|||SUPREME COURT OF THE UNITED STATES
499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 59 U.S.L.W. 4209
|||decided: March 20, 1991.
|||INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, UAW, ET AL., PETITIONERS
JOHNSON CONTROLS, INC.
|||CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
|||Marsha S. Berzon argued the cause for petitioners. With her on the briefs
were Jordan Rossen, Ralph O. Jones, and Laurence Gold.
|||Stanley S. Jaspan argued the cause for respondent. With him on the briefs
were Susan R. Maisa, Anita M. Sorensen, Charles G. Curtis, Jr., and John
|||Blackmun, J., delivered the opinion of the Court, in which Marshall, Stevens,
O'Connor, and Souter, JJ., joined. White, J., filed an opinion concurring
in part and concurring in the judgment, in which Rehnquist, C.j., and Kennedy,
J., joined, post, p. 211. Scalia, J., filed an opinion concurring in the
judgment, post, p. 223.
|||JUSTICE BLACKMUN delivered the opinion of the Court.
|||In this case we are concerned with an employer's gender-based fetal-protection
policy. May an employer exclude a fertile female employee from certain jobs
because of its concern for the health of the fetus the woman might conceive?
|||Respondent Johnson Controls, Inc., manufactures batteries. In the manufacturing
process, the element lead is a primary ingredient. Occupational exposure
to lead entails health risks, including the risk of harm to any fetus carried
by a female employee.
|[ 59 U.S.L.W. Page 191]|
Before the Civil Rights Act of 1964, 78 Stat. 241, became law, Johnson Controls
did not employ any woman in a battery-manufacturing job. In June 1977, however,
it announced its first official policy concerning its employment of women
in lead-exposure work:
|||"Protection of the health of the unborn child is the immediate and
direct responsibility of the prospective parents. While the medical profession
and the company can support them in the exercise of this responsibility,
it cannot assume it for them without simultaneously infringing their rights
|||". . . . Since not all women who can become mothers wish to become
mothers (or will become mothers), it would appear to be illegal discrimination
to treat all who are capable of pregnancy as though they will become pregnant."
|||Consistent with that view, Johnson Controls "stopped short of excluding
women capable of bearing children from lead exposure," id., at 138,
but emphasized that a woman who expected to have a child should not choose
a job in which she would have such exposure. The company also required a
woman who wished to be considered for employment to sign a statement that
she had been advised of the risk of having a child while she was exposed
to lead. The statement informed the woman that although there was evidence
"that women exposed to lead have a higher rate of abortion," this
evidence was "not as clear . . . as the relationship between cigarette
smoking and cancer," but that it was, "medically speaking, just
good sense not to run that risk if you want children and do not want to
expose the unborn child to risk, however small. . . ." Id., at 142-143.
|||Five years later, in 1982, Johnson Controls shifted from a policy of warning
to a policy of exclusion. Between 1979 and 1983, eight employees became
pregnant while maintaining blood lead levels in excess of 30 micrograms
per deciliter. Tr. of Oral Arg. 25, 34. This appeared to be the critical
|[ 59 U.S.L.W. Page 192]|
noted by the Occupational Safety and Health Administration (OSHA) for a
worker who was planning to have a family. See 29 CFR § 1910.1025 (1990).
The company responded by announcing a broad exclusion of women from jobs
that exposed them to lead:
|||"It is [Johnson Controls'] policy that women who are pregnant or
who are capable of bearing children will not be placed into jobs involving
lead exposure or which could expose them to lead through the exercise of
job bidding, bumping, transfer or promotion rights." App. 85-86.
|||The policy defined "women . . . capable of bearing children"
as "all women except those whose inability to bear children is medically
documented." Id. , at 81. It further stated that an unacceptable work
station was one where, "over the past year," an employee had recorded
a blood lead level of more than 30 micrograms per deciliter or the work
site had yielded an air sample containing a lead level in excess of 30 micrograms
per cubic meter. Ibid.
|||In April 1984, petitioners filed in the United States District Court for
the Eastern District of Wisconsin a class action challenging Johnson Controls'
fetal-protection policy as sex discrimination that violated Title VII of
the Civil Rights Act of 1964, as amended, 42 U. S. C. § 2000e et seq. Among
the individual plaintiffs were petitioners Mary Craig, who had chosen to
be sterilized in order 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. Upon stipulation of the
parties, the District Court certified a class consisting of "all past,
present and future production and maintenance employees" in United
Auto Workers bargaining
|[ 59 U.S.L.W. Page 193]|
units at nine of Johnson Controls' plants "who have been and continue
to be affected by [the employer's] Fetal Protection Policy implemented in
1982." No. 84-C-0472 (Feb. 25, 1985), pp. 1, 2.
|||The District Court granted summary judgment for defendant-respondent Johnson
680 F. Supp. 309
(1988). Applying a three-part business necessity defense derived from fetal-protection
cases in the Courts of Appeals for the Fourth and Eleventh Circuits, the
District Court concluded that while "there is a disagreement among
the experts regarding the effect of lead on the fetus," the hazard
to the fetus through exposure to lead was established by "a considerable
body of opinion"; that although "expert opinion has been provided
which holds that lead also affects the reproductive abilities of men and
women . . . [and] that these effects are as great as the effects of exposure
of the fetus . . . a great body of experts are of the opinion that the fetus
is more vulnerable to levels of lead that would not affect adults";
and that petitioners had "failed to establish that there is an acceptable
alternative policy which would protect the fetus." Id., at 315-316.
The court stated that, in view of this disposition of the business necessity
defense, it did not "have to undertake a bona fide occupational qualification's
[ sic ] (BFOQ) analysis." Id., at 316, n. 5.
|||The Court of Appeals for the Seventh Circuit, sitting en banc, affirmed
the summary judgment by a 7-to-4 vote.
886 F.2d 871
(1989). The majority held that the proper standard for evaluating the fetal-protection
policy was the defense of business necessity; that Johnson Controls was
entitled to summary judgment under that defense; and that even if the proper
standard was a BFOQ, Johnson Controls still was entitled to summary judgment.
|||The Court of Appeals, see id., at 883-885, first reviewed fetal-protection
opinions from the Eleventh and Fourth Circuits. See Hayes v. Shelby Memorial
726 F.2d 1543
(CA11 1984), and Wright v. Olin Corp.,
697 F.2d 1172
|[ 59 U.S.L.W. Page 194]|
(CA4 1982). Those opinions established the three-step business necessity
inquiry: whether there is a substantial health risk to the fetus; whether
transmission of the hazard to the fetus occurs only through women; and whether
there is a less discriminatory alternative equally capable of preventing
the health hazard to the fetus.
886 F.2d, at 885.
The Court of Appeals agreed with the Eleventh and Fourth Circuits that "the
components of the business necessity defense the courts of appeals and the
EEOC have utilized in fetal protection cases balance the interests of the
employer, the employee and the unborn child in a manner consistent with
Title VII." Id., at 886. The court further noted that, under Wards
Cove Packing Co. v. Atonio,
490 U.S. 642
(1989), the burden of persuasion remained on the plaintiff in challenging
a business necessity defense, and -- unlike the Fourth and Eleventh Circuits
-- it thus imposed the burden on the plaintiffs for all three steps.
886 F.2d, at 887-893.
726 F.2d, at 1549,
697 F.2d, at 1187.
|||Applying this business necessity defense, the Court of Appeals ruled that
Johnson Controls should prevail. Specifically, the court concluded that
there was no genuine issue of material fact about the substantial health-risk
factor because the parties agreed that there was a substantial risk to a
fetus from lead exposure.
886 F.2d, at 888-889.
The Court of Appeals also concluded that, unlike the evidence of risk to
the fetus from the mother's exposure, the evidence of risk from the father's
exposure, which petitioners presented, "is, at best, speculative and
unconvincing." Id., at 889. Finally, the court found that petitioners
had waived the issue of less discriminatory alternatives by not adequately
presenting it. It said that, in any event, petitioners had not produced
evidence of less discriminatory alternatives in the District Court. Id.,
|||Having concluded that the business necessity defense was the appropriate
framework and that Johnson Controls satisfied
|[ 59 U.S.L.W. Page 195]|
that standard, the court proceeded to discuss the BFOQ defense and concluded
that Johnson Controls met that test, too. Id., at 893-894. The en banc majority
ruled that industrial safety is part of the essence of respondent's business,
and that the fetal-protection policy is reasonably necessary to further
that concern. Quoting Dothard v. Rawlinson,
433 U.S. 321,
335 (1977), the majority emphasized that, in view of the goal of protecting
the unborn, "more is at stake" than simply an individual woman's
decision to weigh and accept the risks of employment.
886 F.2d, at 898.
|||Judges Cudahy and Posner dissented and would have reversed the judgment
and remanded the case for trial. Judge Cudahy explained: "It may (and
should) be difficult to establish a BFOQ here but I would afford the defendant
an opportunity to try." Id., at 901. "The BFOQ defense need not
be narrowly limited to matters of worker productivity, product quality and
occupational safety." Id., at 902, n. 1. He concluded that this case's
"painful complexities are manifestly unsuited for summary judgment."
Id., at 902.
|||Judge Posner stated: "I think it a mistake to suppose that we can
decide this case once and for all on so meager a record." Ibid. He,
too, emphasized that, under Title VII, a fetal-protection policy which explicitly
applied just to women could be defended only as a BFOQ. He observed that
Title VII defines a BFOQ defense as a "'bona fide occupational qualification
reasonably necessary to the normal operation'" of a business, and that
"the 'normal operation' of a business encompasses ethical, legal, and
business concerns about the effects of an employer's activities on third
parties." Id., at 902 and 904. He emphasized, however, that whether
a particular policy is lawful is a question of fact that should ordinarily
be resolved at trial. Id., at 906. Like Judge Cudahy, he stressed that "it
will be the rare case where the lawfulness of such a policy can be decided
on the defendant's motion for summary judgment." Ibid.
|[ 59 U.S.L.W. Page 196]|
Judge Easterbrook, also in dissent and joined by Judge Flaum, agreed with
Judges Cudahy and Posner that the only defense available to Johnson Controls
was the BFOQ. He concluded, however, that the BFOQ defense would not prevail
because respondent's stated concern for the health of the unborn was irrelevant
to the operation of its business under the BFOQ. He also viewed the employer's
concern as irrelevant to a woman's ability or inability to work under the
Pregnancy Discrimination Act's amendment to Title VII, 92 Stat. 2076, 42
U. S. C. § 2000e(k). Judge Easterbrook also stressed what he considered
the excessive breadth of Johnson Controls' policy. It applied to all women
(except those with medical proof of incapacity to bear children) although
most women in an industrial labor force do not become pregnant, most of
those who do become pregnant will have blood lead levels under 30 micrograms
per deciliter, and most of those who become pregnant with levels exceeding
that figure will bear normal children anyway.
886 F.2d, at 912-913.
"Concerns about a tiny minority of women cannot set the standard by
which all are judged." Id., at 913.
|||With its ruling, the Seventh Circuit became the first Court of Appeals
to hold that a fetal-protection policy directed exclusively at women could
qualify as a BFOQ. We granted certiorari,
494 U.S. 1055
(1990), to resolve the obvious conflict between the Fourth, Seventh, and
Eleventh Circuits on this issue, and to address the important and difficult
question whether an employer, seeking to protect potential fetuses, may
discriminate against women just because of their ability to become pregnant.*fn1
|[ 59 U.S.L.W. Page 197]|
|||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-based classifications in terms and conditions of employment, in hiring
and discharging decisions, and in other employment decisions that adversely
affect an employee's status.*fn2 Respondent's
fetal-protection policy explicitly discriminates against women on the basis
of their sex. The policy excludes women with childbearing capacity from
lead-exposed jobs and so creates a facial classification based on gender.
Respondent assumes as much in its brief before this Court. Brief for Respondent
17, n. 24.
|||Nevertheless, the Court of Appeals assumed, as did the two appellate courts
that already had confronted the issue, that sex-specific fetal-protection
policies do not involve facial discrimination.
886 F.2d, at 886-887;
726 F.2d, at 1547;
697 F.2d, at 1190.
These courts analyzed the policies as though they were facially neutral
and had only a
|[ 59 U.S.L.W. Page 198]|
discriminatory effect upon the employment opportunities of women. Consequently,
the courts looked to see if each employer in question had established that
its policy was justified as a business necessity. The business necessity
standard is more lenient for the employer than the statutory BFOQ defense.
The Court of Appeals here went one step further and invoked the burden-shifting
framework set forth in Wards Cove Packing Co. v. Atonio,
490 U.S. 642
(1989), thus requiring petitioners to bear the burden of persuasion on all
886 F.2d, at 887-888.
The court assumed that because the asserted reason for the sex-based exclusion
(protecting women's unconceived offspring) was ostensibly benign, the policy
was not sex-based discrimination. That assumption, however, was incorrect.
|||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. Accordingly, it
appears that Johnson Controls would have lost in the Eleventh Circuit under
Hayes because its policy does not "effectively and equally protect
the offspring of all employees."
726 F.2d, at 1548.
This Court faced a conceptually similar situation in Phillips v. Martin
400 U.S. 542
(1971), and found sex discrimination because the policy established "one
hiring policy for women and another for men -- each having pre-school-age
children." Id., at 544. Johnson Controls' policy is facially discriminatory
because it requires only a female employee to produce proof that she is
not capable of reproducing.
|||Our conclusion is bolstered by the Pregnancy Discrimination Act (PDA),
42 U. S. C. § 2000e(k), in which Congress explicitly provided that, for
purposes of Title VII, discrimination "'on the basis of sex'"
includes discrimination "because
|[ 59 U.S.L.W. Page 199]|
of or on the basis of pregnancy, childbirth, or related medical conditions."*fn3
"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. Whether an employment
practice involves disparate treatment through explicit facial discrimination
does not depend on why the employer discriminates but rather on the explicit
terms of the discrimination. In Martin Marietta, supra, the motives underlying
the employers' express exclusion of women did not alter the intentionally
discriminatory character of the policy. Nor did the arguably benign motives
lead to consideration of a business necessity defense. The question
|[ 59 U.S.L.W. Page 200]|
in that case was whether the discrimination in question could be justified
under § 703(e) as a BFOQ. The beneficence of an employer's purpose does
not undermine the conclusion that an explicit gender-based policy is sex
discrimination under § 703(a) and thus may be defended only as a BFOQ.
|||The enforcement policy of the Equal Employment Opportunity Commission
accords with this conclusion. On January 24, 1990, the EEOC issued a Policy
Guidance in the light of the Seventh Circuit's decision in the present case.
App. to Pet. for Cert. 127a. The document noted: "For the plaintiff
to bear the burden of proof in a case in which there is direct evidence
of a facially discriminatory policy is wholly inconsistent with settled
Title VII law." Id., at 133a. The Commission concluded: "We now
think BFOQ is the better approach." Id., at 134a.
|||In sum, Johnson Controls' policy "does not pass the simple test of
whether the evidence shows 'treatment of a person in a manner which but
for that person's sex would be different.'" Los Angeles Dept. of Water
and Power v. Manhart,
435 U.S. 702,
711 (1978), quoting Developments in the Law, Employment Discrimination and
Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1170 (1971).
We hold that Johnson Controls' fetal-protection policy is sex discrimination
forbidden under Title VII unless respondent can establish that sex is a
"bona fide occupational qualification."
|||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." 42 U. S. C. § 2000e-2(e)(1). We therefore turn to the
question whether Johnson Controls' fetal-protection policy
|[ 59 U.S.L.W. Page 201]|
is one of those "certain instances" that come within the BFOQ
|||The BFOQ defense is written narrowly, and this Court has read it narrowly.
See, e. g., Dothard v. Rawlinson,
433 U.S. 321,
332-337 (1977); Trans World Airlines, Inc. v. Thurston,
469 U.S. 111,
122-125 (1985). 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.
See Western Air Lines, Inc. v. Criswell,
472 U.S. 400
(1985). 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 job-related skills
|||Justice White defines "occupational" as meaning related to a
job. Post, at 212, n. 1. According to him, any discriminatory requirement
imposed by an employer is "job-related" simply because the employer
has chosen to make the requirement a condition of employment. In effect,
he argues that sterility may be an occupational qualification for women
because Johnson Controls has chosen to require it. This reading of "occupational"
renders the word mere surplusage. "Qualification" by itself would
encompass an employer's idiosyncratic requirements. By modifying "qualification"
with "occupational," Congress narrowed the term to qualifications
that affect an employee's ability to do the job.
|[ 59 U.S.L.W. Page 202]|
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.
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 was
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 sex as a proxy
for strength although it might be a fairly accurate one.
|||Similarly, some courts have approved airlines' layoffs of pregnant flight
attendants at different points during the first five months of pregnancy
on the ground that the employer's policy was necessary to ensure the safety
of passengers. See Harriss v. Pan American World Airways, Inc.,
649 F.2d 670
(CA9 1980); Burwell v. Eastern Air Lines, Inc.,
633 F.2d 361
(CA4 1980), cert. denied,
450 U.S. 965
(1981); Condit v. United Air Lines, Inc.,
558 F.2d 1176
(CA4 1977), cert. denied,
435 U.S. 934
(1978); In re National Airlines, Inc.,
434 F. Supp. 249
(SD Fla. 1977). In two of these cases, the courts pointedly indicated that
fetal, as opposed to passenger, safety was best left to the mother. Burwell,
633 F.2d, at 371;
434 F. Supp., at 259.
|||We considered safety to third parties in Western Airlines, Inc. v. Criswell,
supra, in the context of the ADEA. We focused upon "the nature of the
flight engineer's tasks," and the "actual capabilities of persons
over age 60" in relation to
|[ 59 U.S.L.W. Page 203]|
472 U.S., at 406.
Our safety concerns were not independent of the individual's ability to
perform the assigned tasks, but rather involved the possibility that, because
of age-connected debility, a flight engineer might not properly assist the
pilot, and might thereby cause a safety emergency. Furthermore, although
we considered the safety of third parties in Dothard and Criswell, those
third parties were indispensable to the particular business at issue. In
Dothard, the third parties were the inmates; in Criswell, the third parties
were the passengers on the plane. We stressed that in order to qualify as
a BFOQ, a job qualification must relate to the "'essence,'" Dothard,
433 U.S., at 333
(emphasis deleted), or to the "central mission of the employer's business,"
472 U.S., at 413.
|||Justice White ignores the "essence of the business" test and
so concludes that "protecting fetal safety while carrying out the duties
of battery manufacturing is as much a legitimate concern as is safety to
third parties in guarding prisons (Dothard) or flying airplanes (Criswell)."
Post, at 217. By limiting its discussion to cost and safety concerns and
rejecting the "essence of the business" test that our case law
has established, he seeks to expand what is now the narrow BFOQ defense.
Third-party safety considerations properly entered into the BFOQ analysis
in Dothard and Criswell because they went to the core of the employee's
job performance. Moreover, that performance involved the central purpose
of the enterprise. Dothard,
433 U.S., at 335
("The essence of a correctional counselor's job is to maintain prison
472 U.S., at 413
(the central mission of the airline's business was the safe transportation
of its passengers). Justice White attempts to transform this case into one
of customer safety. The unconceived fetuses of Johnson Controls' female
employees, however, are neither customers nor third parties whose safety
is essential to the business of battery manufacturing. No one can disregard
the possibility of injury to future children; the BFOQ, however,
|[ 59 U.S.L.W. Page 204]|
is not so broad that it transforms this deep social concern into an essential
aspect of battery making.
|||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 also the plain language
and history of the PDA.
|||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.
|||Justice White asserts that the PDA did not alter the BFOQ defense. Post,
at 218. He arrives at this conclusion by ignoring the second clause of the
Act, which states that "women affected by pregnancy, childbirth, or
related medical conditions shall be treated the same for all employment-related
purposes . . . as other persons not so affected but similar in their ability
or inability to work." 42 U. S. C. § 2000e(k). Until this day, every
Member of this Court had acknowledged that "the second clause [of the
PDA] could not be clearer: it mandates that pregnant employees 'shall be
|[ 59 U.S.L.W. Page 205]|
treated the same for all employment-related purposes' as non-pregnant employees
similarly situated with respect to their ability or inability to work."
California Federal Savings and Loan Assn. v. Guerra,
479 U.S. 272,
297 (1987) (White, J., dissenting). Justice White now seeks to read the
second clause out of the Act.
|||The legislative history confirms what the language of the PDA compels.
Both the House and 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. See Amending Title VII, Civil Rights Act of 1964, S. Rep.
No. 95-331, pp. 4-6 (1977):
|||"Under this bill, the treatment of pregnant women in covered employment
must focus not on their condition alone but on the actual effects of that
condition on their ability to work. Pregnant women who are able to work
must be permitted to work on the same conditions as other employees. . .
|||"Under this bill, employers will no longer be permitted to force
women who become pregnant to stop working regardless of their ability to
|||See also Prohibition of Sex Discrimination Based on Pregnancy, H. R. Rep.
No. 95-948, pp. 3-6 (1978).
|||This history counsels against expanding the BFOQ to allow fetal-protection
policies. The Senate Report quoted above states that employers may not require
a pregnant woman to stop working at any time during her pregnancy unless
she is unable to do her work. Employment late in pregnancy often imposes
risks on the unborn child, see Chavkin, Walking a Tightrope: Pregnancy,
Parenting, and Work, in Double Exposure 196, 196-202 (W. Chavkin ed. 1984),
but Congress indicated that the employer may take into account only the
woman's ability to get her job done. See Becker, From Muller v. Oregon to
Fetal Vulnerability Policies, 53 U. Chi.
|[ 59 U.S.L.W. Page 206]|
L. Rev. 1219, 1255-1256 (1986). With the PDA, Congress made clear that the
decision to become pregnant or to work while being either pregnant or capable
of becoming pregnant was reserved for each individual woman to make for
|||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 in Criswell and Dothard
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.*fn4
|||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
|[ 59 U.S.L.W. Page 207]|
PDA. 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
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. This argument is somewhat academic in light of our conclusion
that the company may not exclude fertile women at all; it perhaps is worth
noting, however, that Johnson Controls has shown no "factual basis
for believing that all or substantially all women would be unable to perform
safely and efficiently the duties of the job involved." Weeks v. Southern
Bell Tel. & Tel. Co.,
408 F.2d 228,
235 (CA5 1969), quoted with approval in Dothard,
433 U.S., at 333.
Even on this sparse record, it is apparent that Johnson Controls is concerned
about only a small minority of women. Of the eight pregnancies reported
among the female employees, it has not been shown that any of the babies
have birth defects or other abnormalities. The record does not reveal the
birth rate for Johnson Controls' female workers, but national statistics
show that approximately nine percent of all fertile women become pregnant
each year. The birthrate drops to two percent for blue collar workers over
age 30. See Becker, 53 U. Chi. L. Rev., at 1233. 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.
|[ 59 U.S.L.W. Page 208]|
|||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 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. See, e. g., Wolfe
v. Isbell, 291 Ala. 327, 333-334, 280 So. 2d 758, 763 (1973); Simon v. Mullin,
34 Conn. Supp. 139, 147, 380 A. 2d 1353, 1357 (1977). See also Note, 22
Suffolk U. L. Rev. 747, 754-756, and nn. 54, 57, and 58 (1988) (listing
cases). 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 noting that OSHA gave the problem
of lead lengthy consideration and concluded that "there is no basis
whatsoever for the claim that women of childbearing age should be excluded
from the workplace in order to protect the fetus or the course of pregnancy."
43 Fed. Reg. 52952, 52966 (1978). See also id., at 54354, 54398. 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. See 29 CFR § 1910.1025(k)(ii) (1990). 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 fetal-protection
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.
|[ 59 U.S.L.W. Page 209]|
Although the issue is not before us, Justice White observes that "it
is far from clear that compliance with Title VII will pre-empt state tort
liability." Post, at 213. The cases relied upon by him to support his
prediction, however, are inapposite. For example, in California Federal
Savings and Loan Assn. v. Guerra,
479 U.S. 272
(1987), we considered a California statute that expanded upon the requirements
of the PDA and concluded that the statute was not pre-empted by Title VII
because it was not inconsistent with the purposes of the federal statute
and did not require an act that was unlawful under Title VII. Id., at 291-292.
Here, in contrast, the tort liability that Justice White fears will punish
employers for complying with Title VII's clear command. When it is impossible
for an employer to comply with both state and federal requirements, this
Court has ruled that federal law pre-empts that of the States. See, e. g.,
Florida Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132,
|||This Court faced a similar situation in Farmers Union v. WDAY, Inc.,
360 U.S. 525
(1959). In WDAY, it held that § 315(a) of the Federal Communications Act
of 1934 barred a broadcasting station from removing defamatory statements
contained in speeches broadcast by candidates for public office. It then
considered a libel action which arose as a result of a speech made over
the radio and television facilities of WDAY by a candidate for the 1956
senatorial race in North Dakota. It held that the statutory prohibition
of censorship carried with it an immunity from liability for defamatory
statements made by the speaker. To allow libel actions "would sanction
the unconscionable result of permitting civil and perhaps criminal liability
to be imposed for the very conduct the statute demands of the licensee."
Id., at 531. It concluded:
|||"We are aware that causes of action for libel are widely recognized
throughout the States. But we have not hesitated to abrogate state law where
|[ 59 U.S.L.W. Page 210]|
its enforcement would stand 'as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.'" Id., at 535, quoting
Bethlehem Steel Co. v. New York State Labor Relations Bd.,
330 U.S. 767,
|||If state tort law furthers discrimination in the workplace and prevents
employers from hiring women who are capable of manufacturing the product
as efficiently as men, then it will impede the accomplishment of Congress'
goals in enacting Title VII. Because Johnson Controls has not argued that
it faces any costs from tort liability, not to mention crippling ones, the
pre-emption question is not before us. We therefore say no more than that
the concurrence's speculation appears unfounded as well as premature.
|||The tort-liability argument reduces to two equally unpersuasive propositions.
First, Johnson Controls attempts to solve the problem of reproductive health
hazards by resorting to an exclusionary policy. Title VII plainly forbids
illegal sex discrimination as a method of diverting attention from an employer's
obligation to police the workplace. Second, the spectre of an award of damages
reflects a fear that hiring fertile women will cost more. The extra cost
of employing members of one sex, however, does not provide an affirmative
Title VII defense for a discriminatory refusal to hire members of that gender.
435 U.S., at 716-718,
and n. 32. Indeed, in passing the PDA, Congress considered at length the
considerable cost of providing equal treatment of pregnancy and related
conditions, but made the "decision to forbid special treatment of pregnancy
despite the social costs associated therewith." Arizona Governing Comm.
for Tax Deferred Annuity and Deferred Compensation Plans v. Norris,
463 U.S. 1073,
1085, n. 14 (1983) (opinion of Marshall, J.). See Price Waterhouse v. Hopkins,
490 U.S. 228
|||We, of course, are not presented with, nor do we decide, a case in which
costs would be so prohibitive as to threaten the
|[ 59 U.S.L.W. Page 211]|
survival of the employer's business. We merely reiterate our prior holdings
that the incremental cost of hiring women cannot justify discriminating
|||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
208 U.S. 412
(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 PDA
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.
886 F.2d 871,
reversed and remanded.
|||JUSTICE 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
of the Civil Rights Act of 1964 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
|[ 59 U.S.L.W. Page 212]|
by the District Court and affirmed by the Court of Appeals.
|||In evaluating the scope of the BFOQ defense, the proper starting point
is the language of the statute. Cf. Demarest v. Manspeaker,
498 U.S. 177,
190 (1991); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens,
496 U.S. 226,
237 (1990). Title VII forbids discrimination on the basis of sex, except
"in those certain instances where . . . sex . . . is a bona fide occupational
qualification reasonably necessary to the normal operation of that particular
business or enterprise." 42 U. S. C. § 2000e-2(e)(1). For the fetal-protection
policy involved in this case to be a BFOQ, therefore, the policy must be
"reasonably necessary" to the "normal operation" of
making batteries, which is Johnson Controls' "particular business."
Although that is a difficult standard to satisfy, nothing in the statute's
language indicates that it could never support a sex-specific fetal-protection
|||On the contrary, a fetal-protection policy would be justified under the
terms of the statute if, for example, an employer could show that exclusion
of women from certain jobs was reasonably necessary to avoid substantial
tort liability. Common sense tells us that it is part of the normal operation
of business concerns to avoid causing injury to third parties, as well as
to employees, if for no other reason than to avoid
|[ 59 U.S.L.W. Page 213]|
tort liability and its substantial costs. This possibility of tort liability
is not hypothetical; every State currently allows children born alive to
recover in tort for prenatal injuries caused by third parties, see W. Keeton,
D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §
55, p. 368 (5th ed. 1984), and an increasing number of courts have recognized
a right to recover even for prenatal injuries caused by torts committed
prior to conception, see 3 F. Harper, F. James, & O. Gray, Law of Torts
§ 18.3, pp. 677-678, n. 15 (2d ed. 1986).
|||The Court dismisses the possibility of tort liability by no more than
speculating that if "Title VII bans sex-specific fetal-protection 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." Ante, at 208. Such speculation will be small comfort to employers.
First, it is far from clear that compliance with Title VII will pre-empt
state tort liability, and the Court offers no support for that proposition.*fn2
Second, although warnings may preclude claims by injured employees, they
will not preclude claims by injured children because the general rule is
that parents cannot waive causes of action on behalf of their children,
and the parents' negligence will not be imputed to the children.*fn3
Finally, although state tort liability
|[ 59 U.S.L.W. Page 214]|
for prenatal injuries generally requires negligence, it will be difficult
for employers to determine in advance what will constitute negligence. Compliance
with OSHA standards, for example, has been held not to be a defense to state
tort or criminal liability. See National Solid Wastes Management Assn. v.
918 F.2d 671,
680, n. 9 (CA7 1990) (collecting cases); see also 29 U. S. C. § 653(b)(4).
Moreover, it is possible that employers will be held strictly liable, if,
for example, their manufacturing process is considered "abnormally
dangerous." See Restatement (Second) of Torts § 869, Comment b (1979).
|||Relying on Los Angeles Dept. of Water and Power v. Manhart,
435 U.S. 702
(1978), the Court contends that tort liability cannot justify a fetal-protection
policy because the extra costs of hiring women is not a defense under Title
VII. Ante, at 210. This contention misrepresents our decision in Manhart.
There, we held that a requirement that female employees contribute more
than male employees to a pension fund, in order to reflect the greater longevity
of women, constituted discrimination against women under Title VII because
it treated them as a class rather than as individuals.
435 U.S., at 708,
716-717. We did not in that case address in any detail the nature of the
BFOQ defense, and we certainly did not hold that cost was irrelevant to
the BFOQ analysis. Rather, we merely stated in a footnote that "there
has been no showing that sex distinctions are reasonably necessary to the
normal operation of the Department's retirement plan." Id., at 716,
n. 30. We further noted that although Title VII does not contain a "cost-justification
defense comparable to the affirmative defense available in a price discrimination
|[ 59 U.S.L.W. Page 215]|
suit," "no defense based on the total cost of employing men and
women was attempted in this case." Id., at 716-717, and n. 32.
|||Prior decisions construing the BFOQ defense confirm that the defense is
broad enough to include considerations of cost and safety of the sort that
could form the basis for an employer's adoption of a fetal-protection policy.
In Dothard v. Rawlinson,
433 U.S. 321
(1977), the Court held that being male was a BFOQ for "contact"
guard positions in Alabama's maximum-security male penitentiaries. The Court
first took note of the actual conditions of the prison environment: "In
a prison system where violence is the order of the day, where inmate access
to guards is facilitated by dormitory living arrangements, where every institution
is understaffed, and where a substantial portion of the inmate population
is composed of sex offenders mixed at random with other prisoners, there
are few visible deterrents to inmate assaults on women custodians."
Id., at 335-336. The Court also stressed that "more [was] at stake"
than a risk to individual female employees: "The likelihood that inmates
would assault a woman because she was a woman would pose a real threat not
only to the victim of the assault but also to the basic control of the penitentiary
and protection of its inmates and the other security personnel." Ibid.
Under those circumstances, the Court observed that "it would be an
oversimplification to characterize [the exclusion of women] as an exercise
in 'romantic paternalism.' Cf. Frontiero v. Richardson,
411 U.S. 677,
684." Id., at 335.
|||We revisited the BFOQ defense in Western Air Lines, Inc. v. Criswell,
472 U.S. 400
(1985), this time in the context of the Age Discrimination in Employment
Act of 1967 (ADEA). There, we endorsed the two-part inquiry for evaluating
a BFOQ defense used by the Fifth Circuit Court of Appeals in Usery v. Tamiami
Trail Tours, Inc.,
531 F.2d 224
(1976). First, the job qualification must not be "so peripheral to
the central mission of the employer's business" that no discrimination
|[ 59 U.S.L.W. Page 216]|
could be "'reasonably necessary to the normal operation of the particular
472 U.S., at 413.
Although safety is not such a peripheral concern, id., at 413, 419,*fn4
the inquiry "'adjusts to the safety factor'" -- "'the greater
the safety factor, measured by the likelihood of harm and the probable severity
of that harm in case of an accident, the more stringent may be the job qualifications,'"
id., at 413 (quoting Tamiami, supra, at 236). Second, the employer must
show either that all or substantially all persons excluded "'"would
be unable to perform safely and efficiently the duties of the job involved,"'"
or that it is "'"impossible or highly impractical"'"
to deal with them on an individual basis.
472 U.S., at 414
(quoting Tamiami, supra, at 235 (quoting Weeks v. Southern Bell Telephone
& Telegraph Co.,
408 F.2d 228,
235 (CA5 1969))). We further observed that this inquiry properly takes into
account an employer's interest in safety -- "when an employer establishes
that a job qualification has been carefully formulated to respond to documented
concerns for public safety, it will not be overly burdensome to persuade
a trier of fact that the qualification is 'reasonably necessary' to safe
operation of the business."
472 U.S., at 419.
|||Dothard and Criswell make clear that avoidance of substantial safety risks
to third parties is inherently part of both an employee's ability to perform
a job and an employer's
|[ 59 U.S.L.W. Page 217]|
"normal operation" of its business. Indeed, in both cases, the
Court approved the statement in Weeks v. Southern Bell Telephone & Telegraph
Co., supra, that an employer could establish a BFOQ defense by showing that
"all or substantially all women would be unable to perform safely and
efficiently the duties of the job involved." Id., at 235 (emphasis
added). See Criswell,
472 U.S., at 414;
Dothard, supra, at 333. The Court's statement in this case that "the
safety exception is limited to instances in which sex or pregnancy actually
interferes with the employee's ability to perform the job," ante, at
204, therefore adds no support to its conclusion that a fetal-protection
policy could never be justified as a BFOQ. On the facts of this case, for
example, protecting fetal safety while carrying out the duties of battery
manufacturing is as much a legitimate concern as is safety to third parties
in guarding prisons (Dothard) or flying airplanes (Criswell).*fn5
|||Dothard and Criswell also confirm that costs are relevant in determining
whether a discriminatory policy is reasonably necessary for the normal operation
of a business. In Dothard, the safety problem that justified exclusion of
women from the prison guard positions was largely a result of inadequate
staff and facilities. See
433 U.S., at 335.
If the cost of employing women could not be considered, the employer there
should have been required to hire more staff and restructure the prison
environment rather than exclude women. Similarly, in Criswell the airline
could have been
|[ 59 U.S.L.W. Page 218]|
required to hire more pilots and install expensive monitoring devices rather
than discriminate against older employees. The BFOQ statute, however, reflects
"Congress' unwillingness to require employers to change the very nature
of their operations." Price Waterhouse v. Hopkins,
490 U.S. 228,
242 (1989) (plurality opinion).
|||The PDA, contrary to the Court's assertion, ante, at 204, did not restrict
the scope of the BFOQ defense. The PDA was only an amendment to the "Definitions"
section of Title VII, 42 U. S. C. § 2000e, and did not purport to eliminate
or alter the BFOQ defense. Rather, it merely clarified Title VII to make
it clear that pregnancy and related conditions are included within Title
VII's antidiscrimination provisions. As we have already recognized, "the
purpose of the PDA was simply to make the treatment of pregnancy consistent
with general Title VII principles." Arizona Governing Comm. for Tax
Deferred Annuity and Deferred Compensation Plans v. Norris,
463 U.S. 1073,
1085, n. 14 (1983).*fn6
|||This interpretation is confirmed by the PDA's legislative history. As
discussed in Newport News Shipbuilding & Dry Dock Co. v. EEOC,
462 U.S. 669,
678-679, and n. 17 (1983), the PDA was designed to overrule the decision
in General Electric Co. v. Gilbert,
429 U.S. 125
(1976), where the Court
|[ 59 U.S.L.W. Page 219]|
had held that "an exclusion of pregnancy from a disability-benefits
plan providing general coverage is not a gender-based discrimination at
all." Id., at 136. The PDA thus "makes clear that it is discriminatory
to treat pregnancy-related conditions less favorably than other medical
conditions." Newport News, supra, at 684. It does not, however, alter
the standards for employer defenses. The Senate Report, for example, stated
that the PDA "defines sex discrimination, as proscribed in the existing
statute, to include these physiological occurrences [pregnancy, childbirth,
and related medical conditions] peculiar to women; it does not change the
application of Title VII to sex discrimination in any other way." S.
Rep. No. 95-331, pp. 3-4 (1977) (emphasis added). Similarly, the House Report
stated that "pregnancy-based distinctions will be subject to the same
scrutiny on the same terms as other acts of sex discrimination proscribed
in the existing statute." H. R. Rep. No. 95-948, p. 4 (1978) (emphasis
|||In enacting the BFOQ standard, "Congress did not ignore the public
interest in safety." Criswell,
472 U.S., at 419.
The Court's narrow interpretation of the BFOQ defense in this case, however,
means that an employer cannot exclude even pregnant women from an environment
highly toxic to their fetuses. It is foolish to think that Congress intended
such a result, and neither the language of the BFOQ exception nor our cases
|[ 59 U.S.L.W. Page 220]|
|||Despite my disagreement with the Court concerning the scope of the BFOQ
defense, I concur in reversing the Court of Appeals because that court erred
in affirming the District Court's grant of summary judgment in favor of
Johnson Controls. First, the Court of Appeals erred in failing to consider
the level of risk avoidance that was part of Johnson Controls' "normal
operation." Although the court did conclude that there was a "substantial
risk" to fetuses from lead exposure in fertile women,
886 F.2d 871,
879-883, 898 (CA7 1989), it merely meant that there was a high risk that
some fetal injury would occur absent a fetal-protection policy. That analysis,
of course, fails to address the extent of fetal injury that is likely to
occur.*fn9 If the fetal-protection policy
insists on a risk-avoidance level substantially higher than other risk levels
|[ 59 U.S.L.W. Page 221]|
tolerated by Johnson Controls such as risks to employees and consumers,
the policy should not constitute a BFOQ.*fn10
|||Second, even without more information about the normal level of risk at
Johnson Controls, the fetal-protection policy at issue here reaches too
far. This is evident both in its presumption that, absent medical documentation
to the contrary, all women are fertile regardless of their age, see id.,
at 876, n. 8, and in its exclusion of presumptively fertile women from positions
that might result in a promotion to a position involving high lead exposure,
id., at 877. There has been no showing that either of those aspects of the
policy is reasonably necessary to ensure safe and efficient operation of
Johnson Controls' battery-manufacturing business. Of course, these infirmities
in the company's policy do not warrant invalidating the entire fetal-protection
|||Third, it should be recalled that until 1982 Johnson Controls operated
without an exclusionary policy, and it has not identified any grounds for
believing that its current policy is reasonably necessary to its normal
operations. Although it is now more aware of some of the dangers of lead
exposure, id., at 899, it has not shown that the risks of fetal harm or
the costs associated with it have substantially increased. Cf. Manhart,
435 U.S., at 716,
n. 30, in which we rejected a BFOQ defense because the employer had operated
prior to the discrimination with no significant adverse effects.
|||Finally, the Court of Appeals failed to consider properly petitioners'
evidence of harm to offspring caused by lead exposure in males. The court
considered that evidence only in its discussion of the business necessity
standard, in which it focused on whether petitioners had met their burden
886 F.2d, at 889-890.
The burden of proving that a discriminatory qualification is a BFOQ, however,
|[ 59 U.S.L.W. Page 222]|
the employer. See, e. g., Price Waterhouse,
490 U.S., at 248;
433 U.S., at 333.
Thus, the court should have analyzed whether the evidence was sufficient
for petitioners to survive summary judgment in light of respondent's burden
of proof to establish a BFOQ. Moreover, the court should not have discounted
the evidence as "speculative,"
886 F.2d, at 889,
merely because it was based on animal studies. We have approved the use
of animal studies to assess risks, see Industrial Union Dept. v. American
448 U.S. 607,
657, n. 64 (1980), and OSHA uses animal studies in establishing its lead
control regulations, see United Steelworkers of America, AFL-CIO-CLC v.
Marshall, 208 U.S. App. D.C. 60, 128, n. 97,
647 F.2d 1189,
1257, n. 97 (1980), cert. denied,
453 U.S. 913
(1981). It seems clear that if the Court of Appeals had properly analyzed
that evidence, it would have concluded that summary judgment against petitioners
was not appropriate because there was a dispute over a material issue of
|||As Judge Posner observed below:
|||"The issue of the legality of fetal protection is as novel and difficult
as it is contentious and the most sensible way to approach it at this early
stage is on a case-by-case basis, involving careful examination of the facts
as developed by the full adversary process of a trial. The record in this
case is too sparse. The district judge jumped the gun. By affirming on this
scanty basis we may be encouraging incautious employers to adopt fetal protection
policies that could endanger the jobs of millions of women for minor gains
in fetal safety and health.
|||"But although the defendant did not present enough evidence to warrant
the grant of summary judgment in its favor, there is no ground for barring
it from presenting additional evidence at trial. Therefore it would be equally
precipitate for us to direct the entry of judgment in the plaintiffs' favor.
. . ."
886 F.2d, at 908.
|[ 59 U.S.L.W. Page 223]|
JUSTICE SCALIA, concurring in the judgment.
|||I generally agree with the Court's analysis, but have some reservations,
several of which bear mention.
|||First, I think it irrelevant that there was "evidence in the record
about the debilitating effect of lead exposure on the male reproductive
system," ante, at 198. Even without such evidence, treating women differently
"on the basis of pregnancy" constitutes discrimination "on
the basis of sex," because Congress has unequivocally said so. Pregnancy
Discrimination Act, 92 Stat. 2076, 42 U. S. C. § 2000e(k).
|||Second, the Court points out that "Johnson Controls has shown no
factual basis for believing that all or substantially all women would be
unable to perform safely . . . the duties of the job involved," ante,
at 207 (internal quotation marks omitted). In my view, this is not only
"somewhat academic in light of our conclusion that the company may
not exclude fertile women at all," ibid. ; it is entirely irrelevant.
By reason of the Pregnancy Discrimination Act, it would not matter if all
pregnant women placed their children at risk in taking these jobs, just
as it does not matter if no men do so. As Judge Easterbrook put it in his
dissent below: "Title VII gives parents the power to make occupational
decisions affecting their families. A legislative forum is available to
those who believe that such decisions should be made elsewhere."
886 F.2d 871,
915 (CA7 1989).
|||Third, I am willing to assume, as the Court intimates, ante, at 208-211,
that any action required by Title VII cannot give rise to liability under
state tort law. That assumption, however, does not answer the question whether
an action is required by Title VII (including the BFOQ provision) even if
it is subject to liability under state tort law. It is perfectly reasonable
to believe that Title VII has accommodated state tort law through the BFOQ
exception. However, all that need be said in the present case is that Johnson
has not demonstrated a substantial risk of tort liability -- which is
|[ 59 U.S.L.W. Page 224]|
alone enough to defeat a tort-based assertion of the BFOQ exception.
|||Last, the Court goes far afield, it seems to me, in suggesting that increased
cost alone -- short of "costs . . . so prohibitive as to threaten the
survival of the employer's business," ante, at 210 -- cannot support
a BFOQ defense. See ante, at 206. I agree with Justice White's concurrence,
ante, at 214, that nothing in our prior cases suggests this, and in my view
it is wrong. I think, for example, that a shipping company may refuse to
hire pregnant women as crew members on long voyages because the on-board
facilities for foreseeable emergencies, though quite feasible, would be
inordinately expensive. In the present case, however, Johnson has not asserted
a cost-based BFOQ.
|||I concur in the judgment of the Court.
|||* Briefs of amici curiae urging reversal were filed for the United States
et al. by Solicitor General Starr, Assistant Attorney General Dunne, Deputy
Solicitor General Roberts, Deputy Assistant Attorney General Clegg, Clifford
M. Sloan, David K. Flynn, Charles A. Shanor, Gwendolyn Young Reams, Lorraine
C. Davis, and Carolyn L. Wheeler; for the State of California et al. by
John K. Van de Kamp, Attorney General, Andrea Sheridan Ordin, Chief Assistant
Attorney General, Marian M. Johnston, Supervising Deputy Attorney General,
and Manuel M. Medeiros, Deputy Attorney General; for the Commonwealth of
Massachusetts et al. by James M. Shannon, Attorney General of Massachusetts,
Jennifer Wriggins, Marjorie Heins, and Judith E. Beals, Assistant Attorneys
General, and by the Attorneys General for their respective States as follows:
Robert K. Corbin of Arizona, Clarine Nardi Riddle of Connecticut, Charles
M. Oberly III of Delaware, Robert A. Butterworth of Florida, William J.
Guste, Jr., of Louisiana, James E. Tierney of Maine, Frank J. Kelley of
Michigan, Hubert H. Humphrey III of Minnesota, Robert M. Spire of Nebraska,
Robert J. Del Tufo of New Jersey, Robert Abrams of New York, Anthony J.
Celebrezze, Jr., of Ohio, Robert H. Henry of Oklahoma, Hector Rivera-Cruz
of Puerto Rico, Jim Mattox of Texas, Jeffrey L. Amestoy of Vermont, Godfrey
R. de Castro of the Virgin Islands, and Kenneth O. Eikenberry of Washington;
for the American Civil Liberties Union et al. by Joan E. Bertin, Elisabeth
A. Werby, and Isabelle Katz Pinzler; for the American Public Health Association
et al. by Nadine Taub and Suzanne L. Mager; for Equal Rights Advocates et
al. by Susan Deller Ross and Naomi R. Cahn; for the NAACP Legal Defense
and Educational Fund, Inc., et al., by Julius LeVonne Chambers, Charles
Stephen Ralston, and Ronald L. Ellis; and for Trial Lawyers for Public Justice
by Arthur H. Bryant.
|||Briefs of amici curiae urging affirmance were filed for the Chamber of
Commerce of the United States of America by Timothy B. Dyk, Willis J. Goldsmith,
Stephen A. Bokat, and Robin S. Conrad; for Concerned Women for America by
Jordan W. Lorence, Cimron Campbell, and Wendell R. Bird; for the Equal Employment
Advisory Council et al. by Robert E. Williams, Douglas S. McDowell, Garen
E. Dodge, Jan S. Amundson, and Quentin Riegel; for the Industrial Hygiene
Law Project by Jack Levy and Ilise Levy Feitshans; for the National Safe
Workplace Institute by James D. Holzhauer; for the United States Catholic
Conference by Mark E. Chopko and John A. Liekweg; and for the Washington
Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and John C. Scully.
|||Briefs of amici curiae were filed for the Association of the Bar of the
City of New York et al. by Sidney S. Rosdeitcher, Evelyn Cohn, Janet Gallagher,
Janice Goodman, Arthur Leonard, and Jim Williams; for Natural Resources
Defense Council, Inc., by Thomas O. McGarity and Albert H. Meyerhoff; and
for the Pacific Legal Foundation et al. by Ronald A. Zumbrun and Anthony
|||*fn1 Since our grant of certiorari,
the Sixth Circuit has reversed a District Court's summary judgment for an
employer that had excluded fertile female employees from foundry jobs involving
exposure to specified concentrations of air-borne lead. See Grant v. General
908 F.2d 1303
(1990). The court said: "We agree with the view of the dissenters in
Johnson Controls that fetal protection policies perforce amount to overt
sex discrimination, which cannot logically be recast as disparate impact
and cannot be countenanced without proof that infertility is a BFOQ. . .
. Plaintiff . . . has alleged a claim of overt discrimination that her employer
may justify only through the BFOQ defense." Id., at 1310.
In Johnson Controls, Inc. v. Fair Employment & Housing Comm'n, 218
Cal. App. 3d 517, 267 Cal. Rptr. 158 (1990), the court held respondent's
fetal-protection policy invalid under California's fair-employment law.
|||*fn2 The statute reads:
"It shall be an unlawful employment practice for an employer --
"(1) to fail or refuse to hire or discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's
race, color, religion, sex, or national origin; or "(2) to limit,
segregate, or classify his employees or applicants for employment in any
way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee,
because of such individual's race, color, religion, sex, or national origin."
|||*fn3 The Act added subsection (k) to
§ 701 of the Civil Rights Act of 1964 and reads in pertinent part:
"The terms "because of sex" or "on the basis of sex"
[in Title VII] include, but are not limited to, because of or on the basis
of pregnancy, childbirth, or related medical conditions; and women affected
by pregnancy, childbirth, or related medical conditions shall be treated
the same for all employment-related purposes . . . as other persons not
so affected but similar in their ability or inability to work. . . ."
|||*fn4 Justice White predicts that our
reaffirmation of the narrowness of the BFOQ defense will preclude considerations
of privacy as a basis for sex-based discrimination. Post, at 219-220, n.
8. We have never addressed privacy-based sex discrimination and shall not
do so here because the sex-based discrimination at issue today does not
involve the privacy interests of Johnson Controls' customers. Nothing in
our discussion of the "essence of the business test," however,
suggests that sex could not constitute a BFOQ when privacy interests are
implicated. See, e. g., Backus v. Baptist Medical Center, 510 F. Supp. 1191
(ED Ark. 1981), vacated as moot,
671 F.2d 1100
(CA8 1982) (essence of obstetrics nurse's business is to provide sensitive
care for patient's intimate and private concerns).
|||*fn1 The Court's heavy reliance on the
word "'occupational'" in the BFOQ statute, ante, at 201, is unpersuasive.
Any requirement for employment can be said to be an occupational qualification,
since "occupational" merely means related to a job. See Webster's
Third New International Dictionary 1560 (1976). Thus, Johnson Controls'
requirement that employees engaged in battery manufacturing be either male
or nonfertile clearly is an "occupational qualification." The
issue, of course, is whether that qualification is "reasonably necessary
to the normal operation" of Johnson Controls' business. It is telling
that the Court offers no case support, either from this Court or the lower
federal courts, for its interpretation of the word "occupational."
|||*fn2 Cf. English v. General Electric
496 U.S. 72
(1990) (state law action for intentional infliction of emotional distress
not pre-empted by Energy Reorganization Act of 1974); California Federal
Savings and Loan Assn. v. Guerra,
479 U.S. 272,
290-292 (1987) (state statute requiring the provision of leave and reinstatement
to employees disabled by pregnancy not pre-empted by the Pregnancy Discrimination
Act (PDA), 92 Stat. 2076, 42 U. S. C. § 2000e(k)); Silkwood v. Kerr-McGee
464 U.S. 238,
256 (1984) (state punitive damage claim not pre-empted by federal laws regulating
nuclear power plants); Bernstein v. Aetna Life & Casualty,
843 F.2d 359,
364-365 (CA9 1988) ("It is well-established that Title VII does not
preempt state common law remedies"); see also 42 U. S. C. § 2000e-7.
|||*fn3 See, e. g., In re Estate of Infant
Fontaine, 128 N. H. 695, 700, 519 A. 2d 227, 230 (1986); Collins v. Eli
Lilly Co., 116 Wis. 2d 166, 200, n. 14, 342 N. W. 2d 37, 53, n. 14 (1984),
469 U.S. 826
(1984); Doyle v. Bowdoin College, 403 A. 2d 1206, 1208, n. 3 (Me. 1979);
Littleton v. Jordan, 428 S. W. 2d 472 (Tex. Civ. App. 1968); Fallaw v. Hobbs,
113 Ga. App. 181, 182-183, 147 S. E. 2d 517, 519 (1966); see also Restatement
(Second) of Torts § 488(1) (1965).
|||*fn4 An example of a "peripheral"
job qualification was in Diaz v. Pan American World Airways, Inc.,
442 F.2d 385
(CA5), cert. denied,
404 U.S. 950
(1971). There, the Fifth Circuit held that being female was not a BFOQ for
the job of flight attendant, despite a determination by the trial court
that women were better able than men to perform the "nonmechanical"
functions of the job, such as attending to the passengers' psychological
needs. The court concluded that such nonmechanical functions were merely
"tangential" to the normal operation of the airline's business,
noting that "no one has suggested that having male stewards will so
seriously affect the operation of an airline as to jeopardize or even minimize
its ability to provide safe transportation from one place to another."
442 F.2d, at 388.
|||*fn5 I do not, as the Court asserts,
ante, at 203, reject the "'essence of the business'" test. Rather,
I merely reaffirm the obvious -- that safety to third parties is part of
the "essence" of most if not all businesses. Of course, the BFOQ
inquiry "'adjusts to the safety factor.'" Criswell,
472 U.S., at 413
(quoting Usery v. Tamiami Trail Tours, Inc.,
531 F.2d 224,
236 (CA5 1976)). As a result, more stringent occupational qualifications
may be justified for jobs involving higher safety risks, such as flying
airplanes. But a recognition that the importance of safety varies among
businesses does not mean that safety is completely irrelevant to the essence
of a job such as battery manufacturing.
|||*fn6 Contrary to the Court's assertion,
ante, at 204-205, neither the majority decision nor the dissent in California
Federal Savings and Loan Assn. v. Guerra,
479 U.S. 272
(1987), is relevant to the issue whether the PDA altered the BFOQ standard
for pregnancy-related discrimination. In that case, the Court held that
the PDA did not pre-empt a state law requiring employers to provide leave
and reinstatement to pregnant employees. The Court reasoned that the PDA
was not intended to prohibit all employment practices that favor pregnant
women. Id., at 284-290. The dissent disagreed with that conclusion, arguing
that the state statute was preempted because the PDA's language that pregnant
employees "shall be treated the same for all employment-related purposes"
appeared to forbid preferential treatment of pregnant workers. Id., at 297-298.
Obviously, the dispute in that case between the majority and the dissent
was purely over what constituted discrimination under Title VII, as amended
by the PDA, not over the scope of the BFOQ defense.
|||*fn7 Even if the PDA did establish
a separate BFOQ standard for pregnancy-related discrimination, if a female
employee could only perform the duties of her job by imposing substantial
safety and liability risks, she would not be "similar in [her] ability
or inability to work" as a male employee, under the terms of the PDA.
See 42 U. S. C. § 2000e(k).
|||*fn8 The Court's cramped reading of
the BFOQ defense is also belied by the legislative history of Title VII,
in which three examples of permissible sex discrimination were mentioned
-- a female nurse hired to care for an elderly woman, an all-male professional
baseball team, and a masseur. See 110 Cong. Rec. 2718 (1964) (Rep. Goodell);
id., at 7212-7213 (interpretive memorandum introduced by Sens. Clark and
Case); id., at 2720 (Rep. Multer). In none of those situations would gender
"actually interfere with the employee's ability to perform the job,"
as required today by the Court, ante, at 204.
The Court's interpretation of the BFOQ standard also would seem to preclude
considerations of privacy as a basis for sex-based discrimination, since
those considerations do not relate directly to an employee's physical
ability to perform the duties of the job. The lower federal courts, however,
have consistently recognized that privacy interests may justify sex-based
requirements for certain jobs. See, e. g., Fesel v. Masonic Home of Delaware,
447 F. Supp. 1346
(Del. 1978), aff'd,
591 F.2d 1334
(CA3 1979) (nurse's aide in retirement home); Jones v. Hinds General Hospital,
666 F. Supp. 933
(SD Miss. 1987) (nursing assistant); Local 567 American Federation of
State, County, and Municipal Employees, AFL-CIO v. Michigan Council 25,
American Federation of State, County, and Municipal Employees, AFL-CIO,
635 F. Supp. 1010
(ED Mich. 1986) (mental health workers); Norwood v. Dale Maintenance System,
590 F. Supp. 1410
(ND Ill. 1984) (washroom attendant); Backus v. Baptist Medical Center,
510 F. Supp. 1191 (ED Ark 1981), vacated as moot,
671 F.2d 1100
(CA8 1982) (nursing position in obstetrics and gynecology department of
|||*fn9 Apparently, between 1979 and
1983, only eight employees at Johnson Controls became pregnant while maintaining
high blood lead levels, and only one of the babies born to this group later
recorded an elevated blood lead level. See ante, at 191;
886 F.2d, at 876-877.
|||*fn10 It is possible, for example,
that alternatives to exclusion of women, such as warnings combined with
frequent bloodtestings, would sufficiently minimize the risk such that it
would be comparable to other risks tolerated by Johnson Controls.
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