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

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

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 NATIONAL SAFE

WORKPLACE INSTITUTE AS

AMICUS CURIAE SUPPORTING RESPONDENT

JAMES D. HoLzHAver

Counsel of Record

Danuta BEMBENISTA PANICH

Mayer, Brown & Platt

190 South LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

Attorneys for Amicus Curiae

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

" BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Where an employer policy excluding all fertile

women from certain jobs because of concerns for the

health of any fetus that those womer may conceive is

challenged as unlawful gender discrimination violative of

Title VII of the Civil Rights Act of 1964:

a. does the plaintiff or the defendant bear the bur-

den of proving that the employer’s justification for

excluding women from certain jobs meets Title VII

standards?

b. is that justification judged under the explicit

provisions of the statutory affirmative defense for

bona fide occupational qualifications or is the em-

ployer entitled to assert an additional, broader “‘legiti-

mate business justification” defense not explicitly

stated in the statute?

c. if only the statutory bona fide occupational quali-

fication defense is available, does a fetal protection

purpose come within the bounds of that defense?

2. Are scientific animal studies insufficient as a matter

of law to demonstrate a significant risk to humans due

to the exposure to a toxic substance?

il

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................

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

INTEREST OF THE AMICUS CURIAE .....

INTRODUCTION AND SUMMARY

Cait usessncesercccces.

IEE IEEE ET TTT ETE EEE

l.

Il.

ITI.

The “Business Necessity” Test Applied By

The Courts Below Is Inapplicable ......

The Bona Fide Occupational Qualification

Exception May Apply To A Well-Founded

Fetal Protection Policy ................

The Court Of Appeals Properly Upheld

The District Court’s Award of Summary

eee ec wecescececes

IV. Federal Safety Policy Requires That In

Narrow Circumstances Fetal Protection

Policies Be Permitted .................

Nee i weccees

10

16

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ili

TABLE OF AUTHORITIES

CASES: PAGE

Dothard v. Rawlinson, 433 U.S. 321 (1977) .. 8,9, 10, 13

Furnco Construction Corp. v. Waters, 438 U.S. 567

SE 5909645 604500040446) dnsnedensesensuos 9

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .. 7

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

(llth Cir. 1984) ......... 0.0... cece eee eee. 6

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

435 U.S. 702 (1978) ...... 0.0 7

McDonnell Douglas v. Green, 411 U.S. 792 (1973) . 9

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

CED) ie occcsccsccsccccccccccscsceseseces 9, 10

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

U.S. 248 (1981) 2... eee eee 9

Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224

(Sth Cir. 1976) 2.2.02... 00000 cee eee eee, 19

Wards Cove Packing Co. v. Atonio, 109 8. Ct. 2115

0.) 6, 7,8

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

SNE $060 0m 0 6656059545565 50055 0065404088" 13, 19

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

DED Sea cccoeecsoenesstsssenacenceseseveces 6

Zuniga v. Kleberg County Hospital, 692 F.2d 986

(Sth Cir. 1982) 2.2.0... 0... ccc eee eee 6

STATUTES:

Occupational Safety and Health Act of 1970,

29 U.S.C. § 651 et seg. ...... 00.000, passim

Titie VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seg. 2.0.0... 000000. passim

iv

MISCELLANEOUS:

N. Ashford, Crisis In The Workplace (1976) ...

Coleman & Dickinson, “The Risks of Healing: The

Hazards of the Nursing Profession,” in Double

Exposure: Women’s Health Hazards on the Job

and at Home 49 (W. Chavkin, ed., 1984)...

Dietrich, et al., ““Low Level Fetal Lead Exposure

Effect on Neurobehavioral Development in Early

Infancy,” 80 Pediatrics 721 (1987) ..........

M. Green & N. Waitzman, Business War On The

i Ee OE oe os ona chk eebueawaunne

D. McCaffrey, OSHA and the Politics of Health

eagusation GG-47 (IGGR) oo... esc cccccsccccess

Needleman & Catsonis, “‘Low Level Lead Expo-

sure and the IQ of Children,” 203 J. Am. Med.

rc RB Pree err ree

D. Nelkin & M. Brown, Workers At Risk 149-162

EGR ia ea nner GMMR nore emnealy weu umn ogee ue

J. Page & M. O’Brien, Bitter Wages (1973) ....

R. Posner, Economic Analysis of Law 311-312 (3d

I Eon cecn ety esis studs vieetheraeeens

Shukla, et al., ‘‘Fetal and Infant Lead Exposure:

Effects on Growth in Stature,” 84 Pediatrics

De Sen. . cs cancun kwcepeediws kewkhGene

Sunstein, “‘Legal Interference with Private Prefer-

ences,” 53 Univ. Chi. L. Rev. 1129, 1164-1169

EE nse ss bob dees 0s oka e Rosana

W. Viscusi, Employment Hazards 94-96 (1979) ...

W. Viscusi, Risk By Choice 156-162 (1983) .....

15

20

14, 15

14

14

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No. 89-1215

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, ET AL.,

Petitioners,

Vs.

JOHNSON CONTROLS, INC.,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF FOR THE NATIONAL SAFE

WORKPLACE INSTITUTE AS

AMICUS CURIAE SUPPORTING RESPONDENT

The National Safe Workplace Institute respectfully

submits this brief as amicus curiae in support of the

respondent.

INTEREST OF THE AMICUS CURIAE

The National Safe Workplace Institute (the ‘“Institute”’)

is a national, not-for-profit research and education organ-

ization devoted to issues of workplace safety and health.

' The written consent of each of the parties to the filing of this

brief has been filed with the Clerk.

=

The Institute has prepared and published research and

reports on a variety of workplace safety issues, investi-

gated and intervened in workplace safety disputes, pro-

vided expert testimony to congressional hearings, acted

as an international clearinghouse for information on job

safety issues, and encouraged corporate and government

entities to be fully accountable for workplace safety and

to adopt and require safe work practices.

The Institute’s work has been widely recognized as ef-

fective and important. Gerald Scannell, the Administrator

of OSHA, has referred to the Institute as “‘the social con-

science of the nation on job safety issues.’’ William E.

Brock, assessing the impact of his tenure as Secretary

of Labor, said that “‘[alIny accomplishments we made to

improve workplace safety were due in large measure to

[the Institute].’"” ABC News characterized the Institute

as “the most effective and independent organization on

worker safety issues in the U.S.” As a result of its ef-

forts, the Institute has received the J. William Lloyd, MD,

Award from the United Steelworkers of America, the

William Steiger Memorial Award from the American Con-

ference of Industrial Hygiene, and a special service award

from the Engineering News-Record.

The Institute’s research and advocacy has included

substantial work in the area of fetal protection policies.

Two of the Institute’s directors recently appeared on the

MacNeil-Lehrer News Hour’s program on the Johnson

Controls case. The Institute strongly supports equal op-

portunity for women. It agrees with petitioners and their

amici that fetal protection policies may be used as a

pretext for sex discrimination and it condemns such dis-

crimination. But it also acknowledges that some fetal pro-

tection policies are not grounded in discrimination. The

Institute believes that an open-minded investigator would

be compelled to acknowledge that current medical re-

= Ss

search indicates that certain toxins in the workplace—

especially lead—appear to directly damage developing

fetuses in utero. That damage is different in kind and

degree (and apparently occurs at much lower exposure

levels) than any direct harm, reproductive or otherwise,

to women and men who are exposed to the toxins. To

the degree that such medical evidence merely reflects

research bias, it should be condemned and ignored. But

to the extent that it reflects the fact that fetuses only

develop in utero in women, it must be heeded.

Much of the Institute’s work involves trying to increase

corporate accountability for workplace safety and health.

To hold employers accountable, they must be given discre-

tion to respond to health and safety hazards. That should

be true whether the hazards are to employees, customers,

bystanders, or children. This Court should not interpret

Title VII or the Pregnancy Discrimination Act in such

a way as to undermine the equally important interests

served by the Occupational Safety and Health Act.

INTRODUCTION AND

SUMMARY OF ARGUMENT

At boitom, petitioners’ position is clear and simple: they

claim that Title VII and the Pregnancy Discrimination Act

prohibit employers from excluding women—even pregnant

women—from jobs that pose a substantial risk to the de-

veloping fetus. In their view, Title VII requires employers

to allow women to balance the health risks to unborn

children against the benefits of the particular job.2 As the

2 Petitioners’ interpretation of Title VII would preclude any dif-

ferential treatment of women that an employer might propose to

deal with fetal risks. Thus, if sound medical judgment warranted

use of respirators or other protective devices by women only, an

employer policy requiring that use would be deemed unlawful.

ailim

amicus brief for the American Civil Liberties Union and

others points out, the choice may very well be between

an uncertain risk of injury to unborn and perhaps un-

contemplated children on the one hand, and a substan-

tial reduction in income, economic well-being, and possibly

even health (due to loss of health insurance) on the other.

Respondent, while not disputing the fact that substan-

tial competing interests are at stake, disagrees that the

choice must be left to the employee. It argues that under

narrow circumstances—where workplace exposure results

in a demonstrable and substantial fetal risk and no rea-

sonable alternatives exist—an employer should be per-

mitted to exclude women capable of bearing children from

jobs involving exposure to those toxins.

This Court is asked to choose between those alternative

interpretations of federal law, a difficult task from the

standpoint of both public policy and statutory interpreta-

tion. That task is not made any easier by arguments that

ignore relevant differences between the reproductive f nc-

tions of men and women, that claim that the tragic ef-

fects of lead exposure on developing children are really

not that bad, or that assert that Johnson Controls should

“simply” eliminate the problem by perfecting a lead-free

battery. Although lead exposure at some levels might

very well damage both sperm and ovum, and thus cause in-

fertility and perhaps birth defects, the biological fact that

fetuses develop only in women means that there is another,

qualitatively different opportunity for fetal injury when

pregnant women are exposed to toxins such as lead. The

brain and nervous system develop in utere, in women. In

young children and developing fetuses, the brain and nervous

system are especially vulnerable to the effects of lead. John-

son Controls’ policy is intended to protect children from

the serious effects of direct exposure to lead in utero.

=

Thus, the difficult choice required by this case is a real

one. The question, as petitioners imply, is one of who

should make that choice. Does Title VII, and sound public

policy, require that the choice be left to the individual

employees? Or does federal law permit—or perhaps re-

quire—employers to make that choice for them? The Na-

tional Safe Workplace Institute believes that employers

must be held fully accountable for workplace injuries and

illnesses and thus must be given discretion to make safe-

ty and health decisions, even when those choices are con-

trary to the economic interests of employees. That philoso-

phy is embodied in the Occupational Safety and Health

Act. Employers in this country are not free to offer high

wages in return for increased health and safety risks. Em-

ployees are not free to accept an unsafe workplace in

return for the higher wages employers might be willing

to pay to avoid the cost of safety. For good reason, fed-

eral policy does not leave these choices to the workers.

Federal statutes should be interpreted, whenever possi-

ble, harmoniously. In light “of the requirements and the

underlying policy of the Occupational Safety and Health

Act, it would be disharmonious in the extreme to inter-

pret the bona fide occupational qualification exception—

and the concept of “normal operation” of a business—to

exclude concerns over safety and health. Under peti-

tioners’ interpretation, in assessing what is “reasonably

necessary to the normal operation of [its] business,” an

employer can only take into account what is necessary

io get the job done, and not any impact the job might

have on the health or safety of the employee or others.

But to ignore health and safety risks is distinctly abnor-

mal and contrary to federal policy. Neither the language

nor the intent of Title VII requires such an interpreta-

tion.

aniline

The Institute believes that in the rare case where ex-

posure to toxins in the workplace results in a significant

health risk only to women—or only to men, or only to

members of some other group—and no reasonable alter-

natives exist, employers should be permitted to exclude

members of the affected group from jobs where such ex-

posure is inevitable. This appears to be such a rare case.

ARGUMENT

I. The ‘Business Necessity’’ Test Applied By The Courts

Below Is Inapplicable.

Following the lead of the Fourth, Fifth and Eleventh

Circuits,? both the district court and the court of appeals

held that Johnson Controls’ fetal protection policy should

be evaluated under the “business necessity” test or de-

fense.4 But the business necessity test—as to which the

burden of proof is on the plaintiffs—was never intended

to apply to facially discriminatory employment practices.

This Court has consistently applied the business neces-

sity test only to cases involving facially neutral employ-

ment practices that have a disparate impact on particular

groups. See, e.g., Wards Cove Packing Co. v. Atonio, 109

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

v. Kleberg County Hospital, 692 F.2d 986 (5th Cir. 1982); Hayes

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

4 The district court characterized business necessity as a “‘de-

fense,"’ which Johnson Controls would have to prove. Pet. App.

1l7a. After it reached that conclusion, this Court decided Wards

Cove Packing Co. v. Atonio, 109 S. Ct. 2115 (1989), which made

it clear-that business necessity is part of the test for discrimina-

tion, and that plaintiffs bear the burden of proof on this issue.

The court of appeals therefore held that the UAW had the burden

of proving that the Johnson Controls policy was not justified by

business necessity. Pet. App. 29a-30a.

Pe

S. Ct. 2115 (1989), Griggs v. Duke Power Co., 401 U.S.

424 (1971), and intervening disparate impact cases.

The court of appeals reasoned that the framework used

by this Court for evaluating disparate treatment cases

“was not intended to be an inflexible rule” (Pet. App. 21a)

and that fetal protection policies should be analyzed under

the business necessity test because they “‘involve[ | moti-

vations and consequences most closely resembling a dis-

parate impact case.” /d. at 23a. But the consequence of

the fetal protection policy—exclusion of nearly all women

from certain jobs—even more closely resembles the con-

sequence of disparate treatment, and benign motivation

has never been thought to justify a reduced level of

scrutiny in cases of clear discrimination. Thus, in Los

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

702 (1978), this Court declined to find that the employer’s

practice of requiring women to make larger pension fund

contributions was justified by the fact that women, as a

class, live longer than men. The employer argued that

pension benefits were more costly for women than for

men—the kind of motivation that might be accepted in

a disparate impact case. But the Court held that such a

motivation could not save a facially discriminatory policy.5

5 The issue in Manhart was whether the employer’s policy was

facially discriminatory. The employer poten that it was not,

because women lived longer than men and the cost (and value)

of their pension benefits was thus greater. For present purposes,

it is important that the Court did not apply business necessity

analysis on the ground that the economic motivation for the policy

more closely resembled that of a disparate impact case. Instead,

it applied disparate treatment analysis. Manhart did not involve

exclusion of women from jobs and thus was not (and could not

be) evaluated under the bona fide occupational qualification excep

Lion.

mailies

The differences in analysis required for disparate im-

pact and disparate treatment claims is perhaps best seen

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

Alabama Board of Corrections required that applicants for

prison guard positions meet certain minimum height and

weight requirements and also prohibited women from

working in “contact positions’ in maximum security

prisons for men. This Court applied the business necessity

test to the former requirement, which was facially neutral

but had a disparate impact on women. But it held that

the latter requirement—which was facially discriminatory—

could be justified, if at all, only under the bona fide oc-

cupational qualification exception applicable to disparate

treatment cases. The motivation for both parts of the

Alabama rule was the same: a belief that only burly indi-

vidvals—and in some cases, only burly men—could handle

potcntially violent and abusive prison behavior. But the

required analysis was different because one claim alleged

disparate impact and the other disparate treatment.

It would be particularly inappropriate to apply business

necessity analysis to facially discriminatory employment

practices following this Court’s decision in Wards Cove.

There, the Court explained that the burden of proving

that an empioyment practice was not justified by business

necessity “must remain with the plaintiff, for it is he who

must prove it was ‘because of such individual’s race, color,

[sex],’ etc., that he was denied employment opportunity.”

109 S. Ct. at 2126. The rule placing the business neces-

sity burden on the plaintiff ‘“‘conforms to the rule in dis-

parate-treatment cases that the plaintiff bears the burden

of disproving an employer’s assertion that the adverse

employment action or practice was based solely on legiti-

mate neutral considerations.’ [bid. (emphasis added).

juillines

But in a disparate treatment case, once the plaintiff

proves that the employer’s action ‘‘was [not] based sole-

ly on legitimate neutral considerations,” the plaintiff has

fulfilled his burden and has proven that the action was

“because of such individual’s * * * sex.” At that point,

the burden of proving that the employment practice was,

nevertheless, not unlawful is on the defendants. See, e.g.,

Price Waterhouse v. Hopkins, 109 S. Ct. 1774 (1989) (once

plaintiff proves discrimination, employer has burden of

proving that it would have taken the same action absent

discrimination); Dothard, 433 U.S. at 332-337 (once

disparate treatment is established, burden is on defendant

to demonstrate applicability of the bona fide occupational

qualification exception).

In this case, there is no question that Johnson Controls’

policy is facially discriminatory. It openly imposes a re-

striction on women that it does not impose upon men.

Once that has been shown, the plaintiff has established

far more than a weak prima facie case of disparate treat-

ment of the sort examined in Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248 (1981), and McDonnell

Douglas v. Green, 41i U.S. 792 (1973).® Instead, the plain-

tiff has established discrimination based on sex, and it is

for the defendant to prove that some reason exists for

6 When a plaintiff establishes a weak prima facie case under the

Burdine framework, the defendant need only articulate a legiti-

mate nondiscriminatory reason for its action and the burden re-

mains on the plaintiff to show that the defendant’s action was

based not on that reason but instead on discriminatory reasons.

450 U.S. at 253. That is the framework that should not be re-

garded as “an inflexible rule.” Furnco Construction Corp. v.

Waters, 438 U.S. 567, 576 (1978). Once there is “smoking gun”’

evidence (or an acknowledgment) of disparate treatment, the plain-

tiff need prove no more and the burden of proving any exception

or defense is on the defendant.

=

departing from the usual rule that such discrimination is

unlawful.

Il. The Bona Fide Occupational Qualification Exception

May Apply To A Well-Founded Fetal Protection Policy.

A facially discriminatory employment practice may never-

theless be lawful if ‘“‘sex * * * is a bona fide occupational

qualification reasonably necessary to the normal operation

of that particular business or enterprise.”” Section 703(e),

42 U.S.C. § 2000e-2(e). The burden of proving that this

“BFOQ” exception applies is on the employer. Price

Waterhouse, 109 S. Ct. at 1789; Dothard, 433 U.S. at 333.

In addition io holding that the policy met the require-

ments of the business necessity defense, the court of ap-

peals held that “Johnson Controls’ fetal protection policy

could be upheld under the bona fide occupational qualifica-

tion defense.”’ Pet. App. 42a.’

Under the BFOQ defense, the issue in this case is

whether the exclusion of women from the battery line,

first, is “‘reasonably necessary” and, second, relates ‘‘to

the normal operation of” the business of Johnson Con-

trols’ battery division. There is little disagreement as to

the proof necessary on the first issue. It would not be

“reasonably necessary” to exclude anyone from the bat-

tery line if there were reasonable alternatives to exclu-

sion. If the use of protective devices, reasonable changes

in operations, or application of engineering controls would

make the battery line safe for all workers, they should

be required, notwithstanding the fact (within limits) that

7 In the district court, Johnson Controls had also argued that the

BFOQ defense applied, but because it did not view the company’s

policy as facially discriminatory, the court did not reach the BFOQ

issue. Pet. App. 116a_ n.5.

=

they might impose some costs on the employer. It would

also not be “reasonably necessary” to treat women differ-

ently from men if the objective of the company’s policy

did not require that discrimination, i.e., if the goal of fetal

protection equally required the exclusion of men. Thus the

court of appeals, the United States and the Equal Em-

ployment Opportunity Commission as amici curiae, the

petitioners and the respondent essentially agree that the

company must prove that there are no reasonable alter-

natives and that the risk of fetal injury at the lead levels

involved is substantially greater or more probable when

women are exposed to lead than when men are exposed

to lead.

The more contentious legal issue in this case is whether

fetal protection relates to the “normal operation’’ of

Johnson Controls’ business. Petitioners assert (Br. at

29-33) that the BFOQ defense permits employers to ex-

clude women from jobs only when women are not capable

of performing the job duties. Under their theory, even

women who are actually pregnant cannot be excluded

from the production line or treated differently from men

(e.g., required to use respirators or other protective

devices) unless they are unable to “‘produce batteries as

efficiently and proficiently as anyone else.” Jd. at 31.

The issue, in petitioners’ view, is one of persona. auton-

omy. Although employers must be permitted to decide

‘“‘what skills employees must possess to perform a partic-

ular job,” (Pet. Br. at 33), “where the employer’s reasons

for excluding workers [relate to] non-job-performance re-

lated concerns * * * there is no _ason for permitting an

employer decision as to what is best for an employee to

override the contrary, and personal, decision of the em-

ployee whose job rights would be adversely affected by

the employer’s decision.” /d. at 34. In their view, the par-

ticular employee alone should be permitted to determine

“the appropriate relative balance between [her] employ-

ment interests and fetal health concerns ***.” Jd. at

37-38.

It is at this point that the Institute must respectfully

disagree with petitioners. The BFOQ exception is not SO

narrowly drawn as to preclude consideration of all “‘non-

job-performance related concerns.” And, as a matter of

federal safety and health policy, there is every reason to

permit—and even to require—employers to decide what

is best for employees and to override their personal deci-

sions as to the appropriate balance between their employ-

ment or economic interests and safety concerns. If we

are to hold employers accountable for workplace safety

and health, we must give them the authority to take such

steps as are reasonably necessary to ensure safety and

health.

As Judges Posner and Cudahy point out in their dissent-

ing opinions below, and as the United States and EEOC

argue as amici curiae, there is nothing in the language

of the BFOQ exception that limits employers to perform-

ance-related concerns.*® To the contrary, the statute per-

mits an employer to discriminate if “reasonably neces-

sary” for the “normal operation” of the business. And

it would be distinctly abnormal for an employer to

operate its business without taking into account the ef-

fects it might have on the health and safety of employees

and third parties, including fetuses. As Judge Posner put

it, “{i]t is possible to make batteries without considering

the possible consequences for people who might be injured

® The Pregnancy Discrimination Act did not umit the scope 0

the BFOQ wed at all. Instead, it made it clear that the defense

would apply to pregnancy (and potential pregnancy).

= =

in the manufacturing process, just as it would be possi-

ble to make batteries with slave laborers, but neither

mode of operation would be normal.” Pet. App. 64a.

‘his Court has recognized that concern for the well-

being of others may support application of the BFOQ de-

fense. In Dothard, 433 U.S. at 336, the Court held that

because employment of women in “contact positions’’ at

male penitentiaries ‘would pose a real threat * * * to the

basic control of the penitentiary and [the] protection of

its inmates and other security personnel * * * the District

Court was in error in ruling that being male is not a bona

fide occupational qualification for the job * * *.” If Title

VII permits the exclusion of female prison guards to pro-

tect the safety of inmates, it should also permit the ex-

clusion of women to protect the health of fetuses. See also

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

in which the Court recognized that age (under 60) might

be a BFOQ for an airline flight engineer if it were shown

that public safety would be impaired by allowing older

engineers.

Perhaps the BFOQ exception could be read to apply

only to situations where being of one sex or the other

is reasonably necessary to the performance of job duties,

but it should be read more broadly to permit considera-

tion of other concerns. If nondiscrimination were the only

relevant federal policy, perhaps petitioners’ interpretation

might have merit. However, nondiscrimination is not the

only relevant policy. There is also an important federal

policy of promoting occupational safety and health. That

policy not only favors respondent’s interpretation of the

BFOQ exception, but it also undermines the philosophical

foundation of petitioners’ argument.

The Occupational Safety and Health Act (“OSH Act”)

flatly rejects the notion that employees have the right

thy

_

to balance their employment/economic interests against

their safety and health concerns and to decide on their

own, without employer “interference,” what risks to take.

Opponents of the OSH Act have argued that the market

should govern, and that employees should be left free to

decide how much workplace safety and health to “buy.”’

See, e.g., W. Viscusi, Risk By Choice 156-162 (1983); R.

Posner, Economic Analysis of Law 311-312 (3d ed. 1986).

In their view—like that of petitioners—employees should

be permitted to sacrifice their own safety for higher

wages by accepting, for example, a higher-paying job at

a ‘dirty’ factory over a lower-paying job at a “clean”

factory.

But Congress rejected that approach when it adopted

the OSH Act. That statute recognizes that there are sound

reasons for not permitting employees to make these

choices on their own. To begin with, employees often lack

the technical information and skills necessary to evaluate

the risks properly. W. Viscusi, Risk By Choice 59-75; D.

Nelkin & M. Brown, Workers At Risk 149-162 (1984); M.

Green & N. Waitzman, Business War On The Law 14-16

(1981). Even with complete information, when it comes

to evaluating infrequent future hazards, an unrealistic “‘it

won’t happen to me” attitude often prevails. D. Nelkin

& M. Brown, supra at 94-96; M. Green & N. Waitzman,

supra at 16. It is particularly difficult to accurately bal-

ance uncertain future risks against present needs. D.

McCaffrey, OSHA and the Politics of Health Regulation

46-47 (1982); Sunstein, “Legal Interference with Private

Preferences,” 53 Univ. Chi. L. Rev. 1129, 1164-1169 (1986).

And even when workers properly assess the risks to them.

selves, they may not properly assess externalities and ef-

fects on others. W. Viscusi, Employment Hazards 94-96

(1979). There are other reasons for preferring federal reg-

= =

ulation of workplace safety and health to market forces

and “free choice,’ but suffice it to say that Congress has

decided that, as a matter of federal policy, workers do

not have the right to decide on their own how much safe-

ty they want to “‘buy.”’

The OSH Act not only authorizes the Occupational Safe-

ty and Health Administration (“OSHA”) to promulgate

mandatory health and safety standards, but it also re-

quires employers to provide safe workplaces. OSH Act Sec-

tion Aa)l; 29 U.S.C. § 654(aX1). Even if a particular hazard

is not covered by an OSHA standard, this “general duty

clause” requires employers to follow safe practices.!° In

addition, scores of federal and state statutes and common-

law provisions hold employers accountable for the safety

of employees, customers, bystanders and others, including

fetuses. Surely petitioners and many of their amici might

join in a lawsuit if a fetus were injured or killed because

of the unsafe practices of an employer. In these circum-

stances, it defies common sense—and federal policy—to ar-

gue that the concept of ‘normal operation”’ of a business

cannot take into account harm that might come to em-

plovees or their future children.

° See, generally, R. Posner, supra at 311-312; M. Green & N. Waitz-

man, supra, at 8-21, 95-114; N. Ashford, Crisis In The Workplace

(1976); J. Page & M. O’Brien, Bitter Wages (1973).

10

Moreover, the OSH Act is clearly intended to set only mini-

mum standards for workplace health and safety. We completely

disagree with the implication of the amicus brief of the American

Public Health Association, et al., that it is somehow inconsistent

with the OSH Act and bad policy to permit individual employers

to set health and safety standards more stringent that those re-

quired by OSHA regulations. The general duty clause and the en-

tire thrust of the OSH Act is to the contrary.

>

ditions

Ill. The Court Of Appeals Properly Upheld The District

Court’s Award Of Summary Judgment.

Once it is recognized that a well-founded fetal protec-

tion policy might come within the bona fide occupational

qualification exception, all that is left of this case is to

determine whether Johnson Controls’ policy was reason-

ably necessary to achieve its objective. As noted earlier

(and as petitioners agree), that requires a determination

of whether Johnson Controls demonstrated (1) that there

were no reasonable alternatives to its policy and (2) that

there was a substantial risk of injury to the fetus caused

by lead exposure of women that would not be caused by

exposure of men.

In the typical case, the question of alternatives would

be critical. The Institute strongly believes that if it is

reasonably possible to make the workplace safe for a//

employees, both the OSH Act and Title VII require em-

ployers to do so. Employers may not simply reduce ex-

posure levels only so far as necessary to protect the least

vulnerable sex or group, while excluding the rest. Rather,

exposure must be reduced to the lowest level reasonably

possible. Only if, at that level, the health or safety of a

particular group is still impaired may an employer exclude

that group.

In this case—under either the district court’s business

necessity theory or the BFOQ rationale that respondent

also asserted in the district court—Johnson Controls had

the burden of proving the lack of reasonable alternatives.

It offered substantial evidence regarding some measures

it tried and others it considered. Pet. App. 3a-12a. In

the court of appeals, petitioners did not challenge the

finding of no reasonable alternatives and (perhaps for

that reason) it did not include that issue among the ques:

= =

tions it presented to this Court. Jd. at 37a-38a; Pet. i. Ac-

cordingly, this Court should now regard that issue as con-

clusively resolved in respondent’s favor.

The question of whether Johnson Controls has proven

that the risk of fetal injury is substantially greater when

women are exposed to lead than when men are exposed

is somewhat more complex. Once again, the district court

(under an erroneous legal theory) held that Johnson Con-

trols had met its burden of proof on this issue. Petitioners

did challenge that holding in the court of appeals. In af-

firming the district court’s business necessity ruling, the

court of appeals held that petitioners had the burden of

proof on this issue and failed to sustain it. If it had gone

no further, we would ordinarily agree with the United

States that this Court should reverse the court of appeals’

decision and remand for reconsideration of this issue with

the burden properly allocated to Johnson Controls. In this

case, however, the court of appeals’ erroneous allocation

of the burden of proof did not seem to be critical to the

outcome of this case. That much is evident from the

court’s characterization of the evidence:

Because scientific data available as of this date re-

flects that the risk of harm to unborn children is con-

fined to fertile female employees, the sex-based dis-

tinction present in Johnson Controls’ fetal protection

policy is based upon real physical differences between

men and women relating to childbearing capacity and

is consistent with Title VII.

Pet. App. 36a.

Moreover, the court of appeals did not stop there. It

went on to conclude that Johnson Controls’ ‘policy could

also be upheld under the bona fide occupational qualifica-

tion defense.”’ Pet. App. 42a. The court recognized that the

burden of proof under the BFOQ defense was on the com-

= =

pany. Jd. at 52a. And with that burden in mind, the court

repeatedly held that the evidence showed that there is

a special risk of fetal harm when women are exposed to

lead. Pet. App. 52a-59a. The court expressly held that

“there is clear and unrefuted evidence in the record of

a substantial and irreversible risk to the unborn child’s

mental development from lead exposure in the womb.”

Id. at 53a (emphasis added). The court also held that

Johnson Controls’ evidence demonstrated that exposure

to lead in the blood at the levels regarded as reasonably

safe for adults is not reasonably safe for unborn children

in the womb. /d. at 53a-54a. In the end, the court held

that “Johnson Controls has met its burden of establishing

that the fetal protection policy is reasonably necessary to

industrial safety.” Jd. at 58a-59a.

IV. Federal Safety Policy Requires That In Narrow Cir-

cumstances Fetal Protection Policies Be Permitted.

Although we file this brief in support of the respondent,

in many respects the National Safe Workplace Institute

agrees with petitioners and with the amicus brief filed

by the United States and the EEOC. The Institute agrees

that additional research into workplace reproductive

hazards—including hazards to men—is urgently needed. It

agrees that much of the present research reflects gender

bias, and that researchers are too quick to find hazards

to women and too slow to investigate hazards to men.!!

That research bias is certainly grounded in institutional

'! As we point out at page 20, infra, we do not believe that the

scientific evidence regarding fetal damage from lead exposure ts

merely the product of bias. The scientific evidence overwhelmingly

suggests that exposure to lead at the levels involved in this case

has a significant impact on fetal development, but does not jeop

ardize adult health or safety

=

discriminatior.. It also agrees that fetal protection policies

and other measures supposedly intended to “protect”

women, children and families are often either pretexts for

intentionai discrimination or remnants of paternalistic, dis-

criminatory attitudes that have no place in modern society.

We deplore such discriminatory measures and urge the

Court to condemn them.!2

But we depart with petitioners to the extent they imply

that the fetal protection policy of this employer—Johnson

Controls—is discriminatory. The company voluntarily

agreed to permanently protect the earnings of all women

who were transferred from the battery production line

because of the policy. Any notion that it adopted its policy

because this is a “‘male-dominated”’ company or industry

(Pet. Br. 36-37) has no support in the record.’

'2 In some respects, the Institute may go beyond the petitioners.

We believe that there should be a federal program to compen-

sate women for lost earnings and benefits caused by the applica-

tion of valid fetal protection policies. We also believe that Con-

gress should enact a family leave act and a comprehensive national

health insurance program so that availability of health care is not

so closely linked to employment. And we believe OSHA should

adopt a regulation to require al/ employers to do what Johnson

Controls did: provide alternative employment and protect the

wages and benefits of any women who are transferred from jobs

because of a valid fetal protection policy.

‘8 The argument found in several amicus briefs that Johnson Con-

trols’ policy assumes that all women will become pregnant and

carry to term is simply wrong. The policy is based on the fact

that some women will become pregnant and carry to term and

that it is impossible to know which women will do so. Any serious

effort by Johnson Controls to determine who is and who is not

likely to become pregnant would itself be discriminatory and an

intolerable invasion of personal privacy. Cf. Western Air Lines,

Inc. vy. Criswell, 472 U.S. at 422-423; Usery v. Tamiami Trail

Tours, Inc., 531 F.2d 224, 236 (5th Cir. 1976) (age may be a BFOQ

if it is impractical for an employer to make individualized assess.

ments).

—20—

We also cannot condone petitioners’ efforts to downplay

the tragic effects of lead on fetuses and children and to

ignore the biological—as opposed to the “cultural,” “‘mythi-

cal” or ‘‘stereotypical”—differences between the reproduc-

tive functions of women and men. This case—and Johnson

Controls’ policy—is not about health risks to the reproduc-

tive systems of women and men, risks that in some cases

may cause sterility or birth defects. Instead, this case is

about the health risks to the brain and nervous system

of developing children caused by direct exposure of the

fetus to lead in the blood.'* The scientific evidence in the

record, and the judgment of the experts we have con-

sulted, is that direct fetal exposure to lead presents

serious risks of brain damage and functional impairment

at blood lead levels well below that thought to be safe

for adults.!5 And this direct fetal exposure can occur only

in women.

This Court should keep in mind that medical evidence

rarely rises to the level of absolute certainty. A few scien-

tists still debate whether smoking can cause cancer and

14 Of course, the identical legal issue might arise in other indus-

tries involving exposure to different risks. Expo:ure of female

health-care employees to rubella and other viruses is an example

that comes quickly to mind. See Coleman & Dickinson, “The Risks

of Healing: The Hazards of the Nursing Profession,”’ in Double

Exposure: Women’s Health Hazards on the Job and at Home 49

(W. Chavkin, ed., 1984).

15 In case the Court has not had its fil! of citations to medical

journals, we add just a few recent articles confirming the effect

of lead at relatively low levels on fetal and child development:

Needleman & Catsonis, ““Low Level Lead Exposure and the IQ

of Children,” 203 J. Am. Med. Ass’n 673 (1990); Shukla, et al.,

“Fetal and Infant Lead Exposure: Effects on Growth in Stature,”

84 Pediatrics 604 (1989); Dietrich, et al., ““Low Level Fetal Lead

Exposure Effect on Neurobehavioral Development in Early Inf»a-

cy,’ 80 Pediatrics 721 (1987).

-—

whether the HIV virus causes AIDS, for example. It

would be very bad health and safety policy to require un-

disputed scientific proof of a risk before an employer (or

OSHA) can act to reduce or eliminate it. If we always

wait for scientific certainty, it will always come too late.

The question in this case is not whether it is certain or

“proven” that fetal exposure to lead causes health prob-

lems or that lead exposure of men at similar levels does

not cause birth defects.'® The question is whether there

is substantial scientific evidence that fetal exposure to lead

(in women) causes impairment and that the risk is signifi-

cantly greater when women are exposed to lead than

when men are exposed to lead. The answer to this ques-

tion is plainly yes.

Given the scientific evidence, the ultimate issue in this

case is whether women should be permitted to decide on

their own whether to take the risk. The entire philosophy

of the OSH Act is that individual workers should not be

forced to make that choice and do not have the right to

agree to unsafe workplaces in return for higher pay, en-

hanced job security or better benefits. If the OSH Act

does not permit women (or men) to make that choice

where their own health and safety are concerned, it should

not be construed to permit workers (women or men) to

make that choice when the health or safety of develop-

ing children are concerned. We would make the same

argument—and would urge this Court to reach the same

conclusion—if this case involved a policy of excluding men

from jobs because it was shown that a particular toxin

caused changes in sperm which might cause fetal health

problems.

a6 Thus, contrary to the brief of the American Public Health

Ass n, et al., at 30 n.28, conclusions can be drawn from an absence

of evidence.

29

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

JAMES D. HoLZzHAUER

Counsel of Record

Dawt+ BEMBENISTA PANICH

} wer, Brown & Platt

. South LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

Attorneys for Amicus Curiae

July 1990