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

Supreme Court, US.

' FILED

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' nm 2

No. 89-1215 -

rrr IR.

RIK '

IN THE 4 - ge

Supreme Court of the AGnited States

OcTOBER TERM, 1990 _

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, et al.,

Petitioners,

V.

JOHNSON CONTROLS, INC.

Respondent.

On Appeai From The United States Court Of Appeals

For The Seventh Circuit

BRIEF AMICUS CURIAE OF

CONCERNED WOMEN FOR AMERICA

IN SUPPORT OF RESPONDENT

JANE E. Hapro*

JORDAN W. LORENCE

CIMRON CAMPBELL

MARK N. TROOBNICK

Concerned Women for America

370 L’Enfant Promenade, S.W.

Suite 800

Washington, D.C. 20024

(202) 488-7000

*Counsel of Record

WENDELL R. BirRpD

1150 Monarch Plaza

3414 Peachtree Lane

Atlanta, Georgia 30326

(404) 264-9400

Attorneys for Amicus Curiae

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 — (301) 864-6662

BEST AVAILABLE COPY Summa

i

TABLE OF CONTENTS

Page

Te OP GOI 5 i ovo cna sesnktdssnnsiedsenee i

BRE OP RATTIRIOOIIITIIR, «a x 65 6000 kk cbc ccnccdeseens il

inTemeeT OF AMICUS CURIAB. .....cccccccccccccses l

IS 5 i556 6624 aniawninsciicesiia tee l

I. EMPLOYER PoLicies WHICH PrRoTeEcT UNBORN

CHILDREN FROM BirtH DeEFEcTs, BUT APPLY

DIFFERENTLY To WOMEN THAN MEN, ARE Con-

GUBTENMT. WIT RETEE VER occ cc ccccccccessecvcss l

A. Title VII Prohibits Only “Arbitrary and Unnec-

essary” Discrimination, And Not All Differen-

tial Treatment Of People ..................

B. Employer Policies Which Protect Unborn Chil-

dren From Birth Defects Are Not Arbitrary Or

Unnecessary In Manufacturing Processes

Which Expose Women To Airborne Lead. ... s

Il. EMpLoYER Pouicies WuHIcH Protect UNBORN

CHILDREN From BirtH Derects, BuT APPLY

DIFFERENTLY To WoMEN THAN MEN, SATISFY

THE TitLe VII Exception For Bona FIpe

to

OCCUPATIONAL QUALIFICATIONS ............-. 10

A. Consideration Of The Interests Of Third Par-

ties Is Permissible In BFOQ Analysis ...... 12

B. Increasing Recognition Of The Interests Of

Unborn Children Regarding Birth Defects And

Life Itself, By Society And Government, Justi-

fies Consideration Of Those Interests By

Employers In Voluntarily Considering Work-

SE ND 6. k.n's ccna cnceeisansenss 14

. Policies Which Protect Unborn Children From

Birth Defects Are BFOQs, Particularly When

Reduction Of Employer Liability Is Involved. 18

Ill. THe FepeRAL Courts Or APPEALS THAT HAVE

ADDRESSED EMPLOYER POLICIES PROTECTING

UNBORN CHILDREN FRoM BirtH DEFECTS HAVE

A laa THE PoLicieEs CONSISTENT WITH TITLE

Cebee tances eakudds i caseaeeenneneee 20

CN oe ianeucchet ond cdbenvcnsnuneee 23

'?)

li

TABLE OF AUTHORITIES

CASES Page

Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985).... 17

Baldwin v. Butcher, 155 W. Va. 431, 184 S.E.2d 428(1971) 17

Bergstresser v. Mitchell, 577 F.2d 22 (8th Cir. 1978).... 16

Britt v. Sears, 150 Ind. App. 487, 277 N.E.2d 20 (1972). 17

Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 304

SEER ES ae hr 16

City of Akron v. Akron Center for Reproductive Health,

Oe i 15

Deitrich v. Inhabitants of Northampton, 138 Mass. 14

SRE an? AS ae te ee 16

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

Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354

BREED ae EUS A eae ae 16

Enright v. Eli Lilly & Co., 155 App.Div.2d 64, 55:

UN. YS.2d 494 (1990)... aa

Evans v. Olson, 550 P.2d 924 (Okl. 1976). ............. 17

Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964) 17

Furnco Construction Corp. v. Waters, 438 U.S. 567(1978) 20

General Electric Co. v. Gilbert, 429 U.S. 125 (1976).... 4

Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962)....... 17

Harris v. McRae, 448 U.S. 297 (1980) ................ 15

Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th

RES A eae ree ae 11, 21, 22, 23

Hatala v. Markiewicz, 26 Conn.Supp. 358, 224 A.2d 406

ees ee Uae s cas uehusedsese. 16

a Minnesota, 58 U.S.L.W. 4957 (S.Ct. June 25,

SR ee ees a eae S

Hopkins v. McBane, 359 N.W.2d 862 (N.D. 1984)...... 17

International Union, UAW v. Johnson Control, Inc., 886

ce SS eee passim

International Brotherhood of Teamsters v. United States,

es nea iucpeccbdvenes 20

Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d

ccs e ease 16

Libbee v. Parmanente Clinic, 268 Or. 258, 518 P.2d 636

ee ea cin caeceeserees 17

Los Angeles Department of Water & Power v. Manhart,

Ee

Maher v. Roe, 432 U.S. 464 (1977) ..............0005. 15

ill

Table of Authorities Continued

Page

Michael M. v. Sonoma County Superior Court, 450 U.S.

re 8

Mitchell v. Couch, 285 S.W.2d 901 (Ky. 1955). ......... 17

Moen v. Hanson, 85 Wash.2d 597, 537 P.2d 266 (1975)... 17

Mone v. Greyhound Lines, Inc., 368 Mass. 354, 331

ee ee re ee eee 17

Newport News Ship Building and Dry Dock v. EEOC,

ED ccc aesneecbeeeenseetesesess 4

Odham y. Sherman, 234 Md. 179, 198 A.2d 71 (1964)... 17

O'Grady v. Brown, 654 3.W.2d 904 (Mo. 1983)......... 17

O'Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971). 17

Parham v. Hughes, 441 U.S. 347 (1975)... 26... ee ee i)

Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971). 11

Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249

od nas 6s isa se Kae saeetveserecees 17

Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955) = 16

Presley v. Newport Hospital, 117 R.1. 177, 365 A.2d 748

ie an enn ree 17

Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (1954) .... 0 17

Renslow v. Mennonite Hospital, 67 [ll.2d 348, 10 Ill. Dee.

— 8 Rl 16

Salazar v. St. Vincent Hospital, 95 N.M. 150, 619 P.2d 826

eet bb esate csbesesecccrscosccens 17

Schiesinger v. Ballard, 441 U.S. 347 (1979) ........... i)

Security National Bank vy. Chloride, Inc., 603 F.Supp.

I Eo cease ncasencesacccecccesces 19

Simmons v. Howard University, 323 F.Supp. 529 (D.D.C. ;

Te cece eee es cdnhawkseneeencenecess 6

Smith v. Brennan, 31 NJ 353, 157 A.2d 497 (1960)... .. 23

Summertield v. Superior Court In and For Maricopa

County, 144 Ariz. 467, 698 P.2d 712 (1985) ........ 16

Thornburgh v. American College of Obstetricians &

(;ynecologists, 476 U.S. 747 (1986)............-.. 15

Vaillancourt v. Medical Center Hospital of Vermont,

Inc., 139 Vt. 138, 425 A.2d 92 (1980) ............. 17

Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838

Teele wa ee Seb eee seatendesneese 17

Wascom v. American Indemnity Corp., 383 So.2d 1037

cc heeskesssenceeenececassee sees 17

iv

Table of Authorities Continued

Page

Webster v. Reproductive Health Services, 492 U.S. ——.

106 L.Ed. 2d 410, 109 S. Ct. —_— (1989).......... 15

Werling v.-Sandy, 17 Ohio St.3d 45, 476 N.E.2d 1053

COED < okcus.sencsndehuseennenasuesukeenneesess 17

Western Air Lines, Inc. v. Criswell, 472 U.S. 400

CE is kash onde 4s enue ee Kebeeenneeeeneeees 12, 13, 20

White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969)......... 17

Worgan v. Gretfo and Ferrara, Inc., 128 A.2d 557 (Del.

UE, BOTIED. o oc cc cccccecctesccccinnsegawevess: 16

Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982) .11, 21, 22

FEDERAL STATUES:

Civil Rights Act of 1964, 42 U.S.C. §2000e et seq... passim

® POR gf fe 06 ll eee err 3.4

§ 708 (a)(1), 42 U.S.C. § 2000e-2(a) ................. 2

$ 703 (e)(1), 42 U.S.C. § 2000e-2(e) (1) .. 2... eee ll

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

STATE STATUTES:

Cal. Penal Code § 187 (West Supp. 1986).............. 17

Ill. Ann. Stat. ch. 38, § 9-1.2 (Smith-Hurd Supp. 1990);. 17

Iowa Code Ann. § 707.7 (West 1979)..............00.. 17

Mich. Comp. Laws Ann. § 750.322 (West 1968)......... 17

Miss. Code Ann. § 97-3-37 (1973). .......... cece eeeee 17

N.H. Rev. Stat. Ann. §585:13 (1974) ................. 17

Okla. State Ann. title 21, § 713 (West 1983) ........... 17

Utah Code Ann. § 76-5-201 (Supp. 1989) .............. 17

Wash. Rev. Code Ann. § 9A32.060 (1988). ............. 17

Wisc. Stat. Ann § 940.04 (West 1982) ................. 17

MISCELLANEOUS:

Discrimination on the Basis of Pregnancy: Hearings on

S. 995 Before the Subcomm. on Labor of the Sen.

Comm. on Human Resources, 95th Cong., lst Sess.

COPED 6 vke akc cchpasdennsinewaeseeueaenbeneess 6, 7

EEOC Policy Guide on United Auto Workers v. Johnson

Controls, reprinted in Fair Empl. Prac. Manual

(Heda) GER, TR, BR osc cceeccecccceasensa 11, 14, 21

V

Table of Authorities Continued

. Page

EEOC Policy Statement on Reproductive and Fetal Haz-

ards Under Title VII, reprinted in Fair Empl. Prac.

Manual (BNA) (Oct. 3, 1988)................... 11, 21

Furnish, Prenatal Exposure to Fetally Toxie Work

Environments: The Dilemma of the 1978 Pregnancy

Amendment to Title VII of the Civil Rights Act of

1964, 66 Iowa L. R. 63 (1980).................... 2,4

H. Rep. No. 95-948 (95th Cong., 2d Sess. 1978)........ 3

Legislation to Prohibit Sex Discrimination on the Basis

of Pregnancy: Hearing on H.R. 5055 and H.R. 6075

etore the Subcomm. on Employment Opportunities

of the House Comm. on Education pe | oer 95th

Cong., lst Sess. (1977)

110 Congressional Record 2577 (1964)

110 Congressional Record 2581 (1964) ..........0.....

123 Congressional Record 29662 (Sept. 15, 1977)

123 Congressional Record 29386 (Sept. 15, 1977)

123 Congressional Record 29388 (Sept. 15, 1977).......

Prosser and Keeton on the Law of Torts, (5th Ed. 1984) W.

>

~)

oeeeeeeeeeeeeeee

to bo

Ol te Co

Keeton, D. Dobbs, R. Keeton, D. Owen......... 15, 16

Restatement (Second) of Property § 1.4comment d(1983) 15

Uniform Probate Code § 2-108 (1969) ................. 15

Williams, Firing the Woman to Protect the Fetus: The

Reconciliation of Fetal Protection with Employment

Opportunity Goals under Title VII, 69 Geo. L.J. 641

SE AE Ae Aig OE ae Sater ate 10, 23

INTEREST OF AMICUS CURIAE

Concerned Women for America, (“CWA”) is a national,

non-profit organization representing approximately

600,000 people. CWA’s purpose is as follows:

To preserve, protect and promote traditional Judeo-

Christian values through education, legal defense,

legislative programs, humanitarian aid, and related

activities which represent the concerns of men and

women who beiieve in these values.

CWA is concerned with the unwarranted employment

discrimination against women, as well as the health and

well-being of children, both born and unborn. The child

protection policy at issue in this case is very important in

an industry which has demonstrated ill-effects on unborn

children due to prenatal exposure to lead. CWA believes

that Title VII of the Civil Rights Act of 1964 was broadly

enacted to proscribe discrimination in employment, but

that it is not so broad as to prohibit employers from

adopting policies which protect unborn children from

work-place hazards. Based upon the record in this case,

Concerned Women for America supports the child protec-

tion policy at issue and urges this Court to affirm the

ruling of the Seventh Circuit Court of Appeals. 886 F.2d

871 (7th Cir. 1989).

ARGUMENT

I. EMPLOYER POLICIES WHICH PROTECT UNBORN

CHILDREN FROM BIRTH DEFECTS, BUT APPLY DIF-

FERENTLY TO WOMEN THAN MEN, ARE CONSISTENT

WITH TITLE VII

At issue in this case is whether under Title VII of the

Civil Rights Act of 1964 an employer may adopt a policy

which protects unborn children from birth defects due to

workplace hazards when the policy treats women dif-

ferently from men. Child protection policies like the one in

»

this case do not violate Title VII because, as the legis-

lative history indicates, they are not the type of employer

decisions, that the legislation was enacted to prohibit.

A. Title VII Prohibits Only “Arbitrary And Unnecessary”

Discrimination, And Not All Differential Treatment Of

People.

Title VII of the Civil Rights Act of 1964,! did not

prohibit all discrimination in employment but was enacted

to remove “artificial, arbitrary, and unnecessary barriers

to employment... .” Dothard v. Rawlinson, 433 U.S.

321, 328 (1977). Title VII prohibits discrimination

“because of” or “on the basis of sex.” The legislative his-

tory is virtually silent as to what Congress meant by this

language, because “sex” was added as a protected cate-

gory late in the congressional deliberations and the

amendment was passed without any hearings.* Con-

sequently, what “sex discrimination” was prohibited is not

absolutely clear and it has fallen to the courts to give this

language meaning. This Court has determined that

employment decisions distinguishing between men and

142 U.S.C. § 2000e-2, § 703 (a)(1) reads:

(a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual. or

otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex, or national

origin,

2 [t is generally known that “sex discrimination” was added late in

the deliberations by an opponent of the bill in an effort to defeat the

legislation. 110 Cong. Rec. 2577 (1964) (remarks of Rep. Smith); id. at

2581-82 (remarks of Rep. Green). See Prenatal E.rposure to Fetally

Toxic Work Environments: The Dilemma of the 1978 Pregnancy

Amendment to Title VII of the Civil Rights Act of 1964, 66 Lowa L.

Rev. 63, 74 n.54 (1980).

3

women will be prohibited under Title VII if they are based

on stereotyped characterizations of men and women.

[E|mployment decisions cannot be predicated on

mere “stereotyped” impressions about the charac-

teristics of males or females. [Citation omitted].

Myths and pes habitual assumptions about a

woman’ inability to perform certain kinds of work

are no longer acceptable reasons for es to

employ qualified individuals, or for paying them less

Los Angeles Dep't of Water & Power v. Manhart, 435 U.S.

702, 707 (1978); see also Dothard v. Rawlinson, 433 U.S.

321 (“the federal courts have agreed that it is impermissi-

ble under Title VII to refuse to hire an individual woman

or man on the basis of stereotyped characterizations of the

sexes, .. .”) /d. at 333-34.

Pregnancy Discrimination Act (“PDA”)

Similarly, in 1978, when Congress passed the Preg-

nancy Discrimination Act (“PDA”) clarifying the meaning

of sex discrimination as including discrimination “because

of or on the basis of pregnancy, childbirth, or related

medical conditions,”’ the overwhelming purpose of the

legislation was to prohibit employment discrimination

based on stereotyped characterizations of women because

of pregnancy—the assumption that merely because

women bear children they are marginal workers.+ In

$42 U.S.C. § 2000 (k), § 701(k).

*“As testimony received by this committee demonstrates, the

assumption that women will become pregnant and leave the labor

force leads to the view of women as marginal workers, and is at the

root of the discriminatory practices which keep women in low-paying

and dead-end jobs.” H.R.Rep. No. 948, 95th Cong., 2nd Sess...

reprinted in 1978 U.S. Code Cong. & Admin. News 4749, 4751.

“The assumption that women will become pregnant and leave the

labor market is at the core of the stereotyping resulting in unfavora-

ble disparate treatment of women in the workplace.” 123 Cong. Rec.

29662 (daily ed. Sept. 15, 1977) (statement of Senator Cranston).

4

enacting the PDA, Congress was concerned that women

not be penalized for becoming pregnant and not lose their

jobs simply because an employer thought a pregnant

woman could not, or would not, perform the job.

The vast majority of the PDA’s legislative history is

given to the discussion of 1) overturning this Court’s deci-

sion in General Elec. Co. v. Gilbert,®> where the Court

found that denying fringe benefits to pregnant women did

not constitute sex discrimination in violation of Title VIT,

2) the cost to the employer of implementing this legisla-

tion, and 3) whether abortion must be paid for as a “medi-

cal related condition.”® The thrust of the PDA was to

ensure that a pregnant women’s benefits were equal to

those of her co-workers, so that employers could not use

benefit plans as instruments to force women out of the

workplace because of the employer's stereotyped belief

that women were marginal workers.‘

»°429 U.S. 125 (1976). The references to Gilbert in the legislative

history are extensive. See Prenatal Exposure to Fetaily Toxic Work

Environments, 66 Lowa L.-Rev. at 79 n. 76 (19&8t, ‘erting legislative

history); see also, Newport News Shipbuilding & Dry Dock vy.

EEOC, 462 U.S. 669, 678 (1983).

° The PDA does not require an employer to provide health insur-

ance benefits for abortion except “where the life of the mother would

be endangered if the fetus were carried to term, or except where

medical complications have arisen from an abortion.” 42 U.S.C.

§ 2000e (k). If, under the PDA, an employer is abie to consider the

unborn child in the circumstance of abortion, how much more so, in a

policy that protects the unborn child from birth defects after it is

born.

* “The purpose of the bill is to insure that women who are disabled

by conditions related to pregnancy are compens..ed fairly and given a

fair amount of assistance with their medical bills, in relation to their

fellow employees who are disabled by other medical conditions.” 123

Cong. Rec. 29386 (daily ed. Sept. 15, 1977) (statement by Senator

—

)

Title VII, as amended by the PDA, was meant to

address the general problem of prohibiting women from

the work force because of myth or negative stereotypes,

and was never intended to have any effect on an

employer's decision to adopt policies which would protect

unborn children from workplace hazards.

Toxic Workplaces

Some of the amici have wrongly posited that Congress

was “fully informed” that the PDA would prohibit a policy

of refusing work to a pregnant woman because of the risk

either to her or her child and that Congress “enacted the

PDA without change and with full understanding of its

reach.”* In light of the vast hearing record and legislative

history on the PDA dealing with health benefits and

generalized discrimination against women, this con-

clusion is unwarranted.

While the legislative history indicates that some men-

tion was made of employers’ concerns about toxic work-

places, these passing references must be put in

perspective. Subcommittees of the House and the Senate

held hearings over a five day period, compiling over 1000

pages of statements and testimonies, not including the

hundreds of pages of legislative history created outside of

the hearings. Of nearly 1200 pages of deliberation on this

Williams, sponsor of the Bill).

“We can set night the injustice of unequal health protection for male

and female employees by passing S. 995. This amends Section 701 of

the Civil Rights Act of 1964 by providing that emplovers who offer

disability benefits must offer them to cover pregnancies.” 123 Cong.

Rec. 29388 (daily ed. Sept. 15, 1977) (statement of Sen. Kennedy, co-

spensor of the Bill).

“Br. of Equal kights Advocates, et al., at 1.

6

bill, there were two references to the effects of a toxic

work environment on pregnant women and their children.

The United States Chamber of Commerce made the

first reference in a prepared statement submitted to both

the House and Senate Committees. The Chamber of Com-

merce interpreted the PDA to prevent employers from

refusing work to pregnant employees where such work,

“arguably” posed a threat to the health of either the

woman or her unborn child. While that may be true, that

is not the case before this Court. The threat posed to the

unborn child by prenatal exposure to lead is definite. The

court of appeals found “overwhelming evidence. . . that

an unborn child’s exposure to lead creates a substantial

health risk involving the danger of permanent harm.”

International Union, UAW v. Johnson Controls, 886

*The Chamber of Commerce statement reads in part:

S.995 could present job health problems. For example, it

requires that “women affected by pregnancy, childbirth or

related medical conditions shall be treated the same cor all

employment related purposes.” This would prevent an employer

from refusing certain work to a pregnant employee where such

work arguably posed a threat to the health of either the mother-

to-be or her unborn child. Even though the prospective mother

might arguably f > considered to have assumed the risk by asking

to work in such circumstances, injury to the fetus might zive the

child a cause of action against the employer who, under the bill,

would be powerless to deny the work to the child’s mother during

the pregnancy.

Discrimination on the Basis of Pregnancy, 1977: Hearings on S. 995

Before the Subcomm. on Labor of the Sen. Comm. on Human

Resources, 95th Cong., lst Sess. 482 (1977) [hereinafter “Senate

Hearings on S. 995”}; Legislation to Prohibit Sex Discrimination on

the Basis of Pregnancy: Hearing 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) [hereinafter

“House Hearings on H.R. 5055 and H.R. 6075"). A representative for .

the Chamver of Commerce gave oral testimony to the same effect at

the House hearings.

7

F.2d 871, 883 (7th Cir. 1989). If the threat posed to the

unborn child is arguable, then a policy protecting the child

may be unnecessary and might violate the PDA. But a

threat that is definite makes the policy necessary and is

not proscribed by the PDA.

The only other reference was in a brief exchange

between Senator Hatch and an expert witness testifying

before the Senate Subcommittee. The witness basically

encouraged that more research be conducted on the

effects of industry hazards to all employees and their

unborn children, and not just to women. !2

Out of nearly 1200 pages of statements, testimony and

legislative history, these two references appeared on a

total of four pages.!! Four pages of 1200. It can hardly be

said that Congress was “fully informed” or even on notice

that the reach of the PDA might prohibit an employer

from adopting policies which protect unborn children

from hazardous workplaces.

‘SENATOR HATCH: Do you think there would arise a whole

slew ot OSHA problems occupational, safety and health prob-

lems as a result of pregnant women?

DR. HELLEGRES: 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 preg-

nant working women. However, two 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 Hearings on S. 995, at 67.

'! Senate Hearings on S. 995, at 67, 482; House Hearings on H.R.

5055 and H.R. 6075, at 84, 88.

8

B. Employer Policies Which Protect Unborn Children From

Birth Defects Are Not Arbitrary Or Unnecessary In Man-

ufacturing Processes Which Expose Women To Airborne

Lead.

Title VII, as amended by the PDA, struck at the nega-

tive stereotype that women were marginal workers who

would leave the work force simply because they could have

children. These beliefs potentially kept women out of all

jobs. It is this fact that illuminates why the application of

the child protection policy in this case does not violate

Title VII.

First, it is not a policy which seeks, because of myth or

stereotype, to keep women out of the work place or in low

paying jobs. The purpose of the policy is to protect unborn

children from the very real and documented effects of

prenatal exposure to lead. The lower court found after

reviewing the record that “overwhelming evidence .. .

establishes that an unborn child’s exposure to lead creates

a substantial health risk involving a danger of permanent

harm.” Johnson Controls, 886 F.2d at 883. That unborn

children are affected by in utero exposure to lead is a

medically-proven fact.

It is also a fact that, as this Court has stated, “(t}here is

a natural difference between men and women: only

women have the capacity to bear children.” Hodgson v.

Minnesota, 58 U.S.L.W. 4957, 4961 (U.S. June 26, 1990).

In the area of constitutional law, this Court has “consis-

tently upheld statutes where the gender classification is

not invidious, but rather realistically reflects the fact that

the sexes are not similarly situated in certain circum-

stances.” Michael M. v. Sonoma County Superior Court,

450 U.S. 464, 469 (1981) (upholding California statutory

rape law under which men alone may be criminally liable

for an act of sexual intercourse).

This Court also upheld a federal statute which sub-

jected male naval officers who were not promoted within a

9

certain period of time, to mandatory discharge while not

subjecting female naval officers who were not promoted

within the same period to discharge. Schlesinger v. Bal-

lard, 419 U.S. 498 (1975)!2 (“In contrast [to cases where

gender classifications were based on overbroad gener-

alizations], the different treatment of men and women

naval officers. . . reflects, not archaic and overbroad gen-

eralizations, but instead, the demonstrable fact that the

male and female line officers in the Navy are not similarly

situated with respect to opportunities for professional

service.” /d. at 507-08. There are real differences between

men and women and these differences do not simply dis-

appear because a case is brought under Title VII. The

policy at issue in this case focuses on this “natural dif-

ference” between men and women. There is no myth;

there is no stereotyping.

Second, this policy does not preclude women from

working in all jobs, but only those which expose their

unborn children and future children to the industry dan-

gers.'? We acknowledge that there are and will be jobs

'* See also, Parham v. Hughes, 441 U.S. 347 (1979) (opinion,

Stewart, J. “In cases where men and women are not similarly situ-

ated, however, and a statutory classification is realistically based

upon the diffe-ences in their situation, this court has upheld its

validity.”) Jd. at 354-55.

'S Johnson Controls’ child protection policy prevents women who

are capable of bearing children from working in jobs where there is a

likelihood that their blood lead levels will rise above 30 ug/dl. See

Johnson Controls, 886 F.2d at 876.

“nitially, the child protection policy applied to jobs in “lines of

progression” which contained high-risk positions. But it has been

noted in Respondent's Brief in Opposition, that after the case went to

the Seventh Circuit, Johnson Controls revised its policy eliminating

the “lines of progression” provision. The policy is now applied even

more narrowly, on an individual job-by-job basis. /d. at 8 n. 16.

It should also be noted that Johnson Controls revised its policy

from 30 to 25 micrograms in accord with the Center for Disease

Control's current maximum lead level for umbilical cord blood. Jd.

10

closed to women because of the child protection policies, '4

but that fact does not end the inquiry.

Title VII is a balancing of interests, and the standard

adopted by the federal courts of appeals and the EEOC

(see p. 21, infra), correctly weighs the competing inter-

ests. If no evidence sustains the employer's policy, then in

Judge Posner's words, “I do not see why we should want

to save it from condemnation under Title VII.” Johnson

Controls, 886 F.2d at 904 (Posner, J., dissenting). But on

the other hand, if sufficient evidence sustains the

employer's policy, and both the District Court and the

Court of Appeals found it so, the policy should be upheld.

The child protection policy at issue in this case is not

artificial, arbitrary, or unnecessary. It is not based on

myth or stereotype and does not violate Title VII.

Il. EMPLOYER POLICIES WHICH PROTECT UNBORN

CHILDREN FROM BIRTH DEFECTS, BUT APPLY DIF-

FERENTLY TO WOMEN THAN MEN, SATISFY THE

TITLE VII EXCEPTION FOR BONA FIDE OCCUPA-

TIONAL QUALIFICATIONS

Not only are child protection policies consistent with

the purpose of Title VII to prohibit artificial, arbitrary or

unnecessary discrimination, but they also satisfy the Title

VII exception to employment discrimination. Title VII

prohibits discrimination in employment that is artificial,

arbitrary or unnecessary, but recognizes that in some

situations specific classifications will be appropriate.

Employers are therefore provided with an exception to

14 See Firing the Woman to Protect the Fetus: The Reconciliation of

Fetal Protection with Employment Opportunity Goals under Title

VII, 69 Geo. L.J. 641 (1981) (noting that “at least 100,000 jobs are

closed to women because of policies barring fertile women from

hazardous jobs.”) /d. at 647.

ll

classifications based on sex, religion or national origin

when the classification is a “bona fide occupational

qualification [BFOQ] reasonably necessary to the normal

operation of that particular business or enterprise.” 42

U.S.C. § 2000e-2 (e).

Even though the federal courts of appeals and the

EEOC have varied on the defense applicable in cases

involving gender-based child protection policies (some

apply a business necessity/disparate impact standard

while others require a BFOQ standard), all have come to

the same conclusion that child protection policies are per-

mitted under Title VII. !5

When this Court has addressed gender classifications

under Title VII, it has applied the BFOQ defense. See

Dothard, 433 U.S. 321 (1977) (regulation prohibiting

women from working in contact positions at all-male

prison); Phillips v. Martin Marietta Corp., 400 U.S. 542

(1971) (policy barring women with school-aged children

from employment). But this Court has also noted that

“Congress recognized that classification based on. . . sex

. ., May sometimes serve as a necessary proxy for neu-

'° International Union, UAW v. Johnson Controls, Inc., 886 F.2d

871 ( 7th Cir. 1989) (en banc) (employer's policy sustained under either

business necessity or BFOQ defense); Hayes v. Shelby Memorial

Hosp., 726 F.2d 1543 (11th Cir. 1984) (business necessity der 2):

Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982) (business nece

defense); Policy Statement on Reproductive and Fetal Haza s

Under Title VII, reprinted in Fair Empl. Prac. Manual (BNA) (Oct.

3, 1988) (recognizing a per se violation of VII but applying business

necessity defense). The Commission's position changed in Policy

Guide on United Auto Workers v. Johnson Controls, reprinted in

Fair Empl. Prac. Manual (BNA) (Jan. 24, 1990) to require a BFOQ

defense while maintaining the same elements of the former business

defense.

12

tral employment qualifications essential to the employer's

business.” Western Air Lines, Inc., v. Criswell, 472 U.S.

400, 411 (1985).

The BFOQ defense has been narrowly construed, Dot-

hard, 4383 U.S. at 334, but it is not so narrow as to

preclude employers, in their “normal operations,” from

considering anything but their products, or anyone but

their immediate employees.

The other key words of the defense, “normal opera-

tion” should dispel concern that consideration of all

interests other than the employer's interest in selling

a quality product at the lowest possible price is pre-

cluded. . . . To confine the occupational qualification

defense to concerns with me and product quality

would deny a defense to Johnson Controls even if the

company excluded only pregnant women, as distinct

from all women who might become pregnant, from

making batteries. .. .

Johnson Controls, 886 F.2d at 903-04. (Posner, J., dissent-

ing).

A. Consideration Of The Interests Of Third Parties Is Per-

missible In BFOQ Analysis.

This Court has frequently considered the interests of

third parties when utilizing the BFOQ defense. See Dot-

hard v. Rawlinson, 433 U.S. 321 (1977) (considering the

safety of the inmates and other personnel in upholding a

state regulation barring the hiring of women guards for

“contact positions” at the all-male prisons). In Dothard,

this Court stated that “more is at stake in this case,

however, than an individual woman’s decision to weigh

and accept the risks of employment. . .” /d. at 335. What

“more” was at stake was “the basic control of the peniten-

tiary and protection of its inmates and the other security

personnel.” Id. at 336 (emphasis added). See also Western

13

Air Lines v. Criswell, 472 U.S. 400 (1985) (considering

the safety interest of the flying public in assessing the

airline's age 60 retirement requirement for flight engi-

neers).

It has been argued that child protection policies cannot

come under the BFOQ defense because these policies do

not address the employee's “ability or inability to perform

the work.”!6 Such a narrow reading is not correct. Not

only did the lower court find that child protection policies

could come within the BFOQ defense,!7 but two of the

dissenters in the case also agreed that these policies and

the employer's concern for the interests of third parties

would be within the “normal operations” of the business.

The [BFOQ] defense is applicable to this case and

although it is of limited scope it is not the proverbial

eye of a needle. In particular the “normal operation”

of a business encompasses ethical, legal, and busi-

ness concerns about the effects of an employer's

activities on third parties. An employer might be

validly concerned on a variety of grounds both prac-

tical and ethical with the hazards of his workplace to

the children of his employees.

Johnson Controls, 886 F.2d 871, 904 (Posner, J.. dissent-

ing).

[T]he BFOQ defense need not be narrowly limited to

matters of worker productivity, product quality and

occupational safety. The employer may permissibly

consider the possible risks to (even potential) third

parties in the normal course of business decision

making.

'6 Johnson Controls, 886 F.2d at 909. (Easterbrook, J., dissenting).

'T Td. at 893.

14

Id. at 901-2, n.1 (Cudahy, J., dissenting). The EEOC also

concurred with that opinion. !*

Employers must be able to take the safety interests of

third parties into consideration as being “reasonably nec-

essary to the normal operations.” If in the present situa-

tion employers in a hazardous industry could not consider

the safety of an unborn child as part of their normal

operation, then, as Judge Posner states:

To confine the occupational qualification defense to

concerns with price and product quality would deny a

defense to [the employer] even if the company

excluded only pregnant women, as distinct from all

women who might become pregnant, from making

batteries.

886 F.2d at 903-04 (Posner, J., dissenting). The ironic

outcome would then be that the PDA which was enacted

to help shield unborn children by providing suitable work

and income for their mothers, would be used as a sword

against the children by allowing them to be exposed to

toxic hazards. This simply would not be consistent with

society’s and the government’ stated interest in protect-

ing unborn children.

B. Increasing Recognition Of the Interests Of Unborn

Children Regarding Birth Defects And Life Itself, By

Society And Government, Justifies Consideration Of

Those Interests By Employers In Voluntarily Consider-

ing Workplace Qualifications.

This Court has consistently recognized the State’s

“strong interest in protecting the potential life of the

IS EEOC Policy Guide, at 405:6801 (Jan. 24, 1990).

~

15

fetus.” Maher v. Roe, 432 U.S. 464, 478 (1977),9 and it

would be a strange anomaly that, as society and the law

increasingly recognize the interests of unborn children,

an employer would be precluded from doing the same.

Not only is there widespread demand for more adequate

legal protection of unborn life, and more latitude from this

Court for that legal protection by states, but property,

tort, criminal and other branches of law are giving more

protection to unborn life.

Early on the interests of unborn children were recog-

nized in the areas of property" and inheritance. 2!

Increasingly, the interests of unborn children are being

recognized and protected. Before 1946, tort law rarely

allowed recovery for a child who was injured in utero and

was subsequently born alive.22 One of the reasons was

that “the defendant could owe no duty of conduct to a

person who was not in existence at the time of the inju-

19

See also Webster v. Reproductive Health Services, 492 U.S.

. 106 L.Ed 2d 410, 434 109 S. Ct. (1989); Thornburgh v.

American College of Obstetricians & Gynecologists, 476 U.S. 747,

770 (1986); City of Akron v. Akron Center for Reproductive Health,

Inc., 462 U.S. 416, 428 (1983); Harris v. McRae, 448 U.S. 297. 313

(1980).

“° The Restatement (Second) of Property § 1.4 comment d (1983)

States:

d. Vesting of interest in child in gestation. A child in gestation

who is later born alive is considered a life in being during the

period of gestation in determining whether such child’s interest

in property meets the vesting requirement of the rule against

perpetulties.

*! The Uniform Probate Code § 2-108 (1969) states:

Relatives of the decedent conceived before his death but born

thereafter inherit as if they had been born in the lifetime of the

decedent.

“= See W. Keeton, D. Dobbs. R. Keeton. D. Owen. Prosser and

Keeton on the Law of Torts, $55, 367 (Sth Ed. 1984).

16

rious action.”2° But now a legal duty to the unborn child is

increasingly acknowledged. In every jurisdiction a child,

if born alive, can maintain an action for the consequences

of prenatal injuries, and a wrongful death claim will lie if

the child subsequently dies of the injuries.*4 Further,

courts are increasingly allowing actions where the

harmful contact with the mother occurs before the child’s

conception.=°

While many of the prenatal and preconception injury

causes of action turn on whether the child is born alive, a

majority of states now allow wrongful death claims by the

estates of children who died before birth,°° thereby

“3 Id., (citing, Dietrich v. Inhabitants of Northampton, 138 Mass.

14, 17 (1884)).

24 Prosser and Keeton on the Law of Torts, at 368. See also Exodus

21:22.

“5 See Bergstresser v. Mitchell, 577 F.2d 22 (8th Cir. 1978) (courts of

Missouri would permit an infant born alive to bring an action for

injuries arising out of preconception negligent conduct); Jorgensen v.

Meade Johnson Laboratories, Inc., 483 F.2d 237 (10th Cir. 1973)

(chromosomal damages to mother’s ovum from taking a defective

drug); Renslow v. Mennonite Hospital, 67 Ill.2d 348, 10 Ill. Dec. 484

367 N.E.2d 1250 (1977) (infant can maintain action for injuries sus-

tained as result of negligent transfusion even though it occurred

several years before conception); Enright v. Eli Lilly & Co., 155

App. Div.2d 64, 553 N.Y.S.2d 494 (1990); (cause of action will lie for

granddaughter of woman who ingested DES during the pregnancy of

the claimant's mother).

26 See Eich v. Town of Golf Shores, 293 Ala. 95, 300 So.2d 354

(1974); Summertield v. Superior Court In and For Mancopa County,

144 Ariz. 467, 69% P.2d 712 (1985); Hatala v. Markiewiez, 26

Conn. Supp. 358, 224 A.2d 406 (1966); Worgan vy. Gretfo and Ferrara,

Inc., 128 A.2d 557 | Del. Super. 1956); Simmons v. Howard Univ. 323

F.Supp. 529 (D.D.C. 1971): Porter v. Lassiter, 91 Ga. App. 712, ¥7

S.E.2d 100 (1955); Chrisatogeorqis v. Brandenberg, 55 Ub.2d 368, 304

17

clearly indicating that the child’s interest arises and

becomes valid before birth.

Similar advances are underway in criminal law, as more

states consider fetuses as “persons” under their homicide

statutes. °7

. As society and the courts increasingly recognize the

interests of unborn children, it would be unjust not to

permit employers to do the same. Tort law has acknowl-

edged that employers have a legal duty to unborn chil-

N.E.2d 88 (1973); Britt v. Sears, 150 Ind. App. 487, 277 N.E.2d 20

(1972); Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962): Mitchell vy.

Couch, 285 S.W.2d 901 (Ky. 1955); Wascom v. American Indemnity

Corp., 383 So.2d 1037 (La. App. 1980); Odham vy. Sherman. 234 Md.

179, 198 A.2d 71 (1964); Mone v. Greyhound Lines, Inc.. 368 Mass.

394, 331 N.E.2d 916 (1975); O'Neill v. Morse, 385 Mich. 130. 188

N.W.2d 785 (1971); Verkennes v. Corniea, 229 Minn. 365. 38 N.W.2d

338 (1949); Rainey v. Horn, 221 Miss. 269. 72 So.2d 434 (1954):

O'Grady v. Brown, 654 S.W.2d 904 (Mo. 1983); White vy. Yup, 85 Ney.

527, 458 P.2d 617 (1969); Poliquin v. MacDonald, 101 N.H. 104. 135

A.2d 249 (1957); Salazar v. St. Vincent Hosp., 95 N.M. 150, 619 P2d

526 (1980); Hopkins v. McBane, 359 N.W.2d 862 (N.D. 1984): Werling

v. Sandy, 17 Ohio St.3d 45, 476 N.E.2d 1053 (1985): Evans v. Olson,

550 P.2d 924 (Okl. 1976); Libbee v. Permanente Clinic. 268 Or. 25x,

918 P.2d 636 (1974); Amedio v. Levin, 509 Pa. 199, 501 A.2d 1085

(1985); Presley v. Newport Hosp., 117 R.1. 177, 365 A.2d 748 (1976):

Fowler v. Woodward, 244 3.C. 608, 138 S.E.2d 42 (1964): Vaillan-

court v. Medical Center Hosp of Vt. Inc., 139 Vt. 138, 425 A.2d 92

(1980); Moen v. Hanson, 85 Wash.2d 597, 537 P.2d 266 (1975): Bald.

win Vv. Butcher, 155 W.Va. 431, 184. 8.E.2d 428 (1971).

“7 See Cal. Penal Code § 187 (West Supp. 1986); [ll Ann. Stat. ch.

38, 39-1.2 (Smith-Hurd Supp. 1990); lowa Code Ann. § 707.7 (West

1979); Mich. Comp. Laws Ann. §$ 750.322 (West 1968): Miss. Code

Ann. § 97-3-37 (1973); N.H. Rev. Stat. Ann. §585:13 (1974): Okla.

State Ann. title 21, $713 (West 193); Utah Code Ann.§ 76-35-20]

(Supp. 1989); Wash. Rev. Code Ann. § 9A32.060 (198%): Wise. Stat.

Ann $940.04 (West 19x2),

18

dren, and, while it is the rule that economic factors may

not alone justify a BFOQ defense, as the Government

points out in its brief” “[t]he existence of a reasonably

perceived legal obligation is distinct from a justification

resting solely on economic or solely on moral concerns.

Government Br. at 16-17 n. 13.

C. Policies Which Protect Unborn Children From Birth

Defects Are BFOQs, Particularly When Reduction Of

Employer Liability Is Involved.

Title VII may not allow a cost justification defense for a

discriminatory policy, Los Angeles Dep’t of Water &

Power v. Manhart, 435 U.S. 702, 716 (1978), but this

cannot preclude employers from considering the effect

their product or its production may have on third parties

as one of many factors in making business decisions which

are “reasonably necessary to the normal operations of the

particular business.” Judge Posner has warned in his

dissent that “{wJe should not dismiss the concerns over

tort liability as a narrow, selfish bottom line concern irrel-

evant to the purposes of Title VII.” Johnson Controls, 886

F.2d at 905 (Posner, J., dissenting). He went on to say that

the potential tort liability was an estimation of the cost to

the child for suffering the prenatal injury and “(tJhat is a

social cost that Title VII does not require a company to

ignore.” Jd.

As society’s interest in the unborn child and the child’s

interest itself is increasingly recognized in the legal field

(see p. 14, supra), employers must be able to consider

what effect future liability may take. To do otherwise

would be to place the employer in a position whereby,

ignoring the growing legal duty to the child, employers

open themselves up to litigation in the future, and as

Judge Posner explained:

19

Such a suit would not be preempted by worker's

compensation law because the plaintiff would not be

the worker. The employer would therefore be

exposed to full common law damages, punitive as

well as compensatory. The mother’s own negli-

ence—for if she had been clearly warned of the

azard, but voluntarily became pregnant anyway

and continued to work making batteries, she would

be acting negligently with regard to the fetus—

would not be imputed to the child and therefore

would not reduce the employer's liability [cites omit-

ted]. It would merely make the mother a joint

tortfeasor with the employer. Moreover, she might

not be es: the pregnancy might be involun-

tary, and lead can injure the fetus before the mother

knows she is pregnant.

Johnson Controls, 886 F.2d at 904-05 ( Posner, J., dissent-

ing).

At least one suit of this nature has been tried. See

Security National Bank v. Chloride, Inc.. 603 F.Supp.

294 (D.Kan. 1985) (Child sued battery manufacturer for

prenatal injuries due to lead exposure). In the Chloride

case, the child lost, but the fact is, with every jurisdiction

allowing causes of action for prenatal injuries, the poten-

tial liability is there. As a society we must encourage

offensive rather than defensive measures. stopping

damage before it occurs rather than recalling products

and defending tort litigations after the fact.

Taking this offensive is difficult in the present situation

because of the balancing of the competing interests

involved. The course is a difficult one to chart but the

courts of appeals which have been faced with the chal-

lenge have created a test which adequately balances all of

the interests involved and assures that the policy is nar-

rowly tailored to infringe on the fewest rights. (p. 21,

infra.)

a

20

Ill. THE FEDERAL COUb ~~ JF APPEALS THAT HAVE

ADDRESSED EMPL’ =~, POLICIES THAT PROTECT

UNBORN CHILDREw »« ROM BIRTH DEFECTS HAVE

FOUND THE POLICIES CONSISTENT WITH TITLE VII

With the infinite variety of factual situations Title VII

cases can have, this Court has consistently urged a flexi-

ble approach to interpreting Title VII cases. See Furnco

Construction Corp. v. Waters, 438 U.S. 567, 575-77

(1978); International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977).28 As both the Fourth Circuit

and the EEOC have recognized, child protection policies

do not fall squarely within the Title VII framework and

therefore require a flexibility in the application of the Title

VII theories.

We must start by conceding that the fact situation

[the child protection policy] presents does not fit with

absolute precision into any of the developed theories

.. . . That there would be such fact situations in Title

VII litigation has always been recognized by the

Supreme Court as it has developed and applied the

different theories. The Court has continually admon-

ished, [cites omitted] and indeed demonstrated in its

own decisions, [cites omitted] that these theories

were not expected nor intended to operate with rigid

precision with respect to the infinite variety of factual

patterns that will emerge in Title VII litigation.

“8 See also Western Air Lines v. Criswell where this Court

explained the need for a flexible approach to the application of the

BFOQ under the ADEA.

The diverse employment situations in various industries, how-

ever, forced Congress to adopt a “case-by-case basis . . . as the

underlying rule in the administration of the legislation.” {Cite

omitted]. Congress offered only general guidance on when an

age classification might be permissible hy borrowing a concept

and statutory language [BFOQ defense] from Title VII of the

Civil Rights Act of 1964.

Id. 472 U.S. at 411-12 (emphasis added).

»

~-

Wright v. Olin Corp., 697 F.2d 1172, 1184 (4th Cir. 1982),

These cases do not fit neatly into the traditional Title

VII analytical framework and, therefore. must be

regarded as a class unto themselves.

EEOC, Policy Statement at 405:6615 n.11 (Oct. 3, 1988).

Various federal courts of appeals and the EEOC have

addressed the issue of child protection policies and their

relation to Title VII, all concluding that these policies are

permitted under Title VII.29 Though the courts differ in

their analyses, the elements or questions are basically the

same:

1) That there is a substantial risk of harm to the

employees’ offspring through workplace

exposure to toxic hazards:

2) the transmission of that harm to offspring is con-

fined substantially to employees of one sex: and

3) there are no adequate but less discriminatory

alternatives to the employer's policy.20

These elements appropriately balance the interests of

all parties involved—the employer, the employee and the

unborn and future offspring. The courts have consistently

required that proof of the risk to the unborn and proof that

the risk is transmitted through one parent be objective.

The employer must produce objective evidence of an

essentially scientific nature supported by the opinion

evidence of qualified experts in the relevant scientific

fields. The employer need not prove the existence of a

general consensus on the points within the qualified

“9 See n. 13, supra.

%° Wright, 697 F.2d at 1190-92: Hayes, 726 F.2d at 1548. 1552-53:

Johnson Controls, 886 F.2d at 885: EEOC Policy Guide, at 405:6802

(Jan. 24, 1990).

22

scientific community. Rather, the employer carries

its burden by showing that the body of opinion believ-

ing that significant risk exists is so considerable that

an informed employer could not responsibly fail to act

on the assumption that this opinion might be the

accurate one.

Hayes v. Shelby Memorial Hospital, 726 F.2d 1543, 1548

(1984) (citing Wright v. Olin Corp., 697 F.2d 1172, 1191.

1196 (1982)). Using this formulation, the lower court

found that:

[t]he overwhelming medical ar 1 scientific research

data demonstrating a substanual risk to the unborn

child from lead exposure, found in the record and set

forth in Seciiun Ii, supra, approaches a general con-

sensus within the qualified scientific community, and

certainly suffices to show that within that community

there is a considerable body of opinion that signifi-

cant risk exists.

- Johnson Controls, 886 F.2d at 889.31

With regard to the evidence that the risk is substan-

tially transmitted through women, the lower court found

that “the evidence of risk to the unborn child resulting

from exposure of the father to the lead .evels currently

present in the Johnson Control’s battery manufacturing

factories is, at best, speculative and unconvincing.” /d.

There has been much criticism of the medical community

because the research on lead exposure has focused on

women and the effects on their offspring, while ignoring

the effects of lead exposure on the male reproductive

system and the effects it might have on the mi&le’s off-

*! In addition, the parties in this case agree that there is a substan-

tial risk to the unborn child from exposure to lead. See Johnson

Controls, 886 F.2d at 879 ( citing the appellate briefs of the UAW and

Johnson Controls),

ee oe ac

23

spring.* This lack of research should not. however, lead

us to ignore the clear evidence of the effect on unborn

children that comes from direct maternal exposure to lead

merely because it might lead to differentia] treatment in

the workplace. Instead, the logic of the Hayes court

should be adopted.

In those instances in which scientific evidence points

to a hazard to women, but no scientific evidence

exists regarding men, an employer may be allowed to

adopt a suitable policy aimed only at women. As

additional veenares on men becomes available, how-

ever, the employer must adjust the policy or risk

running afoul of Title VII.

Hayes, 726 F.2d at 1549.

CONCLUSION

Based on the record, this Court should affirm the deci-

sion of the Seventh Circuit Court of Appeals, granting

summary judgment toJohnson Controls and upholding its

policy which protects unborn children from birth defects.

The child protection policy in this case is not artificial,

arbitrary or unnecessary. It narrowly applies only to

those jobs which would expose women, their unborn and

future children to lead levels that have been clearly shown

to cause damage to the unborn child. This type of policy

does not violate Title VII as it is based upon objective

medical evidence, not myths or stereotypes.

The policy is also consistent with society's and the legal

system's increasing awareness and recognition of the

interests of unborn children. It has been said that “justice

requires that the principle be recognized that a child has

* Firing the Woman to Protect the Fetus:, 69 Geo. L. Rev. at 661:

Hayes, 726 F.2d at 1549.

24

the legal right to begin life with a sound mind and body. "38

Child protection policies analyzed under the standard

created and used by the Courts of Appeals and endorsed

by the EEOC will do just that, while at the same time

protecting women from arbitrary application of child pro-

tection policies in other industries where no proof of dan-

ger has been shown.

Date: July 19, 1990

Respectfully submitted.

JANE E. Hapro*

JORDAN W. LoRENCE

CIMRON CAMPBELL

MarK N. Troosnicx

Concerned Women for America

370 L’Enfant Promenade, S. W.

Suite 800

Washington, D.C. 20024

(202) 488-7000

“Counsel of Record

WENDELL R. Birp

1150 Monarch Plaza

3414 Peachtree Lane

Atlanta, Georgia 30326

(404) 264-9400

Attorneys for Amicus Curiae

*3 Smith v. Brennan, 31 N.J. 353, 364, 157 A.2d 497, 503 (1960).