become pregnant are simply terminated

by their employers.

26/ Legis. Hist., supra note 7 at 61-62. See

A-48, A-68, and A-58.

-25-

B. By Assuring Equal Employment

Opportunities, Congress Intended

To Improve The Health And Well

Being Of Women And Their

Families.

Testimony before Congress during the

hearings on the PDA documented the link

between all types cf discriminatory

employment practices and the health and

well being of women and their families.

Congress recognized that when women are

denied access to good jobs and adequate

benefits, their tamilies -- especially the

children 2// -- suffer the consequences.

The loss of a mother's salary will

have a serious effect on the family

unit, making it difficult for parents

27/ The risk, of course, extends to adults as

well. Unemployed workers who are unable to provide

for their families face heightened risk of disease

poverty, and malnutrition. Physician Task Force on

Hunger in America, "Malnutrition, Ill-Health, and

Hunger" in Hunger in America (1985) at 128-29

(hereinafter "Hunger in America") See, Estimating

the Effects of Economic Change on National Health

and Social Well-Being, S. Doc. No. 198, 98th Cong.

2d Sess. (1984).

-26-

to provide their children with proper

nutrition and health care. For some

women and their families, it will mean

dissipating family savings and

security, or being forced to go on

welfare. 28/

Income is inversely related to

nutritional deficiency in children, 22/

and both are linked with a host of negative

health effects including delayed growth,

weakened resistance to infection and

increased vulnerability to environmental

28/ Legis. Hist., supra note 7 at 3

(statement of Senator Williams). This is no

hyperbole:

When I began earning more money [at the

factory] I took out a personal loan to help

me get ahead on some of my other bills. I

was not rehired [after a layoff and because

of pregnancy]. The factory also

discontinued my insurance coverage. .. .

Since March of 1989, I have had no income,

no insurance and am currently receiving

AFDC. A-60.

22/ Hunger in America, supra note 27 at 115.

-27-

toxins. 39/ Ironically, children from poor i adverse consequences from illness.22/ The

families are at particular risk of lead developmental hazards associated with

exposure, and black children face the i poverty and malnutrition may be exacerbated

greatest risk.31/ by school absences or other health-related

In general, there is a higher | curtailments of normal childhood

frequency of health problems among poor | activities. 23/

children. Poor children receive less Full access to employment

medical care than wealthier children; they opportunities is also significant to the

are more likely to suffer from medical health of women and their families because

illnesses and more likely to experience critical benefits such as medical insurance

are most commonly available in larger firms 34/

30/ Id. at 99, 116, 118-122; Ebuomu and -%

Starfield, Child Health and Social status, Health and Social Status, 69 . and in unionized, male dominated

Pediatrics 550 (1982).

31/ In 1980, the proportion of children with 32/ starfield, Family Income, Il] Health, and

blood leads in excess of 30 ug/dl in families with ' Medical Care of U.S. Children, 3 J. of Public

annual incomes less than $6,000 was nearly ten : Health Policy 245, 247 (1982). At every age level

times greater than the proportion in *amilies with and for every cause of death, poor children die at

incomes in excess of $15,000. For children in a higher rate than non-poor. Department of Human

families with incomes from $6,000 to $15,000, the

proportion was nearly rour to one. Lead from paint

in deteriorating housing and high air lead levels

in inner cities are the primary sources of

Childhood exposure. Controlling for all other

Services, State of Maine, Children's Deaths in

Maine, 1976-1980 (Final Report) (1983).

33/ Hunger In America, supra note 27 at 101.

Cy ee aye. es bE Ler

variables, it was found that black children have 34/ See, Pepper Commission Documentation of

higher blood lead levels than white children. : Findings, Prepared for Bipartisan Commission on

Mahaffey, et al., National Estimates of Blood Lead Comprehensive Health Care 7 (Nov. 13, 1989,

levels: United States, 1976-1980, 307 New Eng. J. unpub] ished) .

of Med. 573, 577 (1982).

-28- . -29-

occupations.32/ It is not surprising,

therefore, that among women of childbearing

age, those most likely to be uninsured are

either unemp]oyed or working in low wage

jobs .38/

Lack of adequate insurance has

specific negative health consequences.3//

The uninsured are more likely to delay

seeking medical care.38/ Many uninsured

children are treated only in response to an

immediate crisis and seldom receive

35/ Kamerman and Kahn, "Employers' Response

to Their Employees" in The Responsive Workplace:

Employers and a Changing Labor Force 60-61 (1987).

Data Book 48 (1989) (hereinafter "Health of

America's Children"). Black women are more likely

to be uninsured than their white counterparts. Id.

37/ See Supporting A Family, supra note 12 at

54.

Options, 8 J. of Public Health Policy 44, 54 (1987).

-30-

essential preventative pediatric

services.22/ This is also true in insured,

but low income families, since many

policies require significant employee

contributions,492/ have high deductibles

and/or exclude the cost of preventative

care.41/

Pregnant women's income and insurance

benefits bear directly on the likelihood of

good pregnancy and birth outcomes.

Congress specifically acknowledged the

39/ Supporting A Family, supra note 12 at 57.

40/ Family income is correlated not only with

presence of insurance coverage, but also with the

extent of employer contribution. Only 27.3% of the

children in poor but households were

covered by a plan fully subsidized by the employer

in 1986. Health of America's Children, supra note

6 at 45.

41/ See, A Vision For America's Children,

Supra note 20 at 9. The iminsured and inadequately

insured can, and do incur substantial out-of-pocket

health care expenses, sometimes exceeding 20% of

family income. Supporting A Family, supra note 12

at 56.

-31-

"concrete connection between loss of income

during pregnancy and a deterioration of the

health of the pregnant woman and her caild

which results from impaired access to a

healthful life situation."42/ Lack of

prenatal care and inadequate maternal

nutrition, both of which are correlated

with poverty, 43/ are also strongly

associated with low birth weight and

prematurity, the causes of most infant

morbidity and mortality in the United

States.44/

42/ legis. Hist., supra note 7 at 65.

43/ It has been demonstrated repeatedly that

financial constraints are the most significant

obstacle to attaining adequate prenatal care,

ica’ , Supra note 6 at 52,

and poverty is, of course, linked with nutritional

deficiencies.

44/ See, Binsacca, et al., Factors Associated

with Low Birth Weight I “ity Population:

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

Health 505 (1987). See also, Children and

Families, supra note 15 at 39. It has been found,

(continued...)

-32-

The cost effectiveness of prenatal

health care has been well documented, 42/

and this fact was repeatedly emphasized in

testimony presented to Congress by the

American Nurses Association in support of

44/ (...continued)

for example, that babies born to mothers who

received no care were:

(1) over six times more likely to be born

prematurely;

(2) over three times more likely to be

low birthweight;

(3) four times as likely to measure low

Apgar scores at birth; and

(4) two-and-a-half times more likely to

require intensive care. See Moore, et al., "The

Perinatal and Economic impact of Prenatal care in a

low socioeconomic population" (1985) (unpublished

manuscript) . a

Some of these outcomes have been spewifically

linked to inadequate maternal nutrition. See, e.g.

Hunger in America, supra note at 117.

45/ See, e.g. Children and Families supra

note 15 at 39 ("early, comprehensive prenatal

care. . . saves over $3 for each $1 invested.")

Regular pediatric care is also cost effective.

See, A Vision For America's Future, supra note 20

at 12 (Children receiving such care have annual

health care costs 10% lower than children not

receiving such care).

-33-

the PDA.48/ The evidence was a critical

element in Congress' assessment of the

overall costs associated with employment

discrimination against women. Responding

to employers' arguments that the PDA would

increase the costs of employing women,

Senator Williams, one of the sponsors of

the legislation, stated:

We must also consider the cost

which is imposed on society when

working women and their families

are denied adequate income for a

decent standard of living. This

cost is felt in terms of medical

complications for both the women

and their children ....42

Congress perceived that the threat to

women, their children and other dependents

was substantial, and that the price tag of

Cong., 1st Sess. "466 (1977) (Statement of American

Nurses' Association) .

47/ legis. Hist., supra note 7 at 65-66.

—-34-

discrimination was high. It concluded that

full access to employment was the necessary

and appropriate response. Johnson Controls

would have the Court reevaluate the

Congressional equation and find it invalid.

But striking this balance is a matter of

social policy, therefore a job for

Congress, not the courts. Moreover, the

conclusion reached by Congress twenty-five

years ago, and reaffirmed twelve years ago,

remains valid.

Cc. Congress Sought To Eliminate

Stereotypes That Limited Women's

Employment Opportunities.

Johnson Controls' policy assumes that

all women who are capable of becoming

pregnant will do so, indeed that they might

be pregnant at any moment. The policy

applies to all women, regardless of their

circumstances, their desire to become

pregnant, or the likelihood of

-35-

pregnancy. 48/ Even though most women do

become pregnant at some time in their

lives, it is the grossest form of

stereotyping to assume that every woman who

is capable of conceiving is always about to

do so. Once again, the policy at issue in

this case threatens a principal purpose of

Title VII: to eliminate decision-making

based on group characteristics, especially

when the result is to deny job

48/ AS noted above, the campany's policy, is

Similar to many others in its total disregard for

the individual factors relating to the likelihood

of pregnancy.

At this time (when the policy excluding

fertile women was introduced] I was

married and had no plans to have any

children. I thought that I would be

exempt from the policy because my

husband had a vasectomy. However, the

plant manager told me that even though

my husband had been sterilized, I could

still "screw around". A-37-38.

See also Arizona

greater costs of providing retirement

benefits for female employees does not

justify the use of a sex-based plan.")

Thus, even if women did require additional

protections from occupational exposures,

64/ Legis. Hist, Supra note 7 at 48.

-51-

Title VII would require that employers bear

the costs of making the workplace safe. &3/

Johnson Controls did not assert a

cost-based defense to this Title VII

action, presumably in recognition of the

Court's unambiguous holdings on the issue.

Nevertheless, the issue is addressed in the

opinions in the court below.

The costs of providing equal

employment opportunities in the face of

§3/ Congress , minimi

has sought to minimi

of employment for both working women pn ea

Be ean the Occupational Safety and Health Act 29

8.6. §651, et seg., which requires that health

protection be afforded at the "most protective"

level, Subject to constraints imposed by

technological and economic feasibility. American

Manufacturers Institute Donovan, 452

It is

-52-

ne Fe ie ee tO

;

recognized reproductive hazards might

include not only the cost of making the

workplace safe, but also the cost of

potential tort liability to children of

workers exposed to lead.£&6/ Judge Posner,

in dissent, was particularly concerned with

the second issue and suggested that such

liability might at some point "become large

enough to affect the company's normal mode

of operation and supply the ground for a

66/ In addition, both Judge Posner and the

majority expressed some concern about the costs to

society for caring for children who might be harmed

by women's occupational exposure. Indeed, despite

the lack of any documentation, the majority relied

on these potential costs to support its conclusion

that the policy was justified. Pet. App. at 5la.

This approach is legally insupportable and totally

inconsistent with Congress' conclusion that the

social cost of denying women equal employment

outweighed countervailing concerns. The majority

balanced the interests of "the employer, the

employee, and the unborn child," Pet. App. at 42a,

as if this were not a legislative function, and

more importantly, as if the balance had not already

been struck by Congress on the basis of careful

consideration and extensive evidence. See Point

I, Supra.

-53-

bona fide occupational qualification."

Pet. App at 68a. As noted above, this

approach lacks statutory or precedential

authority and indeed simply ignores the

PDA's command that women who are able to

work must be permitted to do so. .

There are, however, additional reasons

to reject the suggestion that the potential

for tort liability should constitute a

defense in Title VII cases:

In today's litigious society, the

potential for litigation rests in

almost every human activity....The

employer is, of course, free to

protect itself from financially

ruinous lawsuits by purchasing

insurance and maintaining the decree

of care required by law.

Hayes v. Shelby Mem. Hosp., 726 F.2d at

1553 n.15. For a responsible employer, the

risk of liability to children of female

workers is remote, as discussed below. In

any event, there is also a risk of

liability to children of male workers, as

-54<

well as to consumers and others. §&//

Johnson Controls and other employers with

similar policies undertake these risks as a

part of doing business. They have

presented no reason to suggest that any

liability-related concerns associated with

women's employment cannot be handled in

precisely the same manner.

Finally, permitting a defense based on

potential liability would undermine the

67/ Becker, supra note 21 at 1236-37, 1245.

(noting instances in which the children of male

workers assert paternally-mediated genetic injury).

Johnson Controls can cite no suits brought by

children of women workers exposed to lead. On the

other hand, there has been a tort suit brought by

male workers, their wives and children alleging

intentional injury or gross negligence. Wade v.

Johnson Controls, 693 F.2d 19 (2d Cir. 1982).

There has also been at least one significant

judgment against the company on the basis of

defective products. Jones, et al. v. Sears and

Roebuck, Inc., Globe Union, Inc., et. al., No. 585-

427 (Cal. Super. Ct., San Diego County, May 17,

1987), appeal filed No. DO09904 (Cal. Ct. App., 4th

App. Dist., Div. 1, riled Apr. 10, 1990) ($9.7

million jury verdict for plaintiffs injured by

exploding battery).

-55-

deterrence and safety-enhancing goals of

tort law. An employer who complies with

OSHA standards, implements available

technology to reduce exposures and

adequately warns employees of remaining but

unavoidable risks is not likely to be held

liable to subsequently born children on

either a negliyence or strict liability

theory. §8/ A cost-based defense would

88/ ‘See generally, 1 S. Pegalis and H.

Wachsman, ican Law of ctice at

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

Product Liability §11.02[{1] (1989); Hughson v. St.

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

(pregnant woman's consent to medical procedures is

binding on subsequently born child) ; Needham v.

White Laboratories, 847 F.2d 355 (7th Cir. 1988),

(adequate warning provided to pregnant women

sufficient to preclude "failure to warn" claim by

later born child). In the medical malpractice

context, the informed consent decisions are

premised on respect for personal autonomy and the

notion that competent adults should be permitted to

make reasoned risk assessments for themselves and

minor children (and fetuses). This approach is, of

course, Consistent with that taken by Congress in

Title VII, see, Point I, supra, and effectively

disposes of Judge Posner's concern about the

problem of irreducible risks. See Pet. App. at 66a

and 69a.

-56-

therefore eliminate any incentive created

by the tort system to make the workplace

safe, while gi.‘ng employers wholesale

license to exclude any class of workers

they deem, f~r whatever reason,

particularly vulnerable.

c. The Court Below And Other Courts

Of Appeals Have Failed To

Implement Title VII As Congress

Intended.

In its decision to permit a "business

necessity" defense, the court below

purported to follow two decisions rendered

by other circuits.§2/ Both of those cases,

however, represent significant departures

from the statutory scheme, as it has been

consistently interpreted by this Court.

In Wright v. Olin Corp.,

acknowledged that a sex-based policy of

the court

exclusion could not satisfy the BFOQ

62/ Wright v. Olin Corp. 697 F.2d 1172 and

Hayes v. Shelby Mem. Hosp., 726 F.2d 1543.

@-57-

standard, 697 F.2d at 1185-86, n.21, and

then rejected that analysis specifically to

permit a defense, predictably distorting

Title VII in the process. While it is

true, as that court notes, that a Title VII

plaintiff may advance different theories,

it is not correspondingly true that a

defendant may proffer any defense

regardless of the nature of the prima facie

case. Rather, the defense, to be availing,

must specifically match the gravamen of the

claim.

Claims and defenses in Title VII cases

can be generally grouped in three separate

tiers. At one level is the individual

disparate treatment case, in which

intentional discrimination is inferred from

differential treatment. Articulation of a

non-discriminatory reason provides a

defense to the prima facie case, which can

-58-

then be rebutted by proof that the

proffered explanation is a pretext for

discrimination.22/ Intent is irrelevant in

disparate impact cases, which focus on the

effects of discrimination, as shown by a

statistically significant effect of a

neutral policy on a protected group. The

employer must show that "the challenged

practice serves, in a significant way, the

legitimate employment goals of the

employer. "21/ Finally, overt facial

discrimination can only be justified by the

most. rigorous standard, BFOQ, and is

Burdine, 450 U.S. 248 (1981). The inapplicability

of this analysis to cases involving overt

discrimination is conceded in Wright and Hayes.

Cf. Trans World Airlines v. Thurston, 469 U.S. 111

(1985).

Zi/ Wards Cove Packing Co. v. Atonio, 490

U.S. __, 109 S.Ct. 2115 (1989) ("business

necessity" defense) .

-59°-

otherwise flatly prohibited. See p. 45

n. 60, supra.

A sex or pregnancy-based policy

cannot be deemed "neutral." Title VII has

been amended specifically to preclude that

construction. See Point IIA, supra.

Nevertheless, the Wright court applied the

lower level business necessity defense,

which was crafted for cases not involving

intentional or overt discrimination.

Congress clearly stated that where overt or

intentional discrimination is involved, the

challenged practice can be justified only

as a BFOQ. The approach adopted by the

Fourth Circuit is thus unauthorized,

illogical and, as a matter of law, must be

rejected. 22/

T2/ See also Becker, supra note 21 at 1251,

1260-63. This distinction between overt

discrimination and discrimination resulting from

neutral practices is not mere "semantic quibbling,"

(continued...)

-60-

The Hayes court embraced a different,

but related, error in its desire to permit

a defense. Ignoring the male and female

employee/parents who are the intended

beneficiaries of Title VII, that court

decided that a policy that protected their

offspring "neutrally," i.e.. provided the

same level of protection, was a “neutral

policy," justifiable by business necessity.

But, once again, Title VII unequivocally

rejects any contention that an overt

pregnancy or sex-based policy can be

72/ (...continued)

Wright, 697 F.2d at 1186, but has substantial

significance. Under Title VII, the employer has

always borne the burden of proof to justify a

demonstrably discriminatory policy. E.g., Dothard

v. Rawlinson, 433 U.S. 321. That rule has been

altered in cases involving disparate impact, but

not in those involving intentional discrimination.

Compare Wards Cove Packing Co. v. Atonio, 490 U.S.

__, 109 S.Ct. 2115 with Price-Waterhouse v.

Hopkins, __-U.S. ___, 109 S.Ct. 1775 (mixed

motive).

-6l1-

"neutral,"23/ regardless of its effect on

off-oring. By definition, it is not

neutral with respect to workers, who may

nor may not become parents, and it is their

rights Title VII protects.

The Supreme Court has unequivocally

rejected the notion that sex-based

classifications can somehow be justified

because of arguably "neutral" effects:

- - « the Department argues that the

absence of a discriminatory effect on

women as a class justifies an

employment practice which, on its

face, discriminated against individual

employees because of their sex. But

even if the Department's actuarial

evidence is sufficient to prevent

plaintiffs from establishing a prima

facie case on the theory that the

effect of the practice on women as a

class was discriminatory, that

evidence does not defeat the claim

that the practice, on its face,

discriminated against every individual

woman employed by the Department.

73/ It was precisely this fiction the PDA was

intended to eliminate. See Newport News

Shipbuilding & Dry Dock Co. v. EBOC, 462 U.S. 669.

(1983).

-62-

Manhart, 435 U.S. at 716. This Court has

also held that it is no defense to

intermediate acts of discrimination that

the final result of an employment process,

or "bottom line," is non-discriminatory.

Connecticut v. Teal, 457 U.S. 440 (1982).

Thus, even if the “bottom line" - the

effect on offspring - were the same for

women and men, it remains true that women

are subjected to discriminatory treatment

because Johnson Controls' policy and others

like it impose on them terms and conditions

of employment which are not applied to men.

In sum, the disparate treatment

"business necessity" analysis applied in

Wright, Hayes and the court below is

inappropriate here. Johnson Controls'

policy can be justified only as a BFOQ.

However, because women can perform the jobs

at issue, this defense is unavailing as a

-63-

matter of law. A contrary result would

conflict with the plain language of Title

VII and the central goals underlying the

legislation.

-64-

CONCLUSION

Wherefore, amici urge the Court to

reverse the decision of the Seventh Circuit

and remand with instructions to enter

judgment for petitioners.

Respectfully submitted

JOAN E. BERTIN

(Counsel of Record)

ELISABETH A. WERBY

JACQUELINE A. BERRIEN

ISABELLE KATZ PINZLER

MARLA HASSNER KARY L. MOSS

30 Rockeffer Plaza American Civil Liberties

New York, New York Union Foundation

10112 132 West 43rd Street

New York, New York 10036

Of Counsel (212) 944-9800

Attorneys for

Amici Curiae

June 1, 1990

-65-

APPENDIX

Statements of Interest of

Organizational Amici Curiae

The AMERICAN CIVIL LIBERTIES UNION

(ACLU) is a nationwide, non-partisan

organization of over 250,000 members. The

Women's Rights Project of the ACLU

Foundation was established to work toward

the elimination of the pervasive problem of

gender-based discrimination. It has

participated in the litigation of many

cases challenging sex discrimination in

employment and discrimination against women

of childbearing capacity. The American

Civil Liberties Union of Wisconsin is the

Wisconsin state affiliate of the ACLU.

The AMALGAMATED CLOTHING AND TEXTILE

WORKERS UNION (ACTWU) is an international

trade union, with 260,000 members in the

apparel, textile and related industries.

It has many members -- both women and men

A-1 .

- exposed to lead and other reproductive

chemical hazards in a wide variety of

industries. Many of these workers will be

directly affected by the principies

established in this case.

The AMERICAN ASSOCIATION OF UNIVERSITY

WOMEN (AAUW), a national organization of

over 140,000 college-educated women and

men, is strongly committed to promoting and

achieving legal, social, educational and

economic equity for women. For more than a

century AAUW has worked toward those goals

by responsible participation in public

policy issues at local, state, national and

international levels. AAUW supports

constitutional protection for the rights of

ail individuals and opposes all forms of

discrimination. Therefore, AAUW has a

strong interest in the outcome of this

case.

The AMERICAN FEDERATION OF STATE,

COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO,

(AFSCME), which represents approximately

one million public employees, is the

nation's largest public employee labor

union. AFSCME represents many men and

women in the health care and sanitation

industries whose jobs continuously expose

them to hazardous tox _c substances and

chemicals.

The AMERICAN FRIENDS SERVICE COMMITTEE

has since 1917 been active in works of

humanitarian relief and service, reconcili-

ation among nations and peoples, and

programs to overcome discrimination and

oppression. The AFSC carries out its work

as a service agency of the Society of

Friends in America. The AFSC has a vital

interest in this litigation because of our

belief in the infinite worth cf each human

A-3

being and the equality of all human beings

in the sight of God. This belief has led

the AFSC to commit a significant portion of

its resources to work which seeks to root

out the causes of violence in society which

lie in poverty and imbalance of wealth, in

exclusion, and denial of rights.

AFSC works in this country and in

other parts of the world in support of the

efforts of women to have access to jobs

that provide adequate income in workplaces

that are free of hazards. We have worked

for the past decade, in parts of Appalachia

in support of women challenging exclusion

from jobs in coal mining and road

construction, the only well-paid jobs

available to people without college

degrees. :

In addition AFSC has worked along the

Mexico-U.S. border for more than twenty

A-4

years in programs dealing with health,

human rights and economic development. In

the 1970s we became concerned about the

impact of maquiladoras, the foreign-owned

assembly plants located in Mexico alcng the

border between the two countries. We have

seen vividly the impact on the health and

safety of the young women who work at

extremely low wages - $4 a day or less - in

plants which give little attention to

health and safety considerations. One of

these plants is owned by Johnson Controls

in Reynosa, Mexico, making automation

controls, including day long work with lead

solder. Our staff report that the company

does not provide warnings in Spanish of the

danger of lead exposure to fetuses, does

not test workers' blood and actively

recruits young women workers.

Thus for us, the present case deals

with issues of exclusion and of safety in

which we have a longstanding and profound

interest.

The ASIAN IMMIGRANT WOMEN ADVOCATES

(AIWA) educates and organizes Asian

immigrant women employed as seamstresses,

hotel maids, waitresses, nursing aides, and

electronic assemblers. Many of these

immigrant women suffer from extremely poor

working conditions and occupational

hazards. For instance, the electronics

industry has a high rate of occupation

related illnesses compared to other

businesses. Environmental pollution is

also a problem in neighborhoods near

electronic plants, where toxics have been

discovered in the water and residents have

reported a higher incidence of birth

defects and miscarriages. Seamstresses

A-6

develop respiratory diseases, eye strain,

and muscle pains from inhaling dust,

threads and fabric dyes. Therefore, AIWA

has a strong interest in the outcome of

this case affecting the working conditions

and rights of working women.

The BOSTON WOMEN'S HEALTH BOOK

COLLECTIVE is a non-profit organization

devoted to education about women and

health. Its many projects and services

include a women's Health Information

Center, which is open to the public, and

the extensive distribution of materials to

the public about women and health. In

addition, the Collective has authored a

major publication concerning women and

health, Our Bodies, Our Selves, which has

been translated into thirteen foreign

languages

The CENTER FOR CONSTITUTIONAL RIGHTS

(CCR) was born of the civil rights movement

and the struggle of Black people in the

United States for true equality. CCR

attorneys have been active in cases

involving employment discrimination, voting

rights, jury composition, and fair housing.

Through litigation and public education,

CCR has worked to protect and make

meaningful the constitutional rights of

women, Blacks, Puerto Ricans, Native

Americans and Chicanos. CCR attorneys

served as counsel of record for the amici

supporting the right of unwed mothers to

employment in the public school system in

Andrews v. Drew Municipal Separate School

District, 507 F.2d 611 (5th Cir. 1975),

cert. dismissed as improvidently granted,

425 U.S. 559 (1976).

The CENTRAL NEW YORK COUNCIL ON

OCCUPATIONAL SAFETY AND HEALTH is a not-

for-profit organization dedicated to

workers' health and safety rights. Its

members includ2 40 area union locals,

individual organized and unorganized

workers, concerned health providers,

attorneys, educators, and others. It

believes the Seventh Circuit Court of

Appeals' decision in this case undermines

the OSHA lead standard and the health of

all workers. Furthermore, the decision

simultaneously restricts women's employment

opportunities and leaves men exposed to

hazardous work conditions.

The COAL EMPLOYMENT PROJECT is a

national membership organization of women

coal miners and their supporters. Since

its founding in 1977, CEP has supported

women miners in efforts to open up mining

A-9

jobs for women, eliminate discrimination

and harassment, and improve health and

safety conditions for all miners. The

outcome of this case is of vital importance

to our membership.

The COALITION OF LABOR UNION WOMEN is

America's only national oraanization for

union women, with 75 chapters across the

county and over 20,000 members representing

60 unions. CLUW is dedicated to ending job

discrimination against women and

minorities, defending the right of each

woman to make reproductive decisions in

private, and achieving safe and healthy

working conditions for al] workers.

The COMMITTEE FOR RESPONSIBLE GENETICS

is a group of approximately 600 scientists

and others concerned with social and

ethical implications of biotechnology,

including reproductive technology, which

A-10

promotes the broadest possible public

participation in development of relevant

decisions. The Committee for Responsible

Genetics opposes exclusionary employment

practices because they violate workers'

civil rights and fail to ensure the

reproductive health of all employees in the

workplace.

The COMMUNICATIONS WORKERS OF AMERICA

(CWA) is an international trade union,

representing 650,000 workers in information

industries. It has many members -- both

men and women -- who are exposed to toxic

chemicals in their work and therefore are

directly affected by the principles

established in this case.

The CONNECTICUT WOMEN'S EDUCATION AND

LEGAL FUND, INC. was incorporated in 1973

as a non-profit public interest law firm

advocating for women's legal rights. We

A-1l1

have over 500 members and serve thousands

of people in New England each year through

our litigation, community education,

research and information and referral

programs. We choose to join this case as

an amicus curiae because we have worked

with thousands of women workers who have

suffered serious economic and personal

losses as a result of workplace

discrimination.

The EMPLOYMENT LAW CENTER, a project

of the Legal Aid Society of San Francisco,

is a private non-profit public interest law

firm which specializes in employment

discrimination. Founded in 1916 to

represent individuals unable to afford

legal counsel, the Center is dedicated to

the eradication of all forms of employment

discrimination including sex

discrimination.

The Employment Law Center is counsel

for Queen E. Foster in Johnson Controls,

Inc. v. California (Fair Employment and

Housing Commission and Queen Elizabeth

Foster), which was recently decided in the

California Court of Appeal and was denied

review by the California Supreme Court.

Ms. Foster applied for a position with

Johnson Controls at their Fullerton,

California plant and was denied employment

because she refused to provide medical

evidence documenting her inability to

conceive children. In an unanimous

opinion, the Court of Appeal ruled in Ms.

Foster's favor and held that Johnson

Controls "fetal protection" policy violated

California's prohibition. against

discrimination on the basis of sex. Prior

to representing Ms. Foster, the Employment

Law Center paxticipated as an amicus curiae

A-13

in Wright v. Olin Corp., 697 F.2d 1172 (4th

Cir. 1982).

In the area of sex discrimination, the

Employment Law Center has also filed amicus

curiae briefs in the United States Supreme

Court including California Federal Savings

& Loan Associ ion v ; ins v.

Price Waterhouse; Meritor Savings Bank, FSB

v. Vinson; ta Club o u v. Board

of Directors of Rotary International; and

Wygant v. Jackson Board of Education.

The INTERNATIONAL CHEMICAL WORKERS

UNION, AFL-CIO is a national labor

organization headquartered in Akron, Ohio.

It has over 300 affiliated local unions in

over 500 bargaining units, representing

about 40,000 hourly workers in the U.S.

chemical industry. Many of its members are

occupationally exposed to lead, as well as

other chemicals. The Union is concerned

A-14

that a company may discriminate in work

assignments rather than reducing exposure

levels to make the workplace safe for

workers of both sexes. This is a

particularly critical concern with exposure

to material such as lead, which has

demonstrable reproductive effects for men

as well as women.

The MAINE LABOR GROUP ON HEALTH is a

statewide, non-profit organization

dedicated to protecting the health and

safety of Maine working people and their

families. It provides worker educational

programs and serves as workers' advocates

within the health care system and in the

public policy arena.

The MASSACHUSETTS CHAPTER OF THE

NATIONAL LAWYERS GUILD, was founded in

1937, in part to counter the exclusionary

policies of the American Bar Association

A-15

which at the time did not admit Black

attorneys to membership, the NATIONAL

LAWYERS GUILD and its MASSACHUSETTS CHAPTER

have a long history of opposing

exclusionary employment policies. The

MASSACHUSETTS CHAPTER, with over 325

members, has a working committee on

reproductive rights which is involved in

legal and educational efforts to protect

reproductive rights, including the rights

of all workers to be free from reproductive

hazards in the workplace. The organization

is opposed to "fetal protection" policies

unilaterally adopted by employers which

exclude women of child-bearing capacity

from jobs and employment benefits and fail

to protect the health and safety of all

workers - male and female.

The MASSACHUSETTS COALITION FOR

QCCUPATIONAL SAFETY AND HEALTH (MassCOSH)

A-16

is a coalition of 85 labor organizations,

representing over 150,000 workers and 150

occupational health professionals in

Massachusetts. MassCOSH is dedicated to

improving health and safety conditions in

the workplace through technical assistance,

training, and education and political

action. MassCOSH, which has a reproductive

hazards project and regularly conducts

workshops with member locals regarding

reproductive hazards in the workplace,

believes that all workers are entitled to a

safe workplace.

The MEXICAN AMERICAN LEGAi, DEFENSE AND

EDUCATIONAL FUND (MALDEF), established in

1967, is a national civil rights

organization headquartered in Los Angeles.

Its principal objective is to assure,

through litigation and education, the civil

rights of Hispanics living in the United

States. Given the increased . »resentation

of Latinas in our nation's workforce, many

of MALDEF's efforts are directed at

eliminating discriminatory barriers to

equal employment opportunities.

The NATIONAL ABORTION RIGHTS ACTION

LEAGUE (NARAL) has over 400,000 members in

41 state affiliates and the national

organization. NARAL is dedicated to

guaranteeing women the full range of

reproductive choices, including the right

to bear children without economic

sanctions, which is critical to women's

autonomy and equality.

9 TO 5, NATIONAL ASSOCIATION OF

WORKING WOMEN, is a nationwide membership

group dedicated to improving the status and

working conditions of office workers. For

more than seventeen years, 9 to 5 has been

concerned with bringing attention to the

A-18

health and safety hazards faced by working

women. We strongly believe that employers

should meet their legal obligations to

provide safe workplaces to all workers, and

are opposed to the exclusion of women as a

substitute for correcting job hazards.

The 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 then.

A-19

The NATIONAL COUNCIL OF JEWISH WOMEN,

founded in 1893, the National Council of

Jewish Women (NCJW) is the oldest Jewisn

women's volunteer organization in America.

NCIJW's 100,000 members in more than 200

sections across the Wnited States keep the

organization's promise to dedicate

themselves, in the spirit of Judaism, to

advancing human welfare and the democratic

way of life through a combination of social

action, education and community service.

Based on NCJW's National Resolutions that

include working for “employment policies

which safeguard the dignity, rights,

benefits, health and safety of all

workers," it joins this brief.

The NATIONAL LAWYERS GUILD is a

national organization representing over

8,000 lawyers, legal workers, law students

and jailhouse lawyers in over 200 chapters

A-20

throughout the United States. Since its

founding 1937, the Guild has provided legai

support to virtually every struggle in this

country for economic, social and political

justice. ie Guild is firmly committed and

works actively to protect the rights of all

people, and specifically the right of women

to equal access to employment.

The NATIONAL ORGANIZATION FOR WOMEN

(NOW) is a national membership organization

of approximately 150,000 women and men in

about 700 chapters throughout the country.

It is a leading advocate of women's

equality in all areas of life. One of its

priorities is assuring the right to full

employment opportunity without a sacrifice

of health or reproductive rights.

The NATIONAL UNION OF HOSPITAL AND

HEALTH CARE EMPLOYEES, AFSCME, AFL-CIO

(NUHHCE), is a labor organization

A-21

representing approximately 38,000

professional and non-professional hospital

and health care workers. Many of its

members - male and female -are regularly

exposed to numerous toxic substances and

hazardous chemicals in their workplace and

would be directly affected by the

principles established in this case.

Because of its historic and activist

opposition to discrimination of all kinds

and its concern for the health of all

workers and the public, NUHHCE has a strong

interest in this case.

The NATIONAL WOMEN'S HEALTH NETWORK

(NWHN) is a public interest organization

whose membership, comprised of 10,000

individuals and 400 organizations

representing 500,000 women, seeks to give

women a voice in the health care sy:.tem in

the United States. NWHN supports women's

A-22

right to have complete control over their

bodies, particularly the right to decide

when, where and how to give birth, and

opposes policies which condition employment

on the loss of fertility.

The NATIONAL WOMEN'S POLITICAL CAUCUS

(NWPC) is a nationwide membership

organization dedicated to the election and

appointment of more women to political

office. NWPC also works to ensure equality

for women in all aspects of life.

The NEW YORK COUNCIL ON OCCUPATIONAL

SAFETY AND HEALTH (NYCOSH) is a non-profit

membership organization dedicated to the

right of all workers to safe and healthy

working conditions. Its membership

includes over 160 union locals and regional

councils, as well as individual workers,

medical and legal professionals and

community activists, all working together

A-23

to eliminate workplace hazards. NYCOSH,

which has a reproductive haza:ds committee,

believes that exclusionary policies are not

the appropriate solution to reproductive

hazards in the workplace.

The NORTH CAROLINA OCCUPATIONAL SAFETY

AND HEALTH PROJECT (NCOSH) is a private,

non-profit membership organization working

to improve occupational safety and health

conditions for all North Carolinians.

Approximately 70 local unions representing

27,000 workers and 400 health and legal

professionals concerned about occupational

health are NCOSH members. NCOSH believes

that exclusionary employment practices and

policies are inappropriate and illegal

solutions to the problem of dangerous

occupational exposures. Exclusionary

policies violate the rights of women to

A-24

pursue equal employment and the rights of

all workers to a safe workplace.

NORTHWEST WOMEN'S LAW CENTER is a

private, non-profit organization in

Seattle, Washington, that works to advance

the legal rights of women by means of

litigation, legislation, education, and

providing information and referrals.

Protecting women's freedom of reproductive

choice is one of the Law Center's priority

issue areas. The Law Center has

participated in several cases involving

reproductive rights before the U.S. Supreme

Court and other courts.

The OCCUPATIONAL SAFETY AND HEALTH LAW

CENTER (OSHLC) is a public interest law

firm which represents individuals,

families, organizations, and unions in

health and safety matters. The OSHLC has

an on-going concern with regard to

A-25

reproductive rights and the protection of

both men and women on tne job from any risk

to those rights.

The OIL, CHEMICAL AND ATOMIC WORKERS

INTERNATIONAL UNION (OCAW) has 100,000

members, a substantial number of whom are

employed in industries and are potentially

affected by exclusionary employment

policies similar to the one at issue in

this case. The OCAW opposes exclusionary

policies which single out members of one

sex, and it actively seeks to develop and

encourage the use of policies which will

protect the health of all workers.

The PHILADELPHIA AREA PROJECT ON

OCCUPATIONAL SAFETY AND HEALTH (PHILAPOSH)

is a private, non-profit corporation which

seeks to promote the health and safety of

employees in Eastern Pennsylvania, Southern

New Jersey, and the State of Delaware.

A-26

PHILAPOSH has approximately 175 affiliated

local unions with a combined individual

membership of over 200,000. PHILAPOSH has

regularly participated in litigation which

raises important health and safety issues,

either as a party or as amicus curiae.

Over the last several years, PHILAPOSH has

presented a number of workshops and

conferences on reproductive hazards in the

workplace and issues of particular concern

to women workers. PHILAPOSH has published

a pamphiet, "Getting vob Hazards Out of the

Bedroom."

The PLANNED PARENTHOOD FEDERATION OF

AMERICA (PPFA) is a not-for-profit

corporation organized in 1922. It is the

nation's oldest and largest voluntary

family planning agency. Its 180 affiliates

in forty-three states and the District of

Columbia provide medical, educational and

A-27

counseling services to meet the family

planning needs of over two million

Americans per year. PPFA believes that the

ability to regulate one's own fertility is

a basic human right and is concerned that

female workers not be penalized in their

exercise of that right. The organization

further believes that this issue can and

must be resolved in a manner that protects

the health interests of all workers and

their children without sacrificing the

workers' rights to equal employment

opportunity.

The ROCHESTER COUNCIL ON OCCUPATIONAL

SAFETY AND HEALTH (ROCOSH) is a non-profit

organization comprised of unions, health

and legal professionals, industrial

hygienists, educators, and concerned

individuals who believe all working people

are entitled to a safe and healthy

A-28

workplace. Our union affiliates represent

about 32,000 persons. ROCOSH is interested

in this case because of its belief that

working people should not have to choose

between making a living or preserving their

life and health. Upholding Johnson

Controls' “fetal protection policy" would

pervert OSHA's mandate that employers

provide a safe workplace and would threaten

womens' employment opportunities. If

allowed to stand, this decision could have

implications for several workplaces in the

Rochester area.

The SANTA CLARA CENTER FOR

OCCUPATIONAL SAFETY AND HEALTH (SC-COSH) is

a group representing 170 labor unions,

workers and occupational health

professionals in northern California,

dedicated to improving health and safety

conditions in the workplace.

A-29

The SERVICE EMPLOYEES INTERNATIONAL

UNION (SEIU) represents 925,000 workers in

the U.S. and Canada. Its workers work

primarily in the service sector, in a broad

spectrum of workplaces including hospitals,

offices, and food service facilities where

they are exposed to toxic substances that

adversely affect reproduction and health

generally. The use of exclusionary

practices, instead of a comprehensive

approach to health protection, could

threaten the economic status of a large

number of members. |

SILICON VALLEY TOXICS COALITION based

in San Jose, California, includes labor

unions, environmental oryanizations,

doctors and other public health workers,

fire fighters, clergy, and neighborhood

organizations. It advocates that industry

and government must protect the public

A-30

health and works to prevent exposure of the

public to toxic sukstances.

The UNITED MINE WORKERS OF AMERICA,

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

old organization which represents

approximately 150,000 miners and retirees

in North America. The UMWA is committed to

the complete elimination of impediments to

job opportunities based on race and gender.

The UMWA believes that employers must

remove and protect against work-related

health hazards. Barring women or others

from jobs due to those hazards is an

evasion of the employer's responsibility

for workplace health and safety. Moreover,

such exclusionary policies do not promote

safety because men remain exposed to the

hazards. | Rather, these practices shift the

risks and burdens of an unhealthy work

environment to those least able to bear

then.

The WESTERN NEW YORK COUNCIL ON

OCCUPATIONAL SAFETY & HEALTH (WNYCOSH) is

an organization comprised of 60 area union

locals (representing 55,000 workers) and a

number of health professionals in the

Western New York area. WNYCOSH is part of

a consortium of organizations, including

the Cornell-Chemical Hazards Information

Program, the SUNY Buffalo Toxicology

Research Center, and the Union Occupational

Health Center Clinic which cooperate in

providing educational and technical

assistance services to workers in the

region. WNYCOSH is concerned that any

judicial decision that undermines the OSHA

lead standard is inappropriate since there

is evidence that lead constitutes a

reproductive hazard for both sexes.

A-32

WIDER OPPORTUNITIES FOR WOMEN has

worked nationally and in Washington, D.C.

for twenty-five years to achieve economic

independence and equality of opportunity

for women and girls. WOW has a solid track

record of achieving advances for women in

economic policies, employment practices and

employment and training programs. As an

organization committed to improving the

economic and employment status of women,

WOW is deeply concerned about the

protection of women's rights on the job.

The WOMEN' ECONOMIC AGENDA PROJECT

(WEAP) is a Ca cornia state-wide, multi-

racial, cross-class women's rights and

empowerment organization. Our work

includes the fight for public policies that

support low income women, because women and

children are the majority of the

impoverished population. Today, both women

A-33

in the paid workforce and AFDC mothers

worry about adequate income for food, rent,

health care and decent and affordable child

care. WEAP has a long standing policy

against laws that block job and training

advancement because of pregnancy, as well

as other gender and race based

discrimination policies.

WOMEN EMPLOYED, based in Chicago,

Illinois, has a national membership of

3,000. It assists working women with

problems of sex discrimination and health

and safety issues. Because the policy at

issue in this case threatens womens’

employment rights, it is of particular

concern to Women Employed.

WOMEN'S LAW PROJECT (WLP) is a non-

profit feminist law firm which seeks to

advance the legal and economic status of

women through litigation, public education,

A-34

and individual counseling. During the past

fifteen years of its existence, WLP's

activities have included work in the areas

of reproductive freedom, pregnancy

discrimination, and employment

discrimination. WLP is dedicated to

eliminating discrimination against women

based on childbearing capacity and to

securing the right of women workers to

equal access to safe workplaces.

WORKSAFE FOR HEALTHY COMMUNITIES is a

coalition of organizations and individuals

representing labor, business,

environmentalists, health professionals,

community based organizations, and others

in California. Worksafe is dedicated to:

(1) educating the public about the need fur

worker protection and the relationship

between control of workplace hazards,

community health and environmental

A-35

protection; and (2) seeking to ensure that

California establishes an effective and

comprehensive workplace protection program

that will serve as a model for the nation.

Worksafe opposes exlusionary employment

practices because they fail to control

toxic use at its source and result in

discrimination against workers. Worksafe

believes that an effective workplace and

environmental hazard control program must

seek to reduce and control toxic use,

rather than controlling worker fertility.

Statements of Interest of Individual

amici Curiae

STATEMENT OF INTEREST OF VICKY BUTTICE

I worked for five years in a high lead

department of a chemical factory. Though

the work was hard, the pay (about

$13.00/hour) and benefits were very good.

I was told, both at my job interview

and during the orientation on my first day

A-36

of work, that the research on the dangers

of working around lead were still out and

that there were no conclusions, either pro

or con that could be drawn from the

research. I was therefore surprised to

learn after I had worked there for a while

that management had introduced a policy

which prohibited all women who could

conceive from working in the high lead

areas. At the time I learned about the

policy I was also told that if I wanted to

continue working around lead I would have

to give personnel a letter from my doctor

confirming that I could not have children.

At this time I was married and had no

plans to have any children. I thought that

I would be exempt from the policy because

my husband had had a vasectomy. However

the plant manager told me that even though

A-37

my husband had been sterilized I could

still "screw around."

I was informed by a personnel

representative that I could definitely keep

my job in the high lead area if I would

agree to being sterilized. However I would

have to have an examination by the company

doctor to determine if I could have

children and sign a paper stating that I

would not sue the company. I refused to

Sign the paper, and within a few days, I

was laid off.

I eventually took a job at a fast-food

restaurant at a substantial cut in pay. It

took me a long time to find work after my

layoff because the economic situation in my

community and the surrounding area is very

bad. There are no other companies within

20-25 miles of where I live that offer

A-38

comparable salaries or benefits to those of

the chemical plant.

My layoff made things very difficult

for both my husband and myself. When I

began work at the chemical plant, we had

taken a mortgage to buy our house. In

addition to his full time job at the

chemical plant, my husband had to take a

sert~tine job in construction and work

seven days a week. Even with my husband

working so much, we were barely making ends

meet. The loss of income from my salary

also created a lot of tension between us.

During that time we seemed to argue often

over money and how we were going to pay our

bills.

STATEMENT OF INTEREST OF CYNTHIA GARZA

In 1979 I began working for a battery

manufacturer because that plant is the best

place to work in my town in terms of its

A-39

salaries and benefits. I was hired as an

order checker in the shipping department,

but was transferred several times into jobs

that paid more and gave me the chance to

earn shift premiums, which helped a lot in

paying my bills.

In 1985, I became pregnant a second

time. The department where I worked at

that time was not a high lead area, but

when the personnel director learned that I

was pregnant I was told that I couldn't

stay on the job. I wasn't given any

reason, and even my doctor said that I

could continue working. The personnel

director informed me that if I had wanted

to keep my job then I shouldn't have gotten

pregnant. I filed a grievance through the

union for discrimination, but in a meeting

I and the shop steward had with the

personnel director, I was told that the

A-40

only way I could get my job back would be

to lose the baby.

I was very upset. Nobody was able to

help. The union was unable to do anything

and my doctor refused to sign the papers

for disability because he said that I could

still work. A few days after my meeting

with the personnel director, I miscarried

the pregnancy. I had been approximately

thirteen to fourteen weeks pregnant.

STATEMENT OF INTEREST OF PAT GRANT

In 1976 I began working in the foundry

of an automobile pine. At that time I had

one child.

The first time I learned about the

policy excluding women of childbearing

capacity was late in 1980, after I had

already had my second child, when I was

told to go to the company's medical

department. They told me that I could not

A-41

continue to work in the foundry as an iron

pourer because this job exposed me to a

high level of lead. I was also told that

in order to keep my job I would have to be

sterilized. There were no exceptions to

the policy, even though I told the medical

people that I was then using birth control

and had no plans for becoming pregnant. I

objected to the policy and, along with

other women in the plant, filed a grievance

with the union against the company for

discrimination. The union negotia-ed a

slightly modified policy with the company

and I remained on my job.

Between 1979 and 1983 I was laid off

due to a general work slow down. When I

was called back to work I was transferred

to iron pouring. However after a few weeks

I was removed again because of the policy

and as a result I filed charges of

A-42

discrimination and harassment with a state

agency. Because of my complaint I was

harassed and chreatened with discharge.

However because of my seniority I

transferred to another department and have

only worked in iron pouring as a temporary

replacement for another worker for three

months in i985.

After the policy was modified all the

women were closely monitored for blood lead

levels and if their lead level was too high

they ‘were either moved to another

department where the air lead level was

lower or they had to wear respirators.

Transfer to another department meant losing

about $.45 or $.50/hour in salary. There

was also less overtime and weekend work in

the low lead departments.

In 1984, two women were removed

because they had high blood lead levels and

A-43

told they could not return even when their

lead level dropped to normal because the

air lead level was too high. However

again, I was allowed to work their

overtime, probably because I had filed the

charges. By the end of 1984 I was under a

lot of stress. I was always under pressure

on my job because of harassment from my

foreman. The company had modified its

policy somewhat, and other women were

allowed to return to high lead areas, but I

was not, except as a relief worker. Even

after several years, I don't feel that my

job in the melting department is secure,

because could move me at any time. I also

think the policy is psychologically

degrading because keeping my job doesn't

really depend on whether I'm good at my

work or have seniority, but hangs only on

whether I can have children.

A-44

I liked my job as an iron pourer very

much and don't want to work at anything

else. However I have not been able to

return to this job on a steady basis. The

company has no openings in the skilled

trades and they are not adding new jobs.

There are also no other companies in this

area of the state that pay as high a salary

and offer such good benefits as the

automobile plant.

STATEMENT OF INTEREST OF ALVA LEWIS

I have been employed in an automobile

plant for twenty-five years, and work in

the skilled trades as a millwright. I

believe that the plant has always had a

policy of testing the blood/lead levels of

people who worked in the high lead areas.

However, I don't believe this policy was

routinely enforced. For example, my

brother worked in the foundry and the

A-45

melting area melting ore for about twenty-

six years, but as far as I know he had only

one blood test. In 1978 or 1979, he was

tested and had a very high blood/lead

level. In 1980 or 1981 he collapsed on the

job melting ore (iron) in the melting area.

My brother was forty-four years old

when he had the heart attack, and due to

the events surrounding his heart attack, I

strongly believe his heart attack may very

well have been caused by the many years he

spent working in the high lead melting area

and nearby areas.

When the company enforced its policy

with respect to women working in the high

lead areas, I was a union Committeeman At

Large and at first I thought it was a good

idea. However I, and the other

representatives, also recognized that the

jobs in these areas paid higher wages and

A-46

often offered more overtime than jobs in

other departments in the plant. After

debate and consultation the union decided

to support the women because we thought

that the policy discriminated against women

who wanted and probably needed to work in

the high paying jobs to support their

families.

The foundry is a very hot and dirty

area of the plant and after having

fabricated, installed and repaired

industrial ventilation systems at this

plant for the past twenty-five years, and

after having had training in industrial

ventilation engineering I am aware that

many measures can be taken to improve this

workplace. However we have two major

problems with achieving this goal. One is

after management has spent thousands and

even millions to install a system, they

A-47

assume the systems will last forever and

ignore the need to maintain them. They

also allow amateurs who have great

authority and no expertise to modify the

systems to suit a particular temporary need

which soon results in decreasing the

efficiency of the system and in some cases

nearly destroying it.

STATEMENT OF INTEREST OF JEANNE PATTERSON

I began work at the electronics

company in 1979. At that time I was

married, but we did not have any children.

I was a specialist in etching and enjoyed

the work very much. It required dexterity

and I found it challenging.

When I was hired I wasn't told about

any personnel policy regarding pregnant

workers, or about hazards in the workplace.

But when I became pregnant with my first

child, my supervisor told me that I had to

A-48

have my doctor sign a form authorizing my

working with certain chemicals. Before

signing the form my doctor asked me whether

I wanted to keep my job. He was the one

who told me that if the form was not

signed, I would not have a job.

I worked throughout my first

pregnancy. But after my maternity leave,

I was told that there was no job available

for me and that I would be called in when

something opened up.

I was finally called back to work and

in a few weeks went on graveyard shift.

Later I became pregnant a second time and

informed my supervisor. This time my

doctor refused to authorize my working with

chemicals. I was told by personnel that it

would be difficult for them to find me

another job in the company because my

salary was so high and because my skills

A-49

were in jobs that involved exposure to

chemicals. After a couple of weeks, I was

finally offered an interview for a job in

another area, but it would have meant

taking a 45 percent pay cut.

Financially, my layoff created

difficulties. Our rent was raised twice

during this time and there were many nights

that I stayed awake worrying about paying

bills.

After my maternity leave, I called the

company and told them I was ready to return

to work. After about two months, I was

given a job, but with a loss in seniority

and a $.75/hour reduction in pay, and a

loss of my job title.

STATEMENT OF INTEREST OF BETTY RIGGS

I had several jobs prior to working

in a chemical plant, but the salary and

benefits in those earlier jobs were not as

A-50

good. When I heard that the chemical plant

was hiring women, I applied immediately.

My son was eight years old when I

began working in the plant. At the time my

marriage was going very badly and I did not

want another child until our relationship

improved.

After the company introduced the

policy barring fertile women from working

in all areas but two, and then several

months later just in the high lead areas,

the women held several meetings with

management. I believe that management

pushed sterilization because they made it

clear in the meetings that the only form of

birth control they considered safe was

sterilization. I had asked in one of our

meetings whether my husband's vasectomy was

adequate protection against my becoming

pregnant and was told that it was not.

A-51

According to the company's representative,

I could still fool around and get pregnant.

I decided to have the sterilization

because I needed to keep my job.

Management had said that when possible we

would be transferred to a safe lead-free

department in the factory, but those jobs

paid less than what I was currently

earning. Besides, I didn't think there

were enough jobs available in non-lead

departments for all the women, and so I

thought there was also the chance that I

could be laid off. I don't think I would

have been able to manage financially

without the higher paying job. By the time

the policy was introduced, I knew that my

husband and I were going to separate, and

that I would have to support myself and my

son. In addition, I had always helped my

parents who were elderly and infirm and if

A-52

I had lost my job I would have had to

reduce the amount of my support or even

discontinue it altogether.

I was 26 years old when I was

sterilized and the realization of what I

had done didn't hit me until two or three

weeks after the operation. Generally I'd

say that I felt less a woman because of the

operation. I think that though my marriage

was in bad shape, my sterilization made

things even worse. My husband was cold,

distant and unfeeling about me personally.

He just cared about the money I was

bringing home. The consequences of the

sterilization have even affected my second

marriage. Both my second husband and I

would have very much liked to have had a

child together. In fact I tried to have

the operation reversed, but was not

successful.

At the plant those of us who had been workers or wives of co-workers who refuse

sterilized were often harassed. In fact I to speak to me when we meet.

think the harassment became worse after the Statement of Interest of Unnamed

Amici Curiae

policy was introduced and it became

STATEMENT OF INTEREST OF JANE DOE 1

especially cruel after some of us were

As soon as I heard that the chemical

sterilized. I overhead four men talking

plant was hiring women, I applied for a

about my operation and they said that I

job. A few years after I started working,

"could have had the surgery done in the

the company introduced the policy barring

carpenter shop," and another supervisor

women from working in certain high lead

told me "that anybody can screw you now."

jobs. I was not in a department where

In addition men called the women "whores"

women were barred from working. But we

and wrote signs that said for example,

were led to believe that sometime in the

"save a job, shoot a woman".

future women might be barred from working

I also think the policy created sore

in all other departments where there were

friction in the town where the factory was

chemicals.

located. Even twelve years after the

| During that time I was always worried

policy and being laid-off for eight years,

about whether my job was safe. I still had

I still feel uncomfortable when I attend

payments on my mobile home which I wouldn't

social activities where I might meet some

have been able to make if I lost my job.

of my former co-workers, and there are co-

Generally, there was no way I could plan

A-54 A-55

for a future with the policy hanging over

my head. I live alone and support myself.

After the policy was introduced, the

harassment against women in the plant

became much worse. Many of the men and

supervisors made us feel as though we were

less than an animal. When a woman could

overhear them, they referred to the

sterilizations as "going to the vets."

STATEMENT OF INTEREST OF JANE DOE 2

I have worked since I was sixteen

years old and held a variety of jobs as a

waitress, nurses aide and in a factory.

These jobs paid low wages and had limited

benefits. I heard from friends that an

automobile plant was hiring women, and I

was hired in the late summer of 1976. I

worked in a high lead area of the foundry.

At that time, though no one mentioned that

the lead levels were particularly high or

A-56

that there was any danger. Because of the

policy I had to move to another job. It

made no difference that my husband had a

vasectomy. This job paid less money than

the one in the foundry and I had to work

overtime to make up the difference.

However, it was a hassle having to keep

track of when my overtime came up and how

many hours were worked. It was made very

clear to me that the only way I could go

back and work in the foundry was by getting

sterilized.

: I was laid off for a few months

because of a general slow down in the

plant, and I returned to a low lead area in

the foundry.

The economic situation in this part of

the state is not good. There is only one

other factory that perhaps offers

comparable benefits, but the pay scale is

A-57

lower. Some smaller factories have shut

down and the others are not hiring. If I

lost my job I would either have to travel

at least an hour or more round trip to

another city or state, or I would have to

take a job as a sales clerk or waitress.

STATEMENT OF INTEREST OF JANE DOE 3

I am legally separated and have three

children, and receive no child Support. A

few years ago, I was laid off during the

Slow season from my job in a paper factory,

and a couple of months later when 1 was

Supposed to return to work, the company

refused to hire me back because I was

pregnant.

When I was called back after the

layoff, I checked with personnel to make

Sure about the day I was to return to work.

Later that same day, someone from the

office called me and told me not to return

A-58

to work because I was pregnant. I was told

that my job operating the envelope machine

was dangerous to my pregnancy because I

would be standing for too long. After some

time had passed, the company changed their

reason and said that in operating the

envelope machine I had to stretch a lot and

the company believed that would be a strain

on me physically. Finally, they told me

that the chemicals in the ink printed on

the paper were dangerous to my baby.

The job at the paper factory which

makes paper products and "novelty" items

was the best I ever had. Both the salary

and the benefits were better than any I had

received on my previous jobs. Before I was

laid off I had learned to operate five or

six of the seven available machines, and

had received a $1.50/hour raise.

When I began earning more money, I

took out a personal loan to help me get

ahead on some of my other bills. I was

still making payments on this loan when I

was not rehired, and until I paid up the

loan I was very worried that I would fall

behind in my loan payments. At this point,

I have used all of my unemployment

insurance. The factory also discontinued

my insurance coverage when I was not

rehired. Since March of 1989, I have had

no income and no insurance and am currently

receiving AFDC.

STATEMENT OF INTEREST OF JANE DOE 4

After I graduated from high school I

worked part-time in a restaurant while I

looked for full-time employment. I am

married and have two children. In 1988 I

went to a chemical plant to fill out

applications for employment. I was told by

A-60

the personnel secretary that before I could

complete an application I would first have

to sign a statement that either I had been

sterilized or was past menopause. Since I

was unable to sign, I could not apply for a

job.

In September, I was called by the

union president and told that the factory

had changed its policy and that I should

reapply. This time I was given an

application which included a statement to

the effect that I knew about the dangers of

lead and if I became pregnant while working

at the factory and anything was wrong with

the child I would not sue the company.

Even though I disliked signing the

statement, I did so because I needed the

job. But even though I signed, I never

heard from them.

This particular company is the highest

paying factory in the general area where I

live. It pays about three times more than

any other place around here.

STATEMENT OF INTEREST OF JANE DOE 5

After I moved back to towa I applied

for work at every factory in my area. One

of those companies was a chemical plant,

which I know offers the highest hourly

wage of any employer in this area. I was

not given an application at the personnel

office because I was first asked to Sign a

form stating that I was unable to have

Children. I told them that I had children

and was not Planiing to have any more, but

was told that didn't matter. I would still

have to sign and Provide proof. I think

whether or not I can have or even Plan to

have children in the future is a private

matter. It isn't something the company

A-62

should have to know before they decide

whether or not to hire me. I refused to

sign.

Later in the year I was contacted by

the president of the union at the factory

and told that things had changed and I

could now apply for work: Although this

time I was not asked to sign a separate

form, the application included a statement

Similar to the first one. I completed the

application but did not sign the statement.

It is now over a year since I applied for a

job, but the company has never contacted

me.

STATEMENT OF INTEREST OF JOHN DOE 1

I have worked in the automotive

industry for twenty-five years, first in

New York, and now in the midwest. During

most of those years I worked in the core

department where I am exposed to

A-63

formaldehyde and other solvents. I am

concerned about the exposure to toxic

substances because of my personal

Situation. Only three of my five children

are alive. The second child was stillborn.

My third child developed cancer early in

life and died at age five, and the fourth

pregnancy produced twins who were

prematurely born. I am convinced that my

exposure to hazardous substances in the

workplace was the cause of the two deaths

and possibly the premature births of the

twins.

A lot of men have a hard time relating

their chemical exposures to their own

health problems or those of their children.

Men just assume that during a pregnancy the

health of the baby can only be affected by

something the mother is exposed to. I also

think for economic reasons this issue is a

A-64

hard one for many people to take a stand

on. The plant where I work isn't hiring

any new workers, and all of the men here

have ten, fifteen or more years seniority.

Some people are afraid that if there is too

much pressure put on the company to clean-

up the workplace, then the plant will close

down. This is what happened in the New

york plant where I worked. I have twenty-

five years with this company and if this

plant was shut down, I know that there is

no factory in this area where I could even

earn a third of my current salary. You

might say that we're sort of caught between

a rock and a hard place. Some men prefer

to ignore the health issue and just gamble

that they or their children won't get sick.

STATEMENT OF INTEREST OF JANE DOE 6

I quit high school in the 10th grade,

but returned eleven years later and

A-65

received my graduation equivalency diploma.

After I quit school, I worked for five

years as a sales clerk ina variety store.

My salary was minimum wage and I received

no benefits other than hospitalization.

My next job was in a textile factory, but

after a while it closed. aA year later I

heard that they were hiring women at a

plant. I applied for the job because it

offered a much better Salary ($4.25/hour)

and better benefits than any of the jobs I

had ever had before. Even though the work

was strenuous, I enjoyed it. The money and

benefits were excellent. A few years after

I started, the women were told that

management had decided to prohibit all

women capable of having children from

working in departments where there were

dangerous chemicals. Around this time this

policy was introduced, I had to have a

A-66

total hysterectomy for medical reasons.

Other women at the factory were sterilized

so that they could keep their jobs. When

we went back to our jobs those of us who

had been sterilized, no matter what the

reason, were recognized by everyone in the

plant. The men in the plant knew about the

policy and they knew I was sterilized.

Some of them harassed me, making jokes and

cruel comments. For example, shortly after

I returned to work, someone put a can in my

locker with the message "you didn't have to

have it done in the hospital, you could

have had it done in the maintenance shop."

Some of the men referred to me as "one of

the guys." I was so upset by this

harassment that my doctor put me on

medication for my nerves.

Eventually those of us who had been

sterilized were recognized in town. There

A-67

were times when I walked into a store where

there were other customers and someone

would loudly say here comes "one of them

women."

STATEMENT OF JANE DOE 7

After six years in low paying jobs, I

was hired in the stockroom at a chemical

company. The salary and benefits were much

better than those I had received before.

I worked at the company for more than

a year before I became pregnant. When my

supervisor learned that I was pregnant, she

told me that I would have to stop working.

Because I complained about this policy, I

was eventually told that I should get a

doctor's authorization to continue working.

My doctor said that there was no harm in my

working because I was not directly exposed

to any dangerous chemicals. However even

with my doctor's authorization, I was laid

A-68

off without any explanation. Although I

collected uremployment insurance during my

layoff, I had to pay for my insurance

coverage with my employer. Because my

insurance was better than my husband's, we

decided to continue my policy, but it was

financially a burden. During this time I

looked for other work but found only

occasional jobs, through a temp agency. I

was never able to get my old job back after

my baby was born, even though I tried.

These last six months have been hard

for us. We are fortunate that my husband's

parents can help us financially from time

to time because we cannot make ends meet

every month.

STATEMENT OF JOHN DOE 2

I have worked in an automobile plant

for several years, and for most of that

time I worked in the foundry. In the early

A-69

seventies, everyone working in the high

lead areas was supposed to have periodic

blood tests to determine lead levels. It

seems that this requirement wasn't enforced

for the men. I know I never had the test.

I was pouring iron when the company

introduced its policy requiring all women

who worked in high lead areas and whose

blood tests showed high lead to transfer to

low or lead free areas or to be sterilized

if they were still of childbearing age. I

Supported those women who objected to the

policy. I thought that the women I worked

with were as capable at their jobs as any

man, and I don't think it was right that

they were being discriminated against. My

impression is that a lot of men felt the

same way.

STATEMENT OF JANE DOE 8

In 1973, I began working in the

foundry of an automobile plant. At the

time, I had one small child and when my

husband and I separated I needed to find a

job with a good salary and benefits. The

plant was the only place in the area that

offered both and I was hired into the

foundry.

In 1973 no one was concerned about

exposure to lead. However a few years

later, after I had been transferred out of

the foundry and to a department where there

wasn't any lead, I heard that some of the

women in the foundry had been sterilized so

that they could keep their jobs. When I

was sent back to the foundry, I had to have

a blood lead test every three months, and

at almost every test the nurse suggested

that I have a tubal ligation. I thought

A-71

the surgery wasn't necessary because my

second husband had a vasectomy. But I was

told that it didn't matter whether or not

my husband was sterilized. My blood lead

levels remained normal so I never had to

leave the foundry. I stayed in there for a

few years until I had enough seniority to

transfer to another department.

The job situation where I live is not

good. If I lost my job I would never find

anything comparable to what I now have. A

woman who is in her late thirties as I am

wouid probably only be able to get’a job as

a sales clerk in the shopping mall or as a

waitress in a fast-food restaurant.

STATEMENT OF INTEREST OF JANE DOE 9

My first industrial job was ina

garment factory doing piece work. I left

there because the wages and benefits were

bad and I found another industrial job in a

~_>

A-72

chemical plant. After five years I was

laid off, and it took me eighteen months to

find another full-time job. But the

chemical company I worked for is the

largest industry in my area and pays the

best wages, and when I learned that they

were hiring new people, I returned there as

soon as I could.

I worked in the mixed cast area,

mixing rocket propellant. I continued in

this department until I became pregnant. i

think this plant discriminates against

pregnant women. I know of women who were

pregnant while working at the plant and the

company seems to punish us for being

pregnant. One woman who just hada a baby

was due for promotion and was by-passed.

They told her it was because she had been

pregnant.

I am now pregnant and am especially

worried that when I return from maternity

leave, I won't have my old job back. I

know that they hired someone else for my

position one week after I was transferred

to the janitor pool.

I am the major supporter of my family.

My husband is presently laid off from his

job. My family depends on my salary and

benefits, and it would be disastrous for us

if I lost my job before my husband is

called back to work.

STATEMENT OF JANE DOE 10

I started working in the foundry of an

automobile plant in 1972. At that time I

was married and had two small children.

After I had worked there for about a

year, management introduced a policy

requiring all women working in high lead

areas to have blood lead level tests every

A-74

three months. My blood lead leve) was

always low. However the general foreman in

the department wanted to get rid of all the

women. Those of us who were not sterilized

had to wear respirators. I found the

respirators very uncomfortable. It's

already hot in the foundry and the

respirator just makes you hotter. In

addition, I couldn't find one that fit me

right. The general foreman kept after the

women to get sterilized and finally I just

decided to have the operation. Looking

back, I regret that I did it. I come from

a big family and I always wanted more

children. At the time I wasn't planning on

getting married again and I really needed

my job to support the children I already

had. But as things happened, I did remarry

al. both my husband and I wanted a child.

A-75

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.