Justices pose skeptical questions on policy barring women from jobs


WASHINGTON -- The first attempt by a business to get the Supreme Court's permission to bar women from hazardous jobs to protect future fetuses ran into a barrage of hostile and skeptical questioning by the justices yesterday.

The questioning, dominated by four of the nine justices, gave at least the temporary impression that companies may ultimately have to offer hard proof of a significant link between workplace poisons and fetal health before they could close off jobs to female workers in their childbearing years.

At no point in an hourlong hearing, in fact, did a sympathetic remark emerge from the bench for a Milwaukee-headquartered company that makes auto batteries -- the first business called upon to defend, before the justices, a "fetal protection policy" that keeps all fertile women out of jobs in which they would be exposed to something toxic.

The case involving Johnson Controls Inc. reached the court as a test of the legality of a "fetal protection policy" under the federal law that forbids discrimination against female workers on the basis of their sex and on the basis of their capacity to get pregnant.

The company insists that it had a legal duty to make its battery plants -- which use toxic lead in the manufacturing process -- as safe as possible, not only for workers but also for fetuses that its fertile female employees may someday carry, even if they

currently have no intention of getting pregnant.

But at one particularly dramatic point in yesterday's hearing, Justice Antonin Scalia told the company's lawyer that his argument that Johnson Controls was acting to avoid conditions "bad for the child" was "the excuse that always has been used against women workers."

That argument, Justice Scalia said, would "make a dead letter" of the federal law that makes it illegal to treat pregnant workers differently because of pregnancy.

"Your argument," the justice told company attorney Stanley S. Jaspan of Milwaukee, "makes a farce" of that law. "You're making it a ridiculous piece of legislation," Justice Scalia added.

Justice Scalia and Justice John Paul Stevens, the two most active questioners, repeatedly pressed Mr. Jaspan to offer evidence to prove that fetal health was genuinely at risk from the lead levels to which Johnson Controls' workers can safely be exposed.

They asked the attorney, without success, to give the court guidance on how much fetal risk would be enough to justify shutting any or all fertile women out of job categories involving toxic exposure.

Justice Scalia suggested that female workers might pose even greater risks to future fetuses if they smoked cigarettes or drank a lot of liquor, and the justice noted that the choice to run that risk had not been taken away from those workers.

Mr. Jaspan replied that his company does not provide cigarettes to its employees. He also told Justice Anthony M. Kennedy, in response to a question, that the company's legal right to protect workers' offspring would allow it to prohibit the sale of cigarettes in its factory cafeterias.

The lawyer on the other side, San Francisco attorney Marsha S. Berzon, representing workers and the United Auto Workers union in opposing the "fetal protection policy," stressed hard the theme that Johnson Controls was trying to create a "zero risk" for fetuses that might be carried by some of its workers, yet was not trying to reduce the risk to the workers themselves to the non-existent level.

Ms. Berzon told the court that, if Johnson Controls won the case, it would result in "re-segregation of the workplace" according to sex and would cause many companies to imitate the fetal protection approach and exclude women from better-paying jobs that then only men could hold.

The Johnson Controls case is the first major case before the court on which the newest justice, David H. Souter, has sat. He said nothing throughout the hearing.

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