111 S.Ct. 1196 (1991), argued 10 Oct. 1990, decided 20 Mar. 1991 by vote of 9 to 0; Blackmun for the Court, White, joined by Rehnquist and Kennedy, concurring in part and concurring in the judgment, Scalia concurring in the judgment. In this landmark sex discrimination case, several unions and women employees brought a class action suit under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978. The suit challenged the “fetal protection policy” of Johnson Controls, a battery-manufacturing company that, since 1982, had barred fertile women from high-paying jobs involving exposure to lead.
Reversing both the district court and the court of appeals, which had ruled in favor of the company, the Supreme Court held that the fetal protection policy was not facially neutral because it did not apply to males as well as females despite evidence that lead exposure also harms the male reproductive system. Since this was a policy of “disparate treatment,” it could be justified under Title VII only as a bona fide occupational qualification (BFOQ). However, the Court held that since pregnant employees must be treated the same as other employees unless they differ in their ability to do the work, and since there was no showing here of such a disability, the BFOQ exception was not justifiable. The company's main concern was not with whether the female employees could do the job, but with whether lead exposure would harm their unconceived fetuses. However important this may be, the Court said, the health of a fetus is not essential to the business of battery manufacturing and thus cannot qualify as a BFOQ. The Court also rejected the company's claim that its policy was justified by a fear of tort liability. Justice Byron White, joined by Chief Justice William Rehnquist and Justice Anthony Kennedy, agreed that the Johnson Controls policy was discriminatory, but disagreed that the BFOQ defense was so narrow that it could never justify a sex-specific fetal protection policy.
Joel B. Grossman