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

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OCTOBER TERM, 1990

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, et al.,

Petitioners,

JOHNSON CONTROLS, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE SUPPORTING RESPONDENT

TIMOTHY B. Dyk

(Counsel of Record)

JOSEPH F. FPAWION UR.

CLERK

Of Counsel: WILLIs J. GOLDSMITH

STEPHEN A. BOKAT DAVID A. Copus

RoBIN S. CONRAD JONEs, Day, REAVis & POGUE

Mona C. ZEIBERG 1450 G Street, N.W.

NATIONAL CHAMBER Washington, D.C. 20005-2088

LITIGATION CENTEX, INC. (202) 879-3939

1615 H Street, N.W. Attorneys for Amicus Curiae

Washington, D.C. 20062 Chamber of Commerce of the

(202) 463-5337 United States of America

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4, " 3 4

TABLE OF CONTENTS

SUMMARY OF ARGUMENT

ARGUMENT

Il.

ITI.

THE FEDERAL GOVERNMENT HAS RE-

PEATEDLY EXPRESSED CONCERN OVER

THE DANGERS OF BIRTH DEFECTS RE-

SULTING FROM MATERNAL EXPOSURE

TO VARIOUS SUBSTANCES INCLUDING

LEAD

THE PREGNANCY DISCRIMINATION ACT

DOES NOT BAR VOLUNTARY EMPLOYER

ACTION TO PROTECT EMPLOYEES AND

THEIR OFFSPRING FROM EXPOSURE TO

TOXINS IN THE WORKPLACE ___.

A. The PDA Restored the Disparate Treatment

Theory’s Application to Pregnancy-Related

PIII ciccsencsosencicesaaastcigicc oe

B. The PDA Bars Only Disparate Treatment

of Pregnant Women and Similarly Situated

Employees .............................. ab iEeT SS, ;

C. The PDA Does Not Foreclose Consideration

of Employee and Fetal Health |

D. This Court’s Decisions Confirm That the

PDA Requires a Comparison of Pregnant

Women and Similarly Situated Employees ___

THE OCCUPATIONAL SAFETY AND

HEALTH ACT SUPPORTS AN INTERPRE-

TATION OF THE PDA THAT WOULD PRE-

SERVE EMPLOYER POLICIES TO PRE-

VENT BIRTH DEFECTS ...

~I]

TABLE OF CONTENTS—Continued

A. The OSH Act Encourages Employers to

Institute Voluntary Programs to Protect the

Health of Their Employees and Their Em-

ployees’ Unborn Children 0000000.

B. Principles of Statutory Construction Re-

quire the Court to Interpret the PDA in the

Light of the OSH Act ....... AS Se

IV. PETITIONERS HAVE FAILED TO SHOW

THAT THE EMPLOYER’S FETAL PROTEC-

TION POLICY VIOLATED THE PDA

ESE SOT

Page

iii .

TABLE OF AUTHORITIES

CASES Page

California Fed. Sav. & Loan Ass’n v. Guerra, 479

U.S. 272 (1987) ....2.2.0....000000 cece cee. _............11, 15, 21

Dothard v. Rawlinson, 433 U.S. 321 (1977) 9

Ernst & Ernst v. Hochfelder, 425 U.S. 185

(1976) ............. caseneseassnanscanublonserusecenabachaseseesdassasenissinss 20

FAA v. Robertson, 422 U.S. 255 (1975) 2.0... 26

Geduldig v. Aiello, 417 U.S. 484 (1974)... 9

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

(1976) ........... Sanabpenandunneenkentasieenessuakontusueashensivaucessanen passim

Griggs v. Duke Power Co., 401 U.S. 424 (1971). 9

Hayes v. Shelby Memorial Hospital, 726 F.2d 1543

(Lith Cir. 1964) .....................000..00 0. 28

In re Penn Central Transp. Co., 384 F. Supp. 895

(Regional Rail Reorg. Ct. 1974) 000... 27

International Bhd. of Teamsters v. United States,

431 U.S. 324 (1977) ............. sevaeicbeoweknasreepesdeiiniss 9

International Union, UAW v. General Dynamics

Land Systems Division, 815 F.2d 1570 (D.C.

Cir.), cert. denied, 484 U.S. 976 (1987)... 24

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) . -” 28

Morton v. Menceri, 417 U. S. 535 (1974) | —— 26, 27

Nashville Gas Co. v. Satty, 434 U.S. 136 (1977) 7, 8, 10

Newport News Shipbuilding & Dry Dock Co. v.

EEOC, 462 U.S. 669 (1983) 0... 19, 20, 21

Phillips v. Martin Marietta Corp., 400 U.S. 542

csc anacsmnssevsnenousareeses . 9

Price Waterhouse v. Hopkins, 109 Ss. Ct. 1775

i cisssnscetintnnanens 28

Regional Rail Reorganization Act Cases, 419 U. S.

5 -A 0 C 9 26

Ruckelshaus v. Monsanto Co., 467 U. S. 986

i Seataiblpnsietanesiteteuapsaciaiseecenuewesncecexan 26

Schwegmann Bros. v. Calvert Distillers Corp.,

341 U.S. 384 (1951) 000... 20

Texas Dep’t of Community Affairs v. Burdine, 450

U.S. 248 (1981) ........ inthis debneeanntenestenencensnnenens 28

Tidewater Oil Co. v. United States, 409 USS. 151

a asc eephimssinkinieieeuadeuesiaen 26

TABLE OF AUTHORITIES—Continued

Page

United Steelworkers v. Marshall, 647 F.2d 1189 :

(D.C. Cir. 1980), cert. denied, 453 U.S. 913

GERNUNED cccciicssancconnsanemiesiniandenthinatiae tits sa! cal ...8, 22, 30

Watt v. Alaska, 451 U.S. 259 (1981) win ae

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

SU Nenad ecisstoecdgente india aera ray nt ennai 28

STATUTES AND REGULATIONS

Indian Reorganization Act of 1934 § 12, 25 U.S.C.

IPE WEED sssidessicctaciananesndadeh kad te 27

Occupational Safety and Health Act (“OSH Act’),

29 U.S.C. § 651 et seq. (1988) .................. passim

OSH Act § 2(b), 29 U.S.C. § 651(b) 22

OSH Act § 2(b) (1), 29 U.S.C. § 651 (b) (1)... 23

OSH Act § 2(b) (4), 29 U.S.C. § 651 (b) (4)... 23

OSH Act § 6(a), 29 U.S.C. § 655 (a) 22

OSH Act § 6(b), 29 U.S.C. § 655(b) 22

Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e et seq. (1982) passim

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

Title VII §703(a) (1), 42 U.S.C. § 2000e-

NAT HET iaaliiesca , 9

Title VII § 703(a) (2), 42 U.S.C. § 2000e-

ID exis cacnactins eisai: ROLE PO Ee 9

Title VII § 717(a), 42 U.S.C. § 2000e-16(a) _ 27

15 U.S.C. § 1833(a) (1988)... 5

BD We Bh BOI OID nsec ccssneisccvsecccsecteec 5

27 U.S.C. § 215.) (1988) .................... 4

29 C.F.R. § 1604 (1989) shbiphiddabotadeansnuncmaisiemon ae 13

29 C.F.R. § 1910.1025 (1989)... 25

LEGISLATIVE MATERIALS

116 Cong. Rec. 35,607 (1970) 23

116 Cong. Rec. 36,512 (1970) 23

116 Cong. Rec. 38,704 (1970) _. 23

123 Cong. Rec. 10,582 (1977) 15

123 Cong. Rec. 29,385 (1977). 14

123 Cong. Rec. 29,387 (1977) -....... 14

123 Cong. Rec. 29,654 (1977)

—_

for)

TABLE OF AUTHORITIES—Continued

Pave

Discrimination on the Basis of Pregnancy, 1977:

Hearings on S. 995 Before the Subcomm. on

Labor of the Senate Comm. on Human Re-

sources, 95th Cong., Ist Sess. (1977) .....0000....... passim

H.R. Rep. No. 948, 95th Cong., 2d Sess. (1978) ..12, 13, 15

Lead Poisoning Prevention Program: Hearings

Before the Subcomm. on Toxie Substances, En-

vironmental Oversight, Research and Develop-

ment of the Senate Comm. on Environment and

Public Works, 101st Cong., Ist Sess. (1990)... 6

Legislation to Prohibit Sex Discrimination on the

Basis of Pregnancy: Hearings on H.R. 5055

and H.R. 6075 Before the Subcomm. on Em-

ployment Opportunities of the House Comm. on

Education and Labor, 95th Cong., Ist Sess.

(NESE: AIR OR sea ees ee a TRE oe DET 19-20

S. Rep. No. 331, 95th Cong., Ist Sess. (1977) ....... . 12,13

FEDERAL REGISTER

Clarifications to the Voluntary Protection Pro-

grams, 53 Fed. Reg. 26,339 (1988) —.............. saan 24

Gp es Ss re I cnc cciscccesecseecesceess 5

GD Bs Bs I CD ii esscncnccecccccccccccsececcceencs 22, 29

43 Fed. Reg. 54,389 (1978) A IPEE Ny oe abs DS 29

ie EE IID hicwaccicinctcvcccecnsccessvesecicvsvone 29, 30

SS Pea. BamSG see CiSTe) ................-........00.0............ 30

43 Fed. Reg. 54,398 (1978) sabesdadeid lant 29

46 Pee. mee. BELAER CRGTO) ................................ ere 5

47 Fed. Reg. 46,884 (1982) .......<.......00...00000 ee. 5

55 Fed. Reg. 5414 (1990) 00... PRG ne 4

55 Fed. Reg. 5416 (1990) 0.00000... pase ER ae ITE 4

ey ls Bs MI CID conics cise seeicesinceccesosesccseseveces 5

Lead-Based Paint: Interim Guidelines for Haz-

ard Identification and Abatement in Public and

Indian Housing, 55 Fed. Reg. 14,556 (1990). 6, 7

Notice of Implementation of Revised Voluntary

Protection Programs, 47 Fed. Reg. 29,025

SS a a en nee et eran ne 23, 24

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS

Furnish, Prenatal Exposure to Fetally Toxic Work

Environments: The Dilemma of the 1978 Preg-

nancy Amendment to Title VII of the Civil

Rights Act of 1964, 66 Iowa L. Rev. 63 (1980).

National Institute of Environmental Health

Sciences, Conference Summary, Advances in

Lead Research: Implications for Environmental

Health (Jan. 16-18, 1989) atemndaiitentide

Note, Employment Equality Under the Pregnancy

Discrimination Act of 1978, 94 Yale L.J. 929

RR Tt ADE reer cece Oru DyRe cone ee

Note, The 1978 Pregnancy Discrimination Act:

A Problem of Interpretation, 58 Wash. U. L. Q.

RS: ePIC R Ree

U.S. Dep’t of Health, Education & Welfare, Drugs

and Pregnancy, reprinted from FDA Consumer

a aes

U.S. Dep’t of Health & Human Services, Drugs

and Pregnancy: Often The Two Don’t Miz,

reprinted from FDA Consumer (June 1989).

U.S. Dep’t of Health & Human Services, My Baby

. Strong and Healthy (1986)...

U.S. Environmental Protection Agency, A‘r Qual-

ity Criteria for Lead, Vol. IV (June 1986). ___.

U.S. Environmental Protection Agency, Lead and

Your Drinking Water (April 1987) _................

U.S. Environmental Protection Agency and Con-

sumer Product Safety Commission, The Inside

Story, A Guide to Indoor Air Quality (Sept.

BENE cecshtntsctnbaenaghece cee re er ae ees enero

Women Prohibited from Using Pesticide: EPA

Defends Decision as “Justifiable,” O.S.H. Rep.

(BNA) 1481 (Feb. 22,1979).

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1215

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, et al.,

Petitioners,

Vv.

JOHNSON CONTROLS, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF AMICUS *

The Chamber of Commerce of the United States of

America (the “Chamber’), a nonprofit corporation or-

ganized and existing under the laws of the District of

Columbia, is the largest federation of business, trade,

and professional organizations in the United States. It

represents the interests of over 180,000 corporations,

partnerships, and proprietorships, as well as state and

local chambers of commerce and trade associations. The

vast majority of its members are subject to Title VII of

the Civil Rights Act of 1964 (42 U.S.C. § 2000e, ef. seq.

(1982) (“Title VII’’)) and to the Occupational Health

and Safety Act (Pub. L. 91-596, 84 Stat. 1590 (1970)

* Counsel for all parties have consented to the filing of this ami-

cus brief. Amicus has filed those consents with the Clerk of this

Court.

(codified at 29 U.S.C. § 651 et. seg. {1988)) (“OSH

Act’’)).

The Chamber is filing this brief amicus curiae in sup-

port of respondent because it believes that preserva-

tion of the right of employers to adopt fetal protection

policies and other voluntary policies to safeguard the

health of their employees is important. Such voluntary

programs reflect both sound business practice and good

corporate citizenship and are consistent with, indeed

serve, the goals of applicable federal legislation.

SUMMARY OF ARGUMENT

Petitioners urge that Congress in the Pregnancy Dis-

crimination Act (Title VII §$701(k), 42 USC.

$ 2000e(k) (1982) (“PDA”); required employers to

blind themselves to the risks of birth defects caused by

various substances, risks recognized by a wide variety of

federal agencies and that are particularly acute in the

case of lead.

Congress had no such intent in enacting the PDA. In

the PDA, Congress sought to restore in the area of preg-

nancy the disparate treatment theory rejected by this

Court in General Electric Co. v. Gilbert, 429 U.S. 125

(1976). But in doing so, Congress required only that em-

ployees who are pregnant or are affected by “related

medical conditions .. . be trcated the same... as other

persons not so affected but similar in their ability or in-

ability to work.” 42 U.S.C. § 2000e(k). The legislative

history of the PDA confirms this purpose, repeatedly

emphasizing the requirement of equal treatment of simi-

larly situated employees. Nothing in the legislative his-

tory indicates that the statute was designed to foreclose

consideration of employee and fetal health. To the con-

trary, preservation of fetal health was a central goal of

the legislation.

This interpretation of the PDA is buttressed by the

need to reconcile the PDA with the Occupational Health

and Safety Act (Pub. L. 91-596, 84 Stat. 1590 (1970)

(codified at 29 U.S.C. $651 et seg. (1988)) (“OSH

Act”) ). The OSH Act embodies a strong federal policy

of encouraging voluntary employer action to protect the

health of employees and the children they bear. Con-

sistent with this Court’s decisions requiring the recon-

ciliation of federal statutes, the Court should not con-

strue the PDA to undermine this important purpose of

the OSH Act.

Finally, petitioners have not shown that the employ-

er’s fetal protection policy in this case violates the stand-

ards of the PDA. The burden of proof to establish dis-

parate treatment rests on the plaintiffs. Petitioners make

no claim that the employer’s action was pretextual or

arbitrary, and they have made no showing that the em-

ployer treated similarly situated employees differently.

As the Court of Appeals concluded, the evidence of sim-

ilar risks of birth defects through male exposure was

“speculative,” and petitioners failed to shoulder their

burden of showing the existence of similar risks through

exposure of men. Accordingly, petitioners have made no

showing of unequal treatment.

ARGUMENT

I. THE FEDERAL GOVERNMENT HAS REPEAT-

EDLY EXPRESSED CONCERN OVER THE DAN-

GERS OF BIRTH DEFECTS RESULTING FROM

MATERNAL EXPOSURE TO VARIOUS SUB-

STANCES INCLUDING LEAD.

Petitioners cannot dispute that preventing birth de-

fects by reducing or eliminating occupational exposure Lo

certain substances is a “legitimate and_ significant”

societal interest.' Nor do they deny that lead is a toxic

substance. Indeed, petitioners admit that lead “poses a

risk of significant harm to fetuses of pregnant workers’”’

(Pet. Br. 5), and the District of Columbia Circuit has

characterized that risk as a “grave danger.” * Petition-

1 See, e.g., Br. Amici Curiae of State of California, ef al. 2.

“United Steelworkers v. Marshall, 647 F.2d 1189, 1256 «D.C.

Cir. 1980), cert. denied, 453 U.S. 913 (1981).

ers also do not deny that congenital lead poisoning may

create irreversible fetal damage® and did not argue that

there is any reasonable way to preclude congenital lead

poisoning other than exclusion of women from the work-

place where high levels of lead are present.’ Petitioners’

concessions are not surprising. The federal government’s

Centers for Disease Control (“CDC’) have concluded

that *|t|he prevention of lead expusure to the fetus needs

special emphasis. Women of child-bearing age should be

excluded from working at jobs where significant lead ex-

posure occurs.” JA 184.

Additionally, over the past decade, a host of other fed-

eral agencies have issued warnings concerning prenatal

exposure to various substances.” For example, the fed-

eral government has warned pregnant women against

even moderate alcohol consumption which, although not

endangering the woman’s health, may cause severe birth

defects," and requires that warnings regarding the pos-

sible adverse effects of alcohol consumption during preg-

nancy be printed on all alcoholic beverage containers.’

Federal law also requires cigarette manufacturers to

place on all cigarette packages and in cigarette adver-

tisements conspicuous warnings that smoking may com-

* See Chisolm Aff. © 6, JA 199; Scialli Aff. ©© 7, 10, JA 180-81.

4 See Resp. Br. 12.

>The tort protection the common law affords to unborn and

newborn children also reflects society’s concern for fetal health.

See Resp. Br. 27-28.

®U.S. Dep’t of Health, Educ. & Welfare, Drugs and Pregnancy,

at 3, reprinted from FDA Consumer (Oct. 1978); U.S. Dep’t of

Health & Human Services, My Baby .. . Strong and Healthy, at

5-7 (1986); U.S. Dep't of Health & Human Services, Drugs and

Pregnancy: Often The Two Don't Mix, at 3, reprinted from FDA

Consumer (June 1989).

727 U.S.C. § 215(a) (1988). The required warning reads “GOV-

ERNMENT WARNING: (1) According to the Surgeon General.

women should not drink alcoholic beverages during pregnancy

because of the risk of birth defects.” Jd.; 55 Fed. Reg. 5414, 5416

(1990).

plicate pregnancy.* Governmental agencies also warn

pregnant women to refrain from all drug use, including

aspirin, because drugs may have detrimental health ef-

fects on the children they bear.’ In appropriate cases,

the government itself has banned fertile women from

jobs involving particularly toxie substances. For exam-

ple, in an effert to prevent “abnormal children,” the En-

vironmental Protection Agency has banned women of

child-bearing age from all jobs involving application of

Ferriamicide, a pesticide particularly likely to cause

birth defects through maternal exposure."

The federal government has expressed especially

strong concern over congenital defects resulting from

lead poisoning. In addition to the CDC (see supra p. 4),

two other federal agencies—the Environmental Protec-

tion Agency and the Consumer Product Safety Commis-

sion-—have reported that:

815 U.S.C. §$13320a) (1988). One of the mandated warnings

reads “SURGEON GENERAL’S WARNING: Smoking By Preg-

nant Women May Result In Fetal Injury, Premature Birth, And

Low Birth Weight.” 15 U.S.C. §$ 1333 ¢a) (2).

*Druas and Preqnancy, supra, at 1; Drugs and Pregnancu:

Often the Two Don't Mix, supra, at 1-4. Federal law requires

that warnings be placed on the labels of many over-the-counter

medications. See, e.g., 55 Fed. Reg. 27,776 (1990, ‘requiring new

warning statement in addition to general pregnancy-nursing warn-

ing to appear on all over-the-counter aspirin and aspirin-containing

products: “. .. IT IS ESPECIALLY IMPORTANT NOT TO USE

PASPIRIN, DURING THE LAST THREE MONTHS OF PREG-

NANCY UNLESS SPECIFICALLY DIRECTED TO DO SO BY

A DOCTOR BECAUSE IT MAY CAUSE PROBLEMS IN THE

UNBORN CHILD OR COMPLICATIONS DURING DELIVERY.” ).

See Women Prohibited from Using Pesticide: EPA Defends

Decision as “Justifiable,” O.S.H. Rep. (BNA) 1481-82 (Feb.

22, 197%) (quoting letter of EPA Deputy Administrator. Rarbara

Blum). See also 13 Fed. Reg. 47,774. 47,776, 47,786 (1978): 41

Fed. Reg. 11,111, 11,112, 11,117 (1979); 47 Fed. Reg. 16,884,

46,885 (1982) (“All applications |of Ferriamicide| will be made

by certified applicators only. . . . Women of child-bearing age

are prohibited from loading, applying Ferriamicide.” ).

-Fetuses, infants and children are more vulnerable

to lead exposure than adults since lead is more

easily absorbed into growing bodies, and the tissues

of small children are more sensitive to the damaging

effects of lead. In addition, an equal concentration

of lead is more damaging because of a child’s smaller

body weight."'

The Department of Housing and Urban Development’s

Lead-Based Paint Interim Guidelines require workers in-

volved in lead abatement projects to undergo special

training to learn about the health hazards of lead:

The training program should include information

from recent research studies indicating that (1)

lead is transferred from the mother to the fetus

during pregnancy, and (2) exposure of the fetus to

lead, even at low concentrations, is associated with

developmental effects.'*

Finally, the Federal government has published exten-

sive research findings on the possible long-term negative

effects of prenatal exposure to lead:

The effects of lead exposure on fetuses and young

children include delays in physical and mental de-

'' U.S. Environmental Protection Agency and Consumer Product

Safety Comm'n, The Inside Story, A Guide to Indoor Air Quality,

at 25 (Sept. 1988). See also U.S. Environmental Protection

Agency, Lead and Your Drinking Water, at 2 (April 1987); U.S.

Environmenta! Protection Agency, Air Quality Criteria for Lead,

Vol. IV, at 13-46 (June 1986) (“pregnant women and their con-

cepti as a subgroup are demonstrably at higher risk [than men}”’).

'2 Lead-Based Paint: Interim Guidelines for Hazard Identifica-

tion and Abatement in Public and Indian Housing, 55 Fed. Reg.

14,556, 14,581 (1990). See also Air Quality Criteria for Lead,

supra, at 13-46 (“|ul/mbilical cord blood studies involving mother-

infant pairs have repeatedly shown a correlation between maternal

and fetal blood lead levels”): Lead Poisoning Prevention Pro-

gram: Hearings Before the Subcomm. on Toxic Substances, En-

vironmental Oversight, Research and Development of the Senate

Comm. on Environment and Public Works, 101st Cong., Ist Sess.

(1990) (testimony of Kathryn Mahaffey, Ph.D.).

7 -

velopment, lower IQ levels, shortened attention spans,

and increased behavioral problems.'*

Petitioners would require employers to ignore the un-

deniably substantial risks of birth defects caused by

congenital lead poisoning. Neither logic nor federal law

requires that result.

Il. THE PREGNANCY DISCRIMINATION ACT DOES

NOT BAR VOLUNTARY EMPLOYER ACTION TO

PROTECT EMPLOYEES AND THEIR Of FSPRING

FROM EXPOSURE TC TOXINS IN THE WORK-

PLACE.

Petitioners and their amici urge, as one of their argu-

ments for reversal, that this case is governed by the

Pregnancy Discrimination Act (42 U.S.C. § 2000e(k)

(“PDA"’)\"' a federal statute designed to define the cir-

cumstances in which distinctions on grounds of pregnancy

or “related medical conditions” constitute intentional dis-

crimination under Title VII of the Civil Rights Act of

1964 (42 U.S.C. § 2000e, et seq. (1982) (“Title VII’) )."

We agree, but reach diametrically opposite conclusions as

to the purpose and scope of that statute.

Relying on the first clause of the PDA, which states

that “‘|t}he terms ‘because of sex’ or ‘on the basis of sex’

include, but are not limited to, because of or on the basis

of pregnancy, childbirth, or related medical conditions”

(42 U.S.C. §$ 2000e(k)), petitioners and their amici

argue that Congress designed the PDA to make any dis-

3 The Inside Story, supra, at 25. See also National Institute of

Environmental Health Sciences, Conference Summary, Advances in

Lead Research: Implications for Environmental Health (Jan. 16-

18, 1989); Lead and Your Diinking Water, supra, at 2; Air

Quality Criteria for Lead, supra, at 13-46: Lead-Based Paint:

Interim Guidelines, svpra, at 14,561.

™ Pet. Br. 16-20. See, e.g. Br. Amici Curiae of Equal Rights

Advocates, et al. 1.

' Petitioners also argue (Pet. Br. 12-16) that this is an ordinary

gender discrimination case, a contention that is clearly inconsistent

with this Court’s decisions in General Electrie Co. v. Gilbert, 429

U.S. 125 (1976), and Nashville Gas Co. v. Satty, 434 U.S. 136

(1977). See infra pp. 8-10.

tinction hetween pregnant female employees and male

employees unlawful. See Pet. Br. 17, 20; Br. Amici

Curiae Equal Rights Advocates, et al. 19. In this re-

spect, these parties virtually ignore the second clause of

the PDA, which provides: ‘women affected by preg-

nancy, childbirth or related medical conditions shall be

treated the same for all employment-reljated purposes

... as other persons not so affected but similar in their

ability or inability to work.” 42 U.S.C. § 2000e(k).

That clause, and the legislative history of the PDA, make

clear that the purpose of the PDA was to apply disparate

treatment theory to pregnancy. At the same time, the

plain language of the statute requires that the compari-

son be made between women affected by pregnancy and

related medical conditions and other persons with similar

medical conditions that affect their ability to work.'® Be-

cause the employer’s policy does not involve impermissi-

ble disparate treatment under the PDA, this Court need

not reach the question whether the BFOQ defense is

available to the employer."

A. The PDA _ Restored the Disparate Treatment

Theory’s Application to Pregnancy-Related Policies.

By overruling this Court’s decisions in General Flec-

tric Co. v. Gilbert, 429 U.S. 125 (1976), and Nashville

Gas Co. v. Satty, 434 U.S. 136 (1977), the PDA restored

the disparate treatment theory to plaintiffs’ arsenal when

challenging pregnancy-related policies. At the same time,

the PDA defined how the Courts should apply the dis-

parate treatment theory to pregnancy and “related medi-

eal conditions,” conditions which, by definition, apply

only to women and which were viewed as both warrant-

ing and requiring special consideration in the employ-

ment context.

16 Al] parties appear to agree that “related medical conditions”

includes the condition involved here—the ability of a woman to bear

children. See, e.g., Pet. Br. 17: Br. Amici Curiae of Equal Rights

Advocates, et al. 13.

17As urged by respondent, we agree that such a defense is

available.

The relevant judicial history began well before Gilbert.

From the very outset, § 703(a)(1) of Title VII clearly

banned disparate treatment based upon “race, color, re-

ligion, sex or national origin.” 42 U.S.C. § 2000e-2(a)

(1) (1982). In 1971, seven years after the passage of

Title VII, this Court first embraced an entirely different

theory of discrimination, the disparate impact theory,

brought under a different statutory provision, (§ 703

(a) (2) (Id. § 2000e-2(a)(2)). Griggs v. Duke Power

Co., 401 U.S. 424 (1971). Disparate impact claims

brought pursuant to § 703(a)(2) “involve employment

practices that are facially neutral in their treatment of

different groups but that in fact fall more harshly on one

group than another and cannot be justified by business

necessity.” '*

This Court has invoked both disparate treatment and

disparate impact theories, and, correlatively both §§ 703

(a)(1) and 703(a) (2), to invalidate employer policies

as discriminatory against women.'’

In Gilbert, the Court faced its first Title VII challenge

to an employer’s pregnancy-related policy. The employ-

er’s nonoccupational sickness and accident disability plan

excluded from coverage disabilities arising from preg-

nancy, thus treating women who were unable to work be-

cause of pregnancy differently than employees suffering

other disabling conditions. The Court held this policy did

not constitute disparate treatment in violation of Title

VII because there “‘is no risk from which men are pro-

tected and women are not. Likewise, there is no risk

from which women are protected and men are not.’ ” ~”

18 International Bhd. of Teamsters v. United States, 431 U.S. 324,

356 n.15 (1977).

19 See, e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971)

(disparate treatment theory relied on to strike down an emplover’s

refusal to hire women, but not men, with pre-school-age children):

Dothard v. Rawlinson, 433 U.S. 321 (1977) (state minimum height

and weight requirements for prison guards invalidated under dis-

parate impact theory).

20 Gilbert, 429 U.S. at 138 (quoting Geduldig v. Aiello, 417 U.S.

484, 496-97 (1974)). This Court acknowledged that benefit plan

One year after Gilbert, in Satty, plaintiffs challenged

the employer’s denial of sick pay for women disabled by

pregnancy while granting sick leave to employees dis-

abled from all other nonoccupational conditions. This

Court held that the policy was “indistinguishable” from

the policy in Gilbert, and, accordingly, did not constitute

disparate treatment (434 U.S. at 143). However, the

Court remanded for further proceedings to determine if

the exclusion was pretextual.*!

Read together, Gilbert and Satty foreclosed the vast

majority of disparate treatment and disparate impact

challenges to pregnancy-related exclusions from fringe

benefit plans. Although it foreclosed most challenges to

benefit plans, however, this Court preserved the ability

of women to challenge other pregnancy-related employ-

ment policies under disparate impact analysis.** The pri-

distinctions based on pregnancy would constitute dispaiate treat-

ment in violation of § 703(a)(1) if those distinctions were “ ‘mere

pretexts designed to effect an invidious discrimination against the

members of one sex or the other.”” 429 U.S. at 135 ‘citation

omitted). The plaintiffs in Gilbert did not challenge the employer's

policies under the disparate impact theory. Jd. at 127.

“1 The Court also held that an employer’s denial of accumulated

seniority to women returning to work following pregnancy leave,

while granting such seniority to workers returning from any other

disability leave, did not constitute impermissible disparate treat-

ment, but had a disparate impact on women and thus contravened

Title VII. Satty, 434 U.S. at 141.

“2 Dictum in Satty virtually precluded the future use of the

disparate impact theory as a vehicle to attack pregnancy-related

distinctions, or any distinction for that matter, in employee bene ff

plans. Referring to the wording of § 703(a)(2), Satty concluded

that “it is difficult to perceive how exclusion of pregnancy from a

disability insurance plan or sick-leave compensation program ‘would

deprive any individual of employment opportunities’ or ‘otherw sc

adversely affect his status as an employee’ in violation of § 703

(a)(2).” 434 U.S. at 144-45.

“3 As noted in Satty, women could challenge preynancy-based

policies that “would deprive [an! individual of employment op-

portunities” or “otherwise affect his status as an employee” using

§ 703/a)(2)’s disparate impact analysis. 434 U.S. at 144-45. Indeed,

the plaintiff in Satty did so successfully. See supra n.21.

mary focus of Congressional concern in passing the PDA

was to restore disparate treatment analysis as a basis for

challenging the exclusion of pregnancy and “related med-

ical conditions” from fringe benefit plans.*' At the same

time, Congress sought to apply that same analysis to

other pregnancy-related employment policies.

Congress acted promptly to overrule Gilbert’s and

Satty’s refusal to apply section 703(a)(1)’s disparate

treatment theory to pregnancy-related policies. Passed

less than a year after Satty, the PDA added the follow-

ing provision to the definitional section of Title VII:

The terms “because of sex” or “on the basis of

sex’”’ include, but are not limited to, because of or

on the basis of pregnancy, childbirth, or related

medical conditions; and women affected by preq-

nancy, childbirth, or related medica! conditions shall

be trexted the same for all employment-related pur-

poses, including receipt of benefits under fringe

benefit programs, as other persons not so affected

but similar in their ability or inability to work.”

B. The PDA Bars Only Disparate Treatment of Preg-

nant Women and Similarly Situated Employees.

The proper interpretation of the 1978 amendment re-

quires an examination of the “PDA’s language against

the background of its legislative history and _ historical

context.” California Fed. Sav. & Loan Ass’n v. Guerra,

479 U.S. 272, 284 (1987). By ignoring the essential his-

torieal context of the PDA, and by focusing exclusively

*4 This Court correctly observed in California Fed. Sav. & Loan

Ass'n v. Guerra, 479 U.S. 272, 285 (1987), that the “‘context in

which Congress considered the issue of pregnancy discrimination”

centered on extensive evidence of discrimination against pregnant

women, “particularly in disability and health insurance programs

like those challenged in Gilbert and [Satty].” Furthermore, “{o|]p-

position to the PDA came from those concerned with the cost of in-

cluding pregnancy in health and disability-benefit plans and the

application of the bill to abortion.” Jd. at 286.

*5 Title VII §701(k), 42 U.S.C. § 2000e(k) (1982) (emphasis

added).

on the first clause of the amendment, petitioners seri-

ously misconstrue the entire thrust of the PDA, which

merely was to restore the application of the disparate

treatment theory of § 703(a)(1) to pregnancy-related

policies. The PDA was not designed to excuse plaintiffs

challenging pregnancy-based policies from shouldering

the burden of showing that the pregnancy-related policy

constituted unequal treatment and failed to achieve “‘com-

parability among employees.” “" Thus, while the PDA

made “clear that distinctions based on pregnancy are

per se violations of Title VII,” *’ the question remained

as to what other group was to be compared with preg-

nant women to determine whether an impermissible dis-

tinction existed. The PDA’s second clause sets forth the

relevant comparison.**

Unlike non-pregnancy based gender distinctions in-

volving distinctions between women and men, the com-

parison required by the PDA was not between pregnant

women and men, but between women affected by preg-

nancy and other employees who are similarly situated.

This is made clear not only in the plain language of the

statute, but also in the committee reports and debates.

The House Report confirmed that ‘|t{he bill would sim-

ply require that pregnant women be treated the same as

other employees on the basis of their ability or inability

“6S. Rep. No. 331, 95th Cong., Ist Sess. 5 (1977) (“Senat

Report”). See also H.R. Rep. No. 948, 95th Cong., Sess. 4 (1978)

(“House Report”) (“Pregnancy-based distinctions will be subject

to the same scrutiny on the same terms as other acts of sex dis-

crimination proscribed in the existing statute.”).

“7 House Report at 3.

“8 Petitioners and amici Equal Rights Advocates, et ul., recognize

the existence of the second clause but, without any support in the

legislative history, suggest that it is relevant only to the BFOQ

defense and not to the issue of whether disparate treatment exists.

Pet. Br. 31-33; Br. Amici Curiae of Equal Rights Advocates, ef ul.

20.

to work.” ** An identical description appears in the Sen-

ate Report. Senate Report at 4. As the Senate Report

makes clear, the second clause of the PDA requires a

straightforward, two part analysis: First, women af-

fected by pregnancy, childbirth or related medical condi-

tions “who are able to work must be permitted to work

on the same conditions as other employees.” Jd. at 4.

Second, women who are “not able to work for medical

reasons . . . must be accorded the same rights, leave

privileges and other benefits, as other workers who are

disabled from working.” Jd. As the Senate Report con-

cluded:

Under this bill, the treatment of pregnant women

. must focus not on their condition alone but on

the actual effects of that condition on their ability to

work.*”

*” House Report at 4. See also id. at 3 (The bill “specifically

defines standards which require that pregnant workers be treated

the same as other employees on the basis of their ability or in-

ability to work.”’).

%” Senate Report at 4. Petitioners concede that this statement

from the legislative history accurately reflects Congressional intent.

Pet. Br. 32. The EEOC’s Questions and Answers on Pregnancy

Discrimination, published promptly after the PDA's passage, also

reflect this central purpose of the PDA:

The basic principle of the Act is that women affected by

pregnancy and related conditions must be treated the same as

other applicants and employees on the basis of their ability or

inability to work. 29 C.F.R. § 1604 ( App.) (emphasis added).

This view of the legislative history has been confirmed in law

review commentary :

The Senate committee report clearly states that the basic

standard embodied in section 701(k) is “comparability among

employees.” As one senator explained in debate, the “touch-

stone of compliance” with the amendment is equality of treat-

ment. Both the literal language of the amendment and

abundant, unambiguous legislative history compel this inter-

pretation of the subsection. Vhus, differential treatment of

employees for any employment related purpose must be based

on differences in the employees’ ability or inability to work

Senator Williams, the floor manager of the bill in the

Senate, clearly stated this standard during the Senate

debate on the PDA:

The central purpose of the bill is to require that

womcn workers be treated equally with other em-

ployees on the basis of their ability or inability to

work. The key to compliance in every case will be

equality of treatment.

Senator Javits, a co-sponsor of the bill, also made it

clear that “[t}he bill requires equal treatment when dis-

ability due to pregnancy is compared to other disabling

conditions .... | T]he bill adopts as its standard equality

? 32

of treatment....”*

rather than on differences in sex, including differences rena

ing from pregnancy, childbirth or related medical conditions.

Note, The 1978 Pregnancy Discrimination Act: A Problem of ee

terpretation, 58 Wash. U. L. Q. 607, 628-29 (1980) ber agp “

omitted). Congress recognized that “principles of comparable Woon :

ment would provide full redress to the inequities of such agen’

and that “{t|his intent is codified in the PDA $ second clause w ve

functions specifically to reverse Gilbert.” Note, E'mploym nt Ek —

ity Under the Pregnancy Discrimination Act of 1978, 94 Yale L.J.

929, 937 (1985) (footnotes omitted).

41123 Cong. Rec. 29,385 (1977) (emphasis added).

82 Jd. at 29.387. Similar views were expressed in the hearings.

lor example, Senator Kennedy stated: tit

[The bill] merely requires that employers who have disability

plans for their employees treat pregnancy-related disabilities

in the same fashion that all other temporary disabilities are

treated with respect to benefits and leave policies. |

Unless we change the law, an employer can now provide dis-

ability income protection benefits for cosmetic surgery but not

provide such benefits to women whose genuine disability is

pregnancy related. | |

Discrimination on the Basis of Pregnancy, 1977: Hearings on S.

995 Before the Subcomm. on Labor of the Senate Comm. on Human

Resources (“Senate Hearings”), 95th Cong., Ist Sess. 26 (197%)

(prepared statement of Senator Kennedy ). See also Senate engl

ings at 7 (“the legislation would require that disability based vo

pregnancy, childbirth, or related medica! conditions be treated as

Similarly, Representative Hawkins, the floor manager

of the bill in the House, stated:

|E|mployers . . . must treat pregnant women as

they treat other employes similar in their ability,

or inability, to work. This means, for example, that

if an employer permits other employees to continue

working unless their doctors regard them as physi-

cally unable to work, it may not force pregnant

women off the job, as many employers have done in

the past, while they are perfectly able to perform

their jobs.**

Finally, and perhaps most significantly, the committee

reports and the other legislative history of the PDA

make clear that Congress’ goal in adopting the PDA was

“approval of the views of the dissenters in Gilbert.” “'

Yet neither of thuse dissents favored a comparison be-

tween pregnant women and male employees. Quite the

contrary. Justice Brennan at the outside of his opinion

made clear that his dispute with the majority concerned

whether “a private employer can adopt a disability plan

that compensates employees for all temporary disabilities

except one affecting exclusively women, pregnancy.”

Gilbert, 429 U.S. at 146. Similarly, Justice Stevens

stated that his disagreement with the majority related to

the employer’s treatment of pregnancy “differently from

any other kind of absence ....” Jd. at 161. Senator

Javits confirmed that this was the Congressional reading

of Gilbert:

We do not want pregnancy discriminated against,

as contrasted with a broken leg or a strep throat

or appendicitis or some other basis for disability.

any other disability under a company plan’’) ‘statement of Senator

Bayh).

“123 Cong. Rec. 10,582 (1977) (introductory remarks of Repre-

sentative Hawkins).

*4 California Fed. Sav. & Loan Ass'n v. Guerva, 479 U.S. 272. 277

n.6 (1987). See also House Report at 2 (“{ilt is the Committee's

view that the dissenting justices correctly interpreted the Act");

Senate Report at 2 (the two dissenting opinions “correctly express

both the principle and meaning of Title VII”).

That was the basis of the decision of the U.S. Su-

preme Court in the Gilbert case—to wit, that we

in the Congress had not covered that point with re-

spect to pregnancy. So new we are covering it.

Thus. while Congress intended to bar distinctions

based on pregnancy or related medical conditions that

were arbitrary or stereotypical, the legislation was

clearly not intended to foreclose differentiation based on

equal treatment of similarly situated employees. In order

to constitute a violation of the PDA’s prohibition of dis-

parate treatment, a plaintiff must compare the employ-

er’s treatment of women affected by pregnancy with the

employer’s treatment of employees who have other dis-

abilities but are similar in their ability or inability to

work.

C. The PDA Does Not Foreclose Consideration of

Employee and Fetal Health.

Petitioners, as well as Judge Easterbrook in his dis-

sent below (Pet. App. 74a), urge that even if the second

clause of the PDA is viewed as establishing the relevant

standard, this Court should look only at an employee’s

bare ability to do a job’s functional tasks, without regard

to the risks—no matter how serious—of congenital birth

defects to children born to an employee exposed to toxic

substances. Pet. Br. 31-33. Contrary to these sugges-

tions, Congress did not confine the PDA’s notion of ‘“abil-

ity or inability to work” solely to the question of whether

an employee could perform a job. Employee health and

the risk of birth defects were a central ingredient of

“ability to work” under the statute. If they were not,

employers could refuse to give pregnant employees dis-

ability leave and other benefits based on the facile argu-

ment that their “ability to work” had not been impaired

by their pregnancy, only their health or that of their

offspring.

$5 123 Cong. Rec. 29,654 (1877).

While Congress did not focus specifically on risks as-

sociated with exposure of pregnant women to hazardous

substances, Congress was concerned with women who

were “not able to work for medical reasons” (Sen-

ate Report at 4), and the interest in the health of a

woman’s offspring constituted a primary Congressional

concern in passing the PDA. Senator Kennedy, a mem-

ber of the committee reporting out the Senate bill,

stressed the importance of the PDA in addressing the

concern that a pregnant woman might feel compelled to

risk harm to her unborn child by continuing to work in

order to continue to receive benefits:

There will be tens of millions of expectant mothers

who will have to make that choice [between sur-

rendering benefits or continuing to work]. That is

bad health care policy; it is bad for the mother: it

is bad for the child. You have the statistics here

in terms of the incidences of mental retardation,

infant mortality, child complications either from

prematurity or from other factors.”

Clarence Mitchell, Director of the Washington Bureau

of the NAACP and Chairman of the Leadership Confer-

ence on Civil Rights, also expressed such concerns:

We want children not only to be born but we want

them to be well born. We want mothers not to be

restrained from carrying on that wonderful fune-

tion of producing a fellow human simply because

the future is uncertain and they don’t know whether

they would get the kind of benefits that people might

get for getting an injury on the golf course."*

Patricia K. Putman, Associate Dean for Legal and

Legislative Affairs, School of Medicine of the University

of Hawaii, Honolulu, also emphasized the interests of

the child who will be carried to term:

38 See infra n.40.

*7 Senate Hearings at 24. Senator Kennedy apparently was speak-

ing of the costs associated with denying disability income pay-

ments to women who take time off because of pregnancy. Sv.

Senate Hearings at 26 (prepared statement of Senator Ke nnedy ).

88 Jd. at 110.

'Plroviding this kind ot equality for women is not

only a benefit to those womer but also to their

children, to their families, and to the child that they

may be bearing and will give birth to. So it is not

just for women alone.”

Thus, a primary purpose of the legislation was ‘0

protect fetal health. It would be anomalous in the ex-

treme to construe such legislation to require employers

to employ women in hazardous eccupations that un-

questionably jeopardized such health. There is not the

slightest indication that Congress intended the PDA to

have that effect so long as women were treated equally

with similarly situated employees.*”

“J? at 370 (emphasis added). To be sure, as petitioners point

out (Pet. Br. 19), the legislative history also expresses concern

that women might Jose benefits and income if they were arbitrarily,

excluded trom e:aployment based on the fact of pregnancy. But this

concern is perfectly consistent with a Congressional solution tha’

required that women be treated equally with similarly situated

employees.

i Relying on snippets of legislative history, amie’ Equal Rights

Advocates, et al., urge this Court to conclude that Conyress con-

sciously prohibited fetal protection policies when it enacted th

PDA. Br. Amici Curiae of Equal Rights Advocates, ef al. 4-15

While the legislative history of the PDA reflects extensive concern

with fetal health, it “is virtually void of any testimony or debate

on the problem of exposing pregnant women to toxic work en\ irou-

ments.” Furnish, Prenatal Exposure to Fetally Torie Work En-

vironments: The Dilemma of the 1975 Pregnancy Amendment to

Title VII of the Civil Rights Act of 1964, 66 lowa L. Rev. 63, 77-78

(1980).

Amici Equal Rights Advocates, et al., rely on two vague state-

ments by Senator Hatch, a congressional opponent of the PDA,

and the only member of Congress even to advert to the issue, and

one paragraph of the written submission of amicus, the Chamber

of Commerce of the United States, which also opposed the legisla-

tion. Br. Amici Curiae of Equal Rights Advocates, ef al. 4-5.

Senator Hatch had the following exchange with Dr. Andre E.

Hellegers: .

Senator Hatch. Do you think there would arise a whole slew

of OSHA problems, occupational safety and health problems as

a result of pregnant women?

{ Continued |

D. This Court’s Decisions Confirm That the PDA Re-

quires a Comparison of Pregnant Women and Simi-

larly Situated Employees.

Since its enactment in 1978, this Court has applied

the PDA in two cases, both of which support our view

of the Amendment. Newport News Shipbuilding & Dry

49 [Continued ]

Dr. Hellegers. Let me put it this way: I have long been an

advocate for a massive increase in research to deal with the

effects of poisons, chemicals, physical or other agents on

pregnant working women. However, twe other things: Those

agents are just as likely to affect the ovaries of nonpregnant

women and there are in fact today companies that will not

hire women on that specific basis.

But you never dream of thinking that the same agents may

also affect the testicles of men. So if we are talking about

untoward effects of industrial processes on human procreation,

we have to look at the effects on testicles, the effects on ovaries

and the effects on fetuses, all three, and we aren't doing much

of that.

Senate Hearinas at 67. Later that day Senator Hatch made a pass-

ing reference to “OSHA problems” in the course of a dialogue with

Clarence Mitchell, Director of the Washington Bureau of the

NAACP and Chairman of the Leadership Conference on Civil

Rights:

There are many problems that might arise in this. It is a

complicated area.

If we grant this particular bill we may have OSHA problems

that we hadn’t thought of, and maybe we should. Senate Hear-

ings at 109-10.

Senator Hatch’s statements are entirely consistent with the PDA

as enacted. The effect of the bill was to prohibit the employer from

treating pregnant women differently from other employees similarly

situated, as Dr. Helleger’s comments appear to suggest. Senator

Hatch certainly did not suggest that under the bill every employer

must routinely employ pregnant women regardless of the hazards

of the job.

G. Brockwel Heylin, the representative of the Chamber of Com-

merce, stated in his testimony that the bill “would prevent an em-

ployer from refusing certain work to a pregnant employee where

such work posed a threat to the health of either the mother-to-be

or her unborn child” and that the employer ‘would be powerless to

deny the work to the child’s mother during the pregnancy.” Legisla-

Dock Co. v. EEOC, 462 U.S. 669 (1983), involved a

male employee’s § 703(a) (1) challenge to a compary s

health insurance plan. Although the company’s plan

provided female employees the same hospitalization cov-

erage for pregnancy-related conditions as it provided

for their other medical conditions, it provided less ex-

tensive coverage for pregnancy-related conditions of

the spouses of male employees. The employer argued

that the sole purpose of the PDA was to protect female

employees and that male employees could not claim its

protection to invalidate discriminatory treatment against

their spouses. This Court rejected that argument, find-

ing that the PDA overruled Gilbert's rationale, not just

its narrow holding relating to benefits provided to preg-

nant employees. While this Court thus heid that “{t]he

meaning of the first clause |of the PDA| is not limited

tion to Prohibit Ser Discrimination on the Basis of Pregnancy:

Hearings on H.R. 5055 and H.R, 6075 Before the Subcomm. on

Employment Opportunities of the House Comm, on Education and

Labor, 95th Cong., Ist Sess. 84 (1977). See also Senate Hearings

at 482.

The Chamber’s comments could hardly have been meant to sug-

gest that in all circumstances the employer was “powerless” to

protect employee and fetal health. Employers remained obligated

under the OSH Act to do so in many circumstances, and empowered

to do so at least when the BFOQ standard was satisfied. The

Chamber's comments, like Senator Hatch’s, were intended to sug-

gest ouly that the employer’s power was circumscribed by the

requirenient of similar treatment, not that the power was entirely

eliminated. In any event, no member of Congress expres: ed agree-

ment with the Chamber’s views.

Congress's failure to “indicate any disagreement” (Br. Amici

Curiae of Equal Rights Advocates, et al. 11) with a lone witness

view of the possible implications of the PIA, without more,

can hardly be deemed to indicate Congressional acceptance of

that view. Even comments by Congressional opponents of legisla-

tion are not a re suide to Congressional intent. See Schwey-

mann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-95 (1951) |

Ernst & Ernst v. Hochfelder, 425 U.S. 185, 205-04 n.24 (1976).

Given the importance, and salience, of the societal interest in pre-

venting birth defects (see supra pp. 3-7), it is inconceivable that

Congress would have consciously acted to prohibit employer fetal

protection efforts in such an off-handed, unconsidered manner.

by the specific language of the second clause” and that

the statute protects male as well as female employees

(Newport News, 462 U.S. at 678 n.14), it is the second

clause and not the first “which explains the application

of the general principle to [pregnant] women em-

ployees.” *! Id. at 676.

In California Fed. Sav. & Loan Ass’n v. Guerra, 479

U.S. 272 (1987), this Court’s second decision interpret-

ing the PDA, the Court held that the PDA did not

pre-empt a California state statute requiring employers

to grant employees disabled by r.egnancy, but not by

other conditions, qualified rights of reinstatement fol-

lowing disability leave. The Court made clear that the

second clause of the PDA states the governing standard.

It then held, in effect, that the second clause of the

PDA protected pregnant employees and their spouses

from disparate treatment but did not protect other em-

ployees with similar disabilities from discriminatory

treatment viv-a-vis pregnant employees. The Court

stressed again the amendment’s purpose in overruling

both the holding and the rationale of Gilbert:

_ By adding pregnancy to the definition of sex dis-

crimination prohibited by Title VII, the first clause

of the PDA reflects Congress’ disapproval of the

reasoning in Gilbert . . . [T]he second clause was

intended to overrule the holding in Gilbert and to

illustrate how discrimination against pregnancy is

to be remedied.”

Neither Newport News nor Guerra he:d or implied

that distinctions based on pregnancy do not require a

comparison with similarly situated employees. Both rec-

ognized that the standard for the protection of em-

ployees who were pregnant or who had a related medical

condition was equality of treatment with those simi-

41 The employer had argued that the PDA’s reference in its second

clause to individuals’ ‘ability or inability to work” limited the

PDA’s application to female employees, and, therefore, the PDA

afforded no protection to non-employee spouses. 462 U.S. at 679.

42479 U4, at 284-85 (emphasis added; citations omitted).

larly situated. Under that standard, as discussed in Part

IV below, it is clear that the employer’s policy here did

not violate the PDA.

Ill. THE OCCUPATIONAL SAFETY AND HEALTH

ACT SUPPORTS AN INTERPRETATION OF TH®

PDA THAT WOULD PRESERVE EMPLOYER POL-

ICIES TO PREVENT BIRTH DEFECTS.

A. The OSH Act Encourages Employers to Institute

Voluntary Programs to Protect the Health of Their

Employees and Their Employees’ Unborn Children.

Even if the language and legislative history of the

PDA were less clear, the Occupational Health and Safety

Act (Pub. L. 91-596, 84 Stat. 1590 (1970) (codified at

29 U.S.C. § 651 et seq. (1988)) (“OSH Act’) ) supports

a construction of the PDA that would permit employers

to maintain non-discriminatory policies designed to pro-

tect employee and fetal health.

The OSH Act is designed to ‘assure so far as possible

every working man and woman in the Nation safe and

healthful working conditions... .” 29 U.S.C. § 651‘b).

Even petitioners concede, as they must, that the pro-

tections of the OSH Act extend to the “reproductive

health of workers, including the health of the children

they bear.” **

To achieve this goal, the OSH Act requires, among

other things, the Secretary of Labor to promulgate health

and safety standards. 29 U.S.C. $ 655(a), (bi. A re-

lated purpose of the OSH Act is to encourage employers

to institute, voluntarily, health and safety programs pro-

viding greater protection than that mandated by the Sec-

retary’s standards. Thus, the statute’s purposes and

policy are to be accomplished, in part:

43 Pet. Br. 41 (citing 29 U.S.C. $655(b) and United Steel-

workers v. Marshall, 647 F.2d 1189, 1256 (D.C. Cir. 1980), cert.

denied, 453 U.S. 913 (1981)). See also 43 Fed. Reg. 52,959 (1978 )

(“OSHA asserts that damage to the fetus represents impairment

of the reproductive capacity of the parent and must be considered

material impairment of functional capacity under the OSH Act.”).

(1) by encouraging emplovers ‘ees j

their efforts to reduce the conn “te

safety and health hazards at their places of on im

ment, and to stimulate employers and pe Maen to

a new and to perfect existing programs for

—™ safe and healthful working conditions:

7 * * *

bd by building upon advances already made

rough employer . . . initiative for providing saf

and healthful working conditions{.] * ‘ ,

The legislative history of the OSH Act underscores the

concern of C ongress that the statute encourage employers

to take voluntary initiatives to improve workplace health

and safety. The legislative history is replete with ref-

erences to employers that were providing innovative and

effective health and safety programs at the time the OSH

Act was under consideration.*° Senator Saxbe, in a writ-

ten statement introduced before the Senate. spoke of

the fundamental judgment that what is needed is com-

prehensive Federal legislation which would take

oe of and encourage further private initiative to

9 rp gg healthful employment.” 116 Cong. Rec.

Since passage of the OSH A

ct, the Department of

— Occupational Safety and Health Administration

“OSHA ' has implemented this statutory purpose by

providing for Voluntary Protection Programs.** Under

#429 U.S.C. $ 651(b)(1), (4).

; See, C.9-, 116 Cong. Rec. 36,512 (1970) ‘statement of Senat

Saxbe) (noting that safety protections are given “prime sthentis ”

by larger employers): 116 Cong. Rec. 38,704 (1970) (state aaa

of Representative Sikes) (noting that “!slome aiienin an

demonstrated an outstanding degree of concern for the h jo mee

safety of their employees” ) ——