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A discussion on johnson controls fetal protection policy

But some companies, like battery-maker Johnson Controls, say that because of potential fetal health risks, no fertile women need apply.

Should the Supreme Court let that policy stand? Stone Johnson Controls, Inc. Jobs on its production line are "good jobs," the kind rapidly disappearing from the American economy -- unionized, high-paying, skilled manual labor with good benefits and chances for advancement.

They are also the kind of jobs that have never been widely available to women. Just as women began to gain entry into these jobs, employers discovered a medical problem: The lead used in battery production endangers not just adult workers; it can build up in human tissues, and if passed on to a fetus can cause serious mental and physical problems for the child.

Starting in 1982, Johnson Controls advised its hiring offices to tell women there were no openings for women capable of bearing children. The company's fetal protection policy applies to women, right up to age seventy, who cannot provide medical evidence of their sterility, regardless of their intention or desire to have a child. The company bars women not only from jobs with high lead exposure, but from all jobs with any possibility of transfer or promotion into a high-lead job -- effectively, all production jobs.

At the company's Fullerton, California plant, for example, women are ineligible for all production jobs even though only 35 percent of the jobs a discussion on johnson controls fetal protection policy unsafe for pregnant women according to the company's blood and air sample standards.

In a case that comes before the U. The UAW lost in the federal district and appellate courts, which held that Johnson Controls was not guilty of sex discrimination under the federal Civil Rights Act of 1964. In a separate case, a woman who had been denied work at the company's Fullerton plant sued successfully under the state's Fair Employment and Housing Act, but that decision applies only in California.

At the federal level, a veritable who's who of labor, women's, civil rights, and public health organizations have now joined the UAW in trying to overturn the appellate decision. Lead can cause genetic damage prior to conception, and after conception can cause abnormal fetal development. Transferring a woman out of a high exposure job only after she became pregnant might not prevent damage to her fetus; lead is stored in human tissues for several months, and the woman might not realize she was pregnant until several weeks after conception.

Beyond a concern with the health of employees and their offspring, firms have a legal obligation under the federal Occupational Safety and Health Act to provide a safe working environment.

The occupational fetal health issue thus appears to pose a genuine dilemma: Policies to protect the health of children seem to require policies that restrict employment opportunities for women. Indeed, courts that have handled the fetal protection issue have framed their analyses as a clash between public health a discussion on johnson controls fetal protection policy civil rights.

With the issue posed this way, the courts can see only two possible solutions. One is to put the health of future generations first when the needs of children and the rights of women conflict. The remedy, according to this perspective, would be to allow and perhaps even to encourage employers to use sex-based exclusionary policies to protect children's health. Alternatively, some would let individuals make their own choices. That libertarian solution appears to absolve employers and governments of any moral responsibility.

But, like many libertarian solutions, it presupposes free choice when, in fact, it abandons individuals to face terms of choice set by parties more powerful than they are.

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In this case, letting women decide individually means forcing them to choose between their livelihood and risk to their baby's health. Risks to fetal development and children's health arise not only from many industrial chemicals and workplace substances, but also from poverty and lack of health insurance, among many other things.

Keeping fertile women out of risky jobs may preserve them from one health risk only to expose them to others that are equally serious. Moreover, the occupational risks to normal fetal development stem not only from exposure of mothers, but also from the exposure of fathers.

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Many toxins, including lead, may cause genetic damage to the father's sperm. So excluding fertile women from the workplace is neither a necessary nor adequate measure to protect babies. Once we step outside a mindset profoundly shaped by gender stereotypes, a third solution becomes apparent.

If we no longer see a woman's body as the only aspect of her life relevant to her child's welfare, if we understand that a father's as well as mother's health affects their baby, and if we recognize that women can control pregnancy responsibly, we can choose to modify the organization of work to permit parents to have healthy babies and to ensure equality between men and women. In this case, as in so many others, changing the terms of choice will enable us to protect both civil rights and public health.

The workplace fetal protection issue is part of a much larger societal trend toward controlling and a discussion on johnson controls fetal protection policy punishing women in the name of protecting the next generation.

Legislation to restrict abortions, court-mandated Caesarian sections against a woman's wishes, and criminal prosecution of women who take drugs while pregnant are other manifestations of this trend. A woman's health habits may even be considered in custody decisions. The New York Times reported in August, for example, that a California judge hearing a custody dispute ordered a woman not to smoke in the presence of her child until he turns eighteen.

Much, therefore, will hang on the Supreme Court's decision in the Johnson Controls case.

While the decision will not apply directly to other areas in which women are paying high costs for their biological capacity to bear children, it will signal how the highest court in the land intends to adjudicate such conflicts. The Emergence of Fetal Protection Johnson Controls is not the first or only company to deny jobs to fertile women on grounds of possible harm to a potential fetus.

In the late 1970s American Cyanamid made headlines when five of its female employees had themselves sterilized to keep their jobs. Goodrich, and Eastman Kodak have explicitly excluded women from jobs, claiming their exclusionary policies were designed to protect fetal health. Since 1978 the Equal Employment Opportunity Commission has received over 100 complaints charging that fetal protection policies were being used to discriminate against women.

A recent survey of chemical and electronics manufacturing firms in Massachusetts documents what many women's and civil rights advocates have long suspected. Exclusion of fertile women on grounds of fetal health is much more common among firms with mostly male workers than among those with mostly female employees.

Twenty-four percent of male-intensive firms restrict all women while only 7 percent of female-intensive firms do. Nearly 20 percent of the firms surveyed have policies excluding fertile or pregnant women from some job categories. The same survey revealed a disturbing lack of knowledge about reproductive hazards. Only 40 percent of the companies that reported using chemicals known to cause reproductive harms acknowledged that substances in their workplace might pose reproductive risks.

Fetal Risks, Women's Rights: Showdown at Johnson Controls

In numerous instances, companies have acted on evidence that a substance is harmful to female reproductive health while ignoring long available evidence that the same substance harms the male reproductive system as well. Of the 37 firms with restrictions on women's employment, only one had any restriction on men. Hundreds of thousands of jobs are already closed to women as a result of fetal protection policies.

The Bureau of National Affairs, a private research organization that monitors federal agencies, has estimated that some 20 million jobs involve working with chemical fetotoxins and could be closed to women if fetal protection policies like Johnson Controls' are allowed to stand. And that estimate does not count all the jobs involving non-chemical potential hazards to fetal development, such as radiation from medical equipment and other sources and electromagnetic fields from video display terminals.

Many firms, including Johnson Controls, say they are fearful of economic liabilities, should they be sued by a child harmed in utero.

In fact, current legal doctrine makes it unlikely that an employer would be forced to pay damages in these circumstances. Workers compensation law prevents most workers from bringing injury suits against their employers, and even if parents a discussion on johnson controls fetal protection policy to sue on behalf of their child, it would be extremely hard to prove that the employer's negligence caused their child's disability.

There are no known cases where an employer has been held liable. A Troubling Decision Title VII of the Civil Rights Act prohibits employers from discriminating against any person on account of sex as well as race, religion, and national origin.

After the Supreme Court refused to consider different treatment of pregnant women as "discrimination on account of sex," Congress amended the act in 1978 to clarify that sex discrimination included discrimination on the basis of "pregnancy and related conditions.

But Title VII also provides for an exception. Employers may use a discriminatory rule if they can establish that sex is a bona fide occupational qualification BFOQ for the job.

Courts do not grant this exception lightly In fact, the argument that race is a bona fide occupational qualification is never permissible as a defense in a race discrimination case. To prevent invidious stereotyping, the BFOQ defense requires an employer to demonstrate that "all or substantially all" women could not perform the job safely and efficiently.

The UAW and the employees bringing suit against the company have several objectives.

  • Why are we collectively ducking our obligations to children and suddenly putting the onus of responsibility for any risk on potential mothers?
  • They have become a force in workplaces like Johnson Controls' battery-making plants because the Civil Rights Act opened up these higher-paying jobs to them;
  • Both the majority opinion and Posner's dissent assert that when fetal health and women's civil rights conflict, the protections of Title VII must give way.

They want to establish that companies may not use fetal health as a pretext for continuing the job segregation by gender outlawed by the Civil Rights Act. Most of the women employees want to have their old jobs back or to be able to work in the higher-paying production jobs now off-limits to them. They argue that they are through with child bearing and do not want to be excluded merely because they are biologically capable of having another child.

The men, for their part, are concerned about their health and their offspring. They do not believe that the company's standards adequately protect them. The majority said that Johnson's policy is not intentional discrimination because it is intended to benefit the offspring of both male and female employees. The same logic would hardly be acceptable in cases of racial discrimination. Imagine a town government faced with interracial violence on public playgrounds.

Town officials decide the best way to stop the violence is to segregate the playgrounds, with separate facilities for black and white children. The policy is not discriminatory, officials say, because it protects children of both races from injury. Given the history of racial segregation in America and all the connotations of inferiority and subjugation that go with it, few people would agree that segregating the children was neutral and non-discriminatory.

Given the history of exclusion of women from so many occupations, the claims of benign intent are unconvincing. Because the Seventh Circuit Court saw Johnson Control's hiring rule as neutral on its face and only incidentally discriminatory, the company could use a weaker standard to defend its policy under Title VII. Under this business necessity" standard, the employer has only to show that its policy serves "legitimate employment goals" in some significant way and that there is no less discriminatory way of accomplishing the same ends.

The court found that protecting unborn children from disabilities was a legitimate employment goal, and it accepted Johnson Controls' claim that no other policy could protect unborn children. The majority went on to say that even if, for the sake of argument, someone wanted to hold Johnson Controls to the higher BFOQ standard, the company policy would still pass muster. Making batteries safely, according to the majority decision, is part of the essence of Johnson's business operation.

Women cannot make batteries without endangering any fetuses they might conceive while they have lead in a discussion on johnson controls fetal protection policy blood. For women, therefore, sterility a discussion on johnson controls fetal protection policy a bona fide occupational qualification for the job. By concluding that the company can still make batteries safely as long as fertile women are excluded, the majority justices define safety by a male norm.

A safe manufacturing process is one that is safe for men -- and for women who are biologically like men in their inability to bear children. Dissents on the Right Judges Richard Posner and Frank Easterbrook, both staunchly conservative Reagan appointees to the Seventh Circuit, dissented from the majority opinion, though they drew very different conclusions from the libertarian, free-market ideology they share.

Their differences are especially interesting for civil-rights watchers, because the conservative majority on the Supreme Court may well be influenced by them.

Judge Posner chides the majority for "recast[ing] what is plainly a. But Judge Posner also thinks courts should give great credence to employers' judgments about how to run their businesses and to their fears of liability The BFOQ standard, in his view, could excuse exclusionary fetal protection policies, as long as the exclusions were a bit more limited. He suggests that lowering the limit from age seventy and restricting the exclusions to jobs that are themselves dangerous would make the policy acceptable.

Both the majority opinion and Posner's dissent assert that when fetal health and women's civil rights conflict, the protections of Title VII must give way. Easterbrook's dissent, on the other hand, takes a more straightforward libertarian position.

But offering a spurious free choice to the individual woman worker would do nothing to promote safer workplaces for men, women, or fetuses. The majority staff of the House Committee on Education and Labor quickly issued a report repudiating the decision; the report insisted that employers may not satisfy their obligations under federal law to provide a safe workplace simply by kicking out fertile women.

Even the EEOC, which since 1981 has refused to act on complaints about fetal protection policies, issued new guidelines disagreeing with the Seventh Circuit and instructing its staff to follow the Easterbrook dissent when they investigate complaints.