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Fetal protection.

Fetal protection

Under certain circumstances, an employer may prohibit women from performing jobs that pose a hazard to unborn children, the Court of Appeals for the Seventh Circuit recently ruled in UAW v. Johnson Controls, Inc.(1) In this case, which a dissenting judge said "is likely the most important sex-discrimination case in any court since ... Congress enacted Title VII,"(2) the court was asked to determine whether a battery manufacturer's "fetal protection policy" amounted to unlawful sex discrimination under Title VII because it barred women, but not men, from working in jobs that may involve excessive exposure to lead.(3)

The company first established a fetal protection policy in 1977. This policy warned women that exposure to lead could pose a danger to fetuses and recommended that women who were considering having children not work in jobs that required such exposure. The policy did not, however, prohibit women from performing those jobs. In spite of the company's efforts between 1979 and 1983 at least six women in positions with high lead exposure became pregnant while maintaining levels of lead in the blood that the employer considered dangerous. In addition, at least one of the babies born to these women showed elevated blood lead levels. From these events, the company concluded that its voluntary fetal protection policy, as well as its other safety and health policies, were not effective in protecting pregnant women and their unborn children from excessive exposure to lead. As a result, the company established a new policy under which women capable of bearing children could not work in jobs that exposed them to high lead levels.(4)

The employees and their unions challenged this policy, claiming that it overtly discriminated against them on the basis of sex. They argued that such discriminatory treatment could not be upheld under the sex discrimination provisions of Title VII because the employer had not shown that an employee's sex was a "bona fide occupational qualification."(5) Writing for a 7-4 majority of the Court of Appeals for the Seventh Circuit, Judge John Coffey rejected this argument, holding that the company's fetal protection policy did not violate Title VII's prohibition against sex discrimination, because the policy was justified under a modified and less stringent "business necessity" standard.(6)

As Judge Coffey conceded, the business necessity defense generally applies when a facially neutral employment practice, such as a written test or a weight requirement, is claimed to have a disparate impact on women.(7) In contrast, the more limited bona fide occupation qualification defense applies when the employment practice in question is overt, not neutral, in its discrimination against women.(8)

Johnson Controls' fetal protection policy would appear to operate more like overt sex discrimination than like a neutral practice that has a disparate impact on women, because the Pregnancy Discrimination Act states that under Title VII, sex discrimination includes discrimination based on pregnancy, childbirth, or related medical conditions.(9) Thus, the bona fide occupational qualification defense would appear to be more appropriate in this type of case than the business necessity standard.

The court recognized this problem, but held that the traditional analysis should not be applied inflexibly. Instead, it applied a modified business necessity defense analysis that two other courts of appeals had considered to be the appropriate analytical framework for evaluating the propriety of fetal protection policies.(10) The Johnson Controls court concluded that such a framework should be applied to fetal protection policy cases because that defense "balance[s] the interests of the employer, the employee and the unborn child in a manner consistent with Title VII."(11)

Judge Coffey articulated a three-part test for determining whether business necessity justified Johnson Controls' fetal protection policy. He looked first to see whether workplace exposure to lead posed a substantial risk of harm to employees' unborn children. On this point, he noted that the parties agreed that exposure to lead presented a risk to fetuses. Next, he looked to see whether harm to fetuses occurred through the exposure of women, but not men, to lead. Here, he indicated that the only credible evidence that had been presented had been presented by the company, whose experts testified that exposure of men to lead levels meeting Federal guidelines did not pose a substantial risk of harm to unborn children. Finally, Judge Coffey looked to see whether an adequate, less discriminatory alternative to the company's fetal protection policy existed.(12) Because the union did not suggest any such alternative, he found that none existed. Judge Coffey said that the union's failure to allege facts that met his three-part business necessity test meant that the company was entitled to summary judgment in its favor.(13)

The dissenting judges strongly disagreed with the majority, each complaining that fetal protection policy cases should not be analyzed under the business necessity standard. Judge Frank H. Easterbrook indicated that even if business necessity were the correct standard to apply, the majority's view of what constituted a substantial risk of harm to unborn children was too narrow. In his opinion, the majority should have applied a "net" risk analysis, whereby the risks to the fetus posed by exposure to lead would be balanced against the risks posed by other factors, such as the mother's loss of income and medical insurance.(14)
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Title Annotation:Significant Decisions in Labor Cases
Author:Hukill, Craig
Publication:Monthly Labor Review
Date:Mar 1, 1990
Words:882
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