Justices void rule limiting women on job Fetal protection from work hazards is ruled unjust

THE BALTIMORE SUN

WASHINGTON -- The Supreme Court, in a women's rights ruling that may be as important and controversial as its abortion decision, gave women of childbearing age broad legal freedom yesterday to choose to work in hazardous jobs.

Companies, the court ruled 6-3, may not use their desire to protect the health or life of fetuses that might someday be born to their workers as a reason for barring fertile female employees from exposure to poisons or other job risks.

Singling out women for special on-the-job restrictions, even when doing so to try to assure fetuses' health, is a form of sex bias forbidden by federal law, the court declared in the main opinion written by Justice Harry A. Blackmun -- the justice who also wrote the court's basic abortion ruling in 1973.

Fetal safety, the court declared flatly, is not the kind of justification Congress has allowed for treating female workers of childbearing age differently on the job.

"Concern for a woman's existing or potential offspring historically has been the excuse for denying women equal employment opportunities," Justice Blackmun wrote. But, he said, Congress put a stop to that by passing laws in 1964 and 1978.

Yesterday's ruling marked the first time the court had ever ruled on a direct attempt to protect fetuses by limiting women's rights.

"The decision prevents as many as 20 million jobs from becoming sex-segregated and shut off to women," said Alison Wetherfield, legal director of the National Organization for Women's Legal Defense Fund. Judith L. Lichtman, president of the Women's Legal Defense Fund, hailed the decision as a clear victory in "one of the most important cases for workers that the court has ever handed down."

A group that favors fetal rights, Americans United for Life, said that the ruling "doesn't bode well for a child who could be conceived in risky circumstances." Spokeswoman Wendy Stone added that fetal-protection policies were not designed to threaten fertile women but to protect "a child already conceived."

A business group, the National Association of Manufacturers, lambasted the ruling. It "leaves employers with a difficult choice: Continue operations knowing of unavoidable risk to the unborn, or cease doing business altogether," according to NAM deputy general counsel Quentin Riegel.

The ruling was based solely on the court's interpretation of the 1964 civil rights law's ban on sex bias in the workplace and a 1978 law's ban on discrimination against female workers on the basis of pregnancy.

Thus, the decision says nothing about whether women have a constitutional right to work in hazardous jobs that might pose a risk to fetuses they may carry, and nothing about whether women have a constitutional right not to have their lives regulated during pregnancy to protect fetuses. No constitutional issue was at stake in the ruling.

Justice Blackmun, who read portions of his opinion in a quiet, even tone in a hushed courtroom, declared, "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."

Justice Blackmun's opinion was supported in full by four other justices. Justice David H. Souter, who became a member of the court one day before the case was heard last fall, joined the Blackmun opinion. This was his first significant vote as a justice on any issue of women's rights. His views in that area were the only major issue the Senate raised against him last fall during confirmation hearings.

Justice Sandra Day O'Connor, the only woman on the court, also joined the decision, as did two liberal justices, Thurgood Marshall and John Paul Stevens. A sixth justice, Antonin Scalia, went along with most of the decision but noted his "reservations" about its breadth.

Three conservatives -- Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Byron R. White -- filed what amounted to a dissent to the scope and content of the Blackmun opinion. Those three, however, did agree with the other justices that the particular fetal-protection program at issue was illegal and had to be struck down.

The case involved an auto battery manufacturer's flat ban on any fertile woman on its payroll from holding any job involving exposure to more than a minimal amount of lead. Battery-makers have found no way to do without lead -- a potential source of poisoning that threatens the health of adults and fetuses.

The decision does not mean that employers are forbidden to take steps to assure workplace safety, or to minimize exposure to hazardous substances or operations. Employers, in fact, have a duty under federal and state law to assure workplace safety and run legal risks if they do not do so.

The decision does mean, though, that they generally may not adopt safety restrictions that apply only on the basis of a worker's sex, and that they may not try to justify such restrictions on the theory that they are acting to protect fetal health or life.

Female workers, Justice Blackmun wrote, have been given a strong legal right by Congress to equality on the job, and that means a woman who has "the ability to get her job done" must not be barred from it because of her sex or her fertility.

Thus, a woman's capacity to become pregnant cannot be used against her in a factory or office, the opinion declared, unless her employer can prove that her fertility "prevents her from performing the duties of her job."

Fertile women, Justice Blackmun's opinion commented, "participate in the manufacture of batteries as efficiently as anyone else." Thus, he wrote, the company involved -- Johnson Controls Inc. -- cannot justify its different treatment of fertile female workers on the basis of the company's own "moral and ethical concerns about the welfare of the next generation."

Under the two federal laws governing the case, companies are allowed to adopt sex-specific job rules if they can show that a given job is one that can be performed only by a person of one sex -- technically, where being of one sex is a "bona fide occupational qualification."

In the past, the court has said that sex-based restrictions may be applied if they are necessary to protect the safety of customers or other individuals with whom a worker has to deal directly. But it ruled yesterday that safety of fetuses is different and that it cannot be used as justification because there is no way to prove it is job-related.

The welfare of "the next generation," Justice Blackmun's opinion said, is not an "essential" part of a company's line of business or operations, so sex-specific policies on the job cannot be justified by that reason.

Johnson Controls at one time had a voluntary program, under which it encouraged female workers to choose to limit their exposure to lead. In 1982, however, it adopted a mandatory ban.

Originally, the company said it was doing so only to "protect unborn children." Later, it said it also had adopted the policy to avoid being sued for damages in the future if a worker's baby were born deformed.

The Supreme Court yesterday dismissed as "remote, at best" the chance that a company could lose a lawsuit for providing equal job opportunities for fertile women workers.

The case

A 9-year-old policy that a Milwaukee-based company had adopted to protect the health of fetuses its female workers might someday carry led to yesterday's Supreme Court ruling barring such policies.

The manufacturer, Johnson Controls Inc., decided in 1982 to stop relying on its female workers of childbearing age to avoid exposure to significant amounts of lead in the company plants where auto batteries were made. Instead, it adopted a mandatory policy barring all fertile women on its payroll from any job requiring exposure to more than a minimal amount of lead.

One female worker, wishing to keep her job, underwent sterilization to get around the company's restrictions. She and seven other Johnson workers sued the company to challenge the policy but lost in lower courts. The Supreme Court ruled in their favor in United Automobile Workers vs. Johnson Controls (No. 89-1215).

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