Case Study:
[Johnson Controls, Inc. (JCI) manufactures batteries. A primary ingredient in the battery manufacturing process is lead. Occupational exposure to lead entails health risks, including the risk of harm to any fetus carried by a female employee. After eight of its employees became pregnant while maintaining blood lead levels exceeding levels set by the Centers for Disease Control (CDC) as critical for a worker planning to have a family, respondent announced a policy barring all women, except those whose infertility was medically documented, from jobs involving actual or potential lead exposure exceeding the OSHA standard. Petitioners filed a class action in the district court, claiming that the policy constituted sex discrimination violative of Title VII of the Civil Rights Act of 1964, as amended. Among the individual plaintiffs were Mary Craig, who had chosen to be sterilized to avoid losing her job; Elsie Nason, a 50- year-old divorcee who had suffered a loss in compensation when she was transferred out of a job where she was exposed to lead; and Donald Penney, who had been denied a request for a leave of absence for the purpose of lowering his lead level because he intended to become a father. The court granted summary judgment for respondent, and the court of appeals affirmed. The Supreme Court granted certiorari.] BLACKMUN, J.… I. The bias in Johnson Controls’ policy is obvious. Fertile men, but not fertile women, are given a choice as to whether they wish to risk their reproductive health for a particular job. Section 703(a) of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U.S.C. § 2000e-2(a), prohibits sex-biased classifications in terms and conditions of employment, in hiring and discharging decisions, and in other employment decisions that adversely affect an employee’s status. Respondent’s fetal-protection policy explicitly discriminates against women on the basis of their sex. The policy excludes women with child-bearing capacity from lead-exposed jobs and so creates a facial classification based on gender…. First, Johnson Controls’ policy classifies on the basis of gender and childbearing capacity, rather than fertility alone. Respondent does not seek to protect the unconceived children of all its employees. Despite evidence in the record about the debilitating effect of lead exposure on the male reproductive system, Johnson Controls is concerned only with the harms that may befall the unborn offspring of its female employees…. “The Pregnancy Discrimination Act has now made clear that, for all Title VII purposes, discrimination based on a woman’s pregnancy is, on its face, discrimination because of her sex.” Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983). In its use of the words “capable of bearing children” in the 1982 policy statement as the criterion for exclusion, Johnson Controls explicitly classifies on the basis of potential for pregnancy. Under the PDA, such a classification must be regarded, for Title VII purposes, in the same light as explicit sex discrimination. Respondent has chosen to treat all its female employees as potentially pregnant; that choice evinces discrimination on the basis of sex. We concluded above that Johnson Controls’ policy is not neutral because it does not apply to the reproductive capacity of the company’s male employees in the same way as it applies to that of the females. Moreover, the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect…. … We hold that Johnson Controls’ fetalprotection policy is sex discrimination forbidden under Title VII unless respondent can establish that sex is a “bona fide occupational qualification.” II. Under § 703(e)(1) of Title VII, an employer may discriminate on the basis of “religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” We therefore turn to the question whether Johnson Controls’ fetal-protection policy is one of those “certain instances” that come within the BFOQ exception. The BFOQ defense is written narrowly, and this Court has read it narrowly. We have read the BFOQ language of § 4(f) of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 603, as amended, 29 U.S.C. § 623(f)(1), which tracks the BFOQ provision in Title VII, just as narrowly. Our emphasis on the restrictive scope of the BFOQ defense is grounded on both the language and the legislative history of § 703. The wording of the BFOQ defense contains several terms of restriction that indicate that the exception reaches only special situations. The statute thus limits the situations in which discrimination is permissible to “certain instances” where sex discrimination is “reasonably necessary” to the “normal operation” of the “particular” business. Each one of these terms—certain, normal, particular—prevents the use of general subjective standards and favors an objective, verifiable requirement. But the most telling term is “occupational”; this indicates that these objective, verifiable requirements must concern jobrelated skills and aptitudes. Johnson Controls argues that its fetal-protection policy falls within the so-called safety exception to the BFOQ. Our cases have stressed that discrimination on the basis of sex because of safety concerns is allowed only in narrow circumstances. In Dothard v. Rawlinson, this Court indicated that danger to a woman herself does not justify discrimination. 433 U.S., at 335, 97 S. Ct. at 2729–2730. We there allowed the employer to hire only male guards in contact areas of maximum-security male penitentiaries only because more was at stake than the “individual woman’s decision to weigh and accept the risks of employment.” Ibid. We found sex to be a BFOQ inasmuch as the employment of a female guard would create real risks of safety to others if violence broke out because the guard was a woman. Sex discrimination was tolerated because sex related to the guard’s ability to do the job—maintaining prison security. We also required in Dothard a high correlation between sex and ability to perform job functions and refused to allow employers to use sexas a proxy for strength although it might be a fairly accurate one…. Our case law, therefore, makes clear that the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job. This approach is consistent with the language of the BFOQ provision itself, for it suggests that permissible distinctions based on sex must relate to ability to perform the duties of the job. Johnson Controls suggests, however, that we expand the exception to allow fetal-protection policies that mandate particular standards for pregnant or fertile women. We decline to do so. Such an expansion contradicts not only the language of the BFOQ and the narrowness of its exception but the plain language and history of the Pregnancy Discrimination Act. The PDA’s amendment to Title VII contains a BFOQ standard of its own: unless pregnant employees differ from others “in their ability or inability to work,” they must be “treated the same” as other employees “for all employment-related purposes.” 42 U.S.C. § 2000e(k). This language clearly sets forth Congress’ remedy for discrimination on the basis of pregnancy and potential pregnancy. Women who are either pregnant or potentially pregnant, must be treated like others “similar in their ability … to work.” Ibid. In other words, women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job…. The legislative history confirms what the language of the Pregnancy Discrimination Act compels. Both the House and the Senate Reports accompanying the legislation indicate that this statutory standard was chosen to protect female workers from being treated differently from other employees simply because of their capacity to bear children…. We conclude that the language of both the BFOQ provision and the PDA which amended it, as well as the legislative history and the case law, prohibit an employer from discriminating against a woman because of her capacity to become pregnant unless her reproductive potential prevents her from performing the duties of her job. We reiterate our holdings … that an employer must direct its concerns about a woman’s ability to perform her job safely and efficiently to those aspects of the woman’s job-related activities that fall within the “essence” of the particular business. III. We have no difficulty concluding that Johnson Controls cannot establish a BFOQ. Fertile women, as far as appears in the record, participate in the manufacture of batteries as efficiently as anyone else. Johnson Controls’ professed moral and ethical concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility. Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents. Congress has mandated this choice through Title VII, as amended by the Pregnancy Discrimination Act. Johnson Controls has attempted to exclude women because of their reproductive capacity. Title VII and the PDA simply do not allow a woman’s dismissal because of her failure to submit to sterilization. Nor can concerns about the welfare of the next generation be considered a part of the “essence” of Johnson Controls’ business. Judge Easterbrook in this case pertinently observed: “It is word play to say that ‘the job’ at Johnson [Controls] is to make batteries without risk to fetuses in the same way ‘the job’ at Western Air Lines is to fly planes without crashing.” 886 F.2d, at 913. Johnson Controls argues that it must exclude all fertile women because it is impossible to tell which women will become pregnant while working with lead…. Johnson Controls’ fear of prenatal injury, no matter how sincere, does not begin to show that substantially all of its fertile women employees are incapable of doing their jobs. IV. A word about tort liability and the increased cost of fertile women in the workplace is perhaps necessary. One of the dissenting judges in this case expressed concern about an employer’s tort liability and concluded that liability for a potential injury to a fetus is a social cost that Title VII does not require a company to ignore. 886 F.2d, at 904–905. It is correct to say that Title VII does not prevent the employer from having a conscience. The statute, however, does prevent sex-specific fetal-protection policies. These two aspects of the Title VII do not conflict. More than 40 States currently recognize a right to recover for a prenatal injury based either on negligence or on wrongful death. According to Johnson Controls, however, the company complies with the lead standard developed by OSHA and warns its female employees about the damaging effects of lead. It is worth notingthat OSHA gave the problem of lead lengthy consideration and concluded that “there is no basis whatsoever for the claim that women of child-bearing age should be excluded from the workplace in order to protect the fetus or the course of pregnancy.” Instead, OSHA established a series of mandatory protections which, taken together, “should effectively minimize any risk to the fetus and newborn child.” Id., at 52966. Without negligence, it would be difficult for a court to find liability on the part of the employer. If, under general tort principles, Title VII bans sex-specific fetalprotection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best…. V. Our holding today that Title VII, as so amended, forbids sex-specific fetal-protection policies is neither remarkable nor unprecedented. Concern for a woman’s existing or potential offspring historically has been the excuse for denying women equal employment opportunities. See, e.g., Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L.Ed. 551 (1908). Congress in the PDA prohibited discrimination on the basis of a woman’s ability to become pregnant. We do no more than hold that the Pregnancy Discrimination Act means what it says. It is no more appropriate for the courts than it is for individual employers to decide whether a woman’s reproductive role is more important to herself and her family than her economic role. Congress has left this choice to the woman as hers to make. The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered. USTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE KENNEDY join, concurring in part and concurring in the judgment…. The Court properly holds that Johnson Controls’ fetal-protection policy overtly discriminates against women, and thus is prohibited by Title VII unless it falls within the bona fide occupational qualification (BFOQ) exception, set forth at 42 U.S.C. § 2000e–2(e). The Court erroneously holds, however, that the BFOQ defense is so narrow that it could never justify a sex-specific fetal-protection policy. I nevertheless concur in the judgment of reversal because on the record before us summary judgment in favor of Johnson Controls was improperly entered by the District Court and affirmed by the Court of Appeals…. [Justice Scalia concurred in the judgment of the Court.]
Q1. Did Johnson Controls’ “fetal-protection policy” discriminate against women?
Q2. JCI’s fetal-protection policy was implemented only after eight employees became pregnant while maintaining blood lead levels exceeding the level set by the CDC as critical. Considering JCI’s moral and ethical obligations to the unborn fetuses and its possible extensive lability in future lawsuits, should not the BFOQ defense be available to it?
Q3. Was JCI’s policy within the so-called safety exception to the BFOQ?
Q4. Does the PDA contain a BFOQ standard of its own?
Your answer must be, typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format and also include references.