International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc

Brief Fact Summary.

The United States Court of Appeals for the Seventh Circuit affirmed the summary judgment in favor of the Respondent, Johnson Controls, Inc. (Respondent), employer under its defense that employer’s discriminatory fetal-protection policy was a business necessity and under a bona fide occupational qualification (BFOQ) analysis. The Petitioner, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (Petitioner), on behalf of class of female employees, sought a writ of certiorari from the United States Supreme Court (Supreme Court).

Synopsis of Rule of Law.

Pregnancy Discrimination Act (PDA), 42 U.S.C.S. Section: 2000e(k), explicitly provides that, for purposes of Title VII, discrimination “‘on the basis of sex’” includes discrimination because of or on the basis of pregnancy, childbirth, or related medical conditions. The PDA 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.

Facts.

The Respondent manufactured batteries. The assembly process entailed exposure to high levels of lead. After discovering that eight of its female employees became pregnant while maintaining blood lead levels in excess of those thought safe by the Occupational Safety and Health Administration (OSHA), the Respondent barred all its female employees, with the exception of those with medically documented infertility, from engaging in tasks that required exposure to lead in excess of recommended OSHA levels. The Petitioner challenged the Respondent’s fetal-protection policy as sexually discriminatory in violation of Title VII of the 1964 Civil Rights Act (Act). The Seventh Circuit affirmed a district court decision in favor of the Respondent and the Petitioner appealed. The Supreme Court granted certiorari.

Issue.

Did the Respondent’s policy barring the participation of potentially fertile and pregnant women in occupations that could be harmful to their reproductive abilities constitute sexual discrimination in violation of Title VII of the Act?

Held.

Yes. In a unanimous decision, the Supreme Court held that even well intentioned proposals are not allowed if they are discriminatory. The Respondent’s fetal-protection plan discriminated against women. Despite evidence about the debilitating effect of lead exposure on the male reproductive system, employer’s policy only addressed female employees.
The Supreme Court also held that this discrimination could not be justified as a BFOQ since the exception only permits employers to discriminate based on qualities that detrimentally impact on an employee’s job performance. In the present case, although lead exposure may be harmful to the unborn, the Respondent furnished no proof that it detracted from its female employees’ abilities to perform any of their essential tasks.

Discussion.

Johnson underscores how workplace discrimination on the basis of sex is not limited to sexual harassment. As Title XI, U.S.C.A. Section: 1681 states, ” No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” This statute has been interpreted as creating an implied private right of action. Johnson relies on a related statute, Title VII of the Act, which prohibits employment discrimination based on race, color, religion, sex and national origin. (The Civil Rights Act of 1991 (Pub. L. 102-166) (CRA) amends several sections of Title VII.)
As applied here, the Supreme Court stated, “An employer’s fetal-protection policy is sex discrimination forbidden under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. Section: 2000e et seq., unless the employer can establish that sex is a “bona fide occupational qualification.” Specifically, the Supreme Court noted, “Under Section: 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.” The exception, however, is generally applied narrowly. In defining its parameters, the Supreme Court explained, “The wording of the bona find occupational qualification 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 and aptitudes.”
The Supreme Court directly addressed the issue, raised by the lower court, of tort liability and the increased cost of fertile women in the workplace: “An employer’s tort liability for potential fetal injuries and its increased costs due to fertile women in the workplace do not require [that employers, for fear of liability, make decisions about the welfare of future children]. 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. Moreover, the incremental cost of employing members of one sex cannot justify a discriminatory refusal to hire members of that gender.”
As noted, Title VII was amended in 1991 and the relevant section with respect to Johnson addresses pregnancy specifically. As the Supreme Court pointes out: “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.” The Supreme Court stated flatly, “Women who are either pregnant or potentially pregnant must be treated like others similar in their ability to work. 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.” Thus the Supreme Court reversed the decision and remanded the matter for further proceedings.

Torts Keyed to Epstein (Eighth Edition)

CHAPTER I.