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

Fetal Risks, Women's Rights: Showdown At Johnson Controls by Deborah A. Stone Johnson Controls, Inc. manufactures batteries in sixteen states. 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 are unsafe for pregnant women according to the company's blood and air sample standards.

In a case that comes before the U.S. Supreme Court this fall, Johnson Controls' policy of excluding all fertile women is being challenged by the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), which represents the employees. 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.

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Johnson Controls has a legitimate concern. 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 and 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. In this case, letting women decide individually means forcing them to choose between their livelihood and risk to their baby's health.

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The scientific and social facts, however, do not point to so narrow a choice and such limited alternatives. 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. 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 even 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. Numerous other companies, including General Motors, Gulf Oil, B.F. 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. 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 were 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." Since Johnson Controls employs men capable of fathering children and discriminates among female job applicants on the basis of the mere possibility of pregnancy, the company's policy would seem to be a prima facie case of sex discrimination.

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. 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 Court of Appeals for the Seventh Circuit ruled in 1989 that Johnson's policy did not violate Title VII. 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. Likewise for women. 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 their blood. For women, therefore, sterility is 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 ... case of intentional discrimination against a protected group" and says the case must be decided under the BFOQ standard. 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. He faults Johnson Controls, and implicitly his fellow justices, for assuming that "women are less able than men to make intelligent decisions&, that the interests of the next generation always trump the interests of living women, and that the only acceptable level of risk is zero."

"The purpose of Title VII," he says, "is to allow the individual woman to make that choice for herself."

Much of Easterbrook's dissent borrows from feminist criticism of exclusionary fetal protection policy He expresses the sentiment of many feminists when he calls the Johnson Controls case "likely the most important sex discrimination case in any court since 1964." Because he is more respectful of women and of the evidence of reproductive harms to men, his dissent tempts feminists and civil rights advocates into a curious alliance with libertarians. But offering a spurious free choice to the individual woman worker would do nothing to promote safer workplaces for men, women, or fetuses.

The Seventh Circuit decision leaves Congress, the Supreme Court, the Equal Employment Opportunities Commission (EEOC), and the Occupational Safety and Health Administration (OSHA) still wrestling with the problem of occupational fetal health. 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.

How Not to Think About Safety
Johnson Controls, like many companies, assumes that lead can harm a developing fetus only through maternal exposure. That assumption is perpetuated by a gender bias in research. Since most people believe that only maternal exposure matters, far less research is done on the impact of paternal exposure.

Nevertheless, the Seventh Circuit Court had plenty of evidence available. By 1978, OSHA had reviewed the research and concluded that lead-caused genetic damage to both sperm and egg cells can be passed on to the fetus. OSHA the Environmental Protection Agency, and the congressional Office of Technology Assessment have all reported that levels of exposure to most toxic agents high enough to harm a fetus probably harm adult males and females as well.

The California court, the Committee on Education and Labor staff, the congressional Office of Technology Assessment, and the EEOC have all found the OSHA evidence on lead compelling. But the Seventh Circuit majority, in a move that is certainly "making science from the bench," dismissed the evidence as "speculative and unconvincing" because it was based, they claimed, on animal studies. Animal studies are often the basis of risk evaluations; for example, they are the main sources of evidence used by the Food and Drug Administration to decide whether to test drugs in humans or to withdraw carcinogenic substances from the market. Moreover, the court ignored important studies of men with high lead exposures, showing adverse effects on their sperm as well as high rates of birth defects among their children.

As we think about ensuring safety in the workplace, we owe some credence to an agency that has expertise and experience in safety assessments. And OSHA to its credit, assumes that a health hazard affects both men and women until there is evidence to the contrary. In fact, of 26 chemicals OSHA has examined for reproductive toxicity, 21 were found to cause male infertility or genetic damage.

We should think hard about other, less discriminatory ways to safeguard fetal development. On this question, too, the Seventh Circuit majority was rather cavalier with the evidence and the canons of scientific reasoning.

Until 1982, Johnson Controls advised women of the dangers of lead, suggested that those planning a family not work in jobs with significant lead exposure, and asked them to sign a release form. The company had a variety of safety programs, including monitoring employees' blood lead levels, monitoring the air in the workplace, using respirators, and installing powerful cleaning systems. Employees of either sex found to have high blood lead levels were transferred to other jobs, with their rate of pay and benefits partially protected. The company told the courts it had to introduce its exclusionary policy because the earlier one had failed.

What was the evidence that the earlier safety program had failed? Over four years, six women had become pregnant while their blood lead content was above the level considered safe. Six out of how many? Johnson Controls never said, and no one in the lower court seems to have asked.

Did any of the children born to these women suffer harms caused by lead exposure? Johnson Controls' chief physician recalled one hyperactive child who had an elevated blood lead level. On cross-examination, the physician acknowledged that the child continued to be exposed to lead afterbirth. Though no one has any way of knowing whether the child's hyperactivity was caused by lead -- let alone by lead in its mother's blood -- the judges accepted six pregnancies and one hyperactive child as evidence that a non-discriminatory policy had failed.

Other important questions relevant to evaluating the earlier program were never asked. Did Johnson Controls provide health insurance coverage for routine gynecological care to enable female employees to get sound advice and effective contraception? Were women workers adequately informed about the dangers of lead? The release forms they were required to sign made the risks sound slight and the evidence tentative. Might the six women have chosen to get pregnant because they took the risks of harm to be tiny? Had other companies tried less restrictive fetal protection policies with success?

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It would be one thing to adopt a zero-risk posture toward children's health throughout our social policy. But our society has scarcely done all it can to prevent children from suffering malnutrition, homelessness, lack of medical care, and abusive violence. No landlord or government agency has an obligation to provide a home for a child, and no physician or hospital has a duty to give prenatal care to a mother. Why are we collectively ducking our obligations to children and suddenly putting the onus of responsibility for any risk on potential mothers?

Johnson Controls and the courts have dismissed other less discriminatory alternatives largely because they are blinded by pejorative stereotypes about women. Excluding all fertile women assumes women are pregnancies waiting to happen. Judge Posner articulates the women-are-careless theory best: "There are many careless pregnancies, as is shown by the frequency of abortion and of illegitimate birth." Notwithstanding Posner's logic, most women exert conscious control over whether they get pregnant. Ninety-three percent of married fertile women and 80 percent of unmarried fertile women use contraception.

The exclusion of women all the way to age 70 ignores social reality and fairly mocks women with biological possibilities. Pregnancy among women aged 50 to 70 is virtually nil the government does not even include women over 49 in its vital statistics on fertility. Pregnancy is rare (about 0.4 percent) among women aged 40 to 44, and rarer still among women aged 45 to 49 (0.02 percent). Even for women aged 35 to 39, the rate is only about 2 percent.

To be sure, unplanned pregnancies happen, but rather than assume women are incapable of controlling their fertility, why not ensure that they can by making the relevant knowledge and medical resources available? A less discriminatory alternative to Johnson Controls' policy would provide women workers with good gynecological care, coverage of contraceptives, and coverage of elective abortions if a woman should accidentally become pregnant while her blood level was high.

Equal Opportunity (Making Batteries Not Included)
Another persistent stereotype is that women who work do so for pin money. That assumption allows the Seventh Circuit majority to see the women's jobs as expendable. The justices take this view so much for granted that they slip it into a dependent clause: "Since [women] have become a force in the workplace as well as in the home because of their desire to better the family's station in life No one would feel it necessary to explain why men work. Men work because that is what men do, because they have to. Women, in the court's view, work not out of need, compulsion, or societal pressure, but out of mere "desire" to add something extra to the family's resources. In this picture, all the women have a male breadwinner to bring home the bulk of the bacon.

That picture is sociological nonsense. The kind of women who are likely to hold or seek production jobs at Johnson Controls have always been a force in the workplace. They used to work in the textile mills clothing and shoe factories, laundries and hospitals, and small goods assembly lines, where they got paid far less than men plying equivalent skills in the chemical and metal industries. 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. Many of them cannot or do not rely on a man to support them or their children. They also know that they cannot rely on the government, should they even want to. Welfare policy now expects women, even mothers of small children, to work. Moreover, according to affidavits collected by the American Civil Liberties Union, jobs at Johnson Controls would provide many women with health insurance coverage that they could not obtain through other jobs available in their area.

The majority judges on the Seventh Circuit think that since women work to better their station in life, a female employee might "rationally discount" the risks of lead exposure "in her hope and belief that her infant would not be adversely affected....

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