College of Business Administration

Business Ethics and Social Issues Cases:

2.15 On-the-Job Fetal Injuries

Johnson Controls, Inc., is a battery manufacturer. In the battery manufacturing process, the primary ingredient is lead. Exposure to lead endangers health and can harm a fetus carried by a female who is exposed to lead.

Before Congress passed the Civil Rights Act of 1964, Johnson Controls did not employ any women in the battery manufacturing process. In June 1977, Johnson Controls announced its first official policy with regard to women who desired to work in battery manufacturing, which would expose them to lead:

Protection of the health of the unborn is the immediate and direct responsibility of the prospective parents. While the medical professional and the company can support them in the exercise of this responsibility, it cannot assume it for them without simultaneously infringing their rights as persons. 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.

The policy stopped short of excluding women capable of bearing children from jobs involving lead exposure but emphasized that a woman who expected to have a child should not choose a job that involved such exposure.

Johnson Controls required women who wished to be considered for employment in the lead exposure jobs to sign statements indicating that they had been told of the risks lead exposure posed to an unborn child: "...that women exposed to lead have a higher rate of abortion...not as clear as the relationship between cigarette smoking and cancer...but 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."

By 1982, however, the policy of warning had been changed to a policy of exclusion. Johnson Controls was responding to the fact that between 1979 and 1982, eight employees became pregnant while maintaining blood lead levels in excess of the thirty micrograms per deciliter, an exposure level that OSHA categorizes as critical. The company's new policy was as follows:

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 would expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights.

The policy defined women capable of bearing children as "all women except those whose inability to bear children is medically documented." The policy define unacceptable lead exposure as the OSHA standard of thirty micrograms per deciliter in the blood or thirty micrograms per cubic centimeter in the air.

In 1984, three Johnson Controls employees filed suit against the company on the grounds that the fetal-protection policy was a form of sex discrimination that violated Title VII of the Civil Rights Act. The three employees included Mary Craig, who had chosen to be sterilized to avoid losing a job that involved lead exposure; Elsie Nason, a fifty-year-old divorcee who experienced a wage decrease when she transferred out of a job in which she was exposed to lead; and Donald Penney, a man who was denied a leave of absence so that he could lower his lead level because he intended to become a father. The trial court certified a class action that included all past, present, and future Johnson Controls' employees who had been or would continue to be affected by the fetal-protection policy Johnson Controls implemented in 1982.

At the trial, uncontroverted evidence showed that lead exposure affects the reproductive abilities of men and women and that the effects of exposure on adults are as great as those on a fetus, although the fetus appears to be more vulnerable to exposure. Johnson Controls maintained that its policy was a product of business necessity.

The employees argued in turn that the company allowed fertile men, but not fertile women, to choose whether they wished to risk their reproductive health for a particular job. Johnson Controls responded that it had based its policy not on any intent to discriminate, but rather on its concern for the health of unborn children. Johnson Controls also pointed out that inasmuch as more than forty states recognize a parent's right to recover for a prenatal injury based on negligence or wrongful death, its policy was designed to prevent its liability for such fetal injury or death. The company maintained that simple compliance with Title VII would not shelter it from state tort liability for injury to a parent or child.

Johnson Controls also maintained that its policy represented a bona fide occupational qualification and that it was requiring medical certification of non-childbearing status to avoid substantial liability for injuries.

Discussion Questions

1. As the director of human resources for Johnson Controls, would you support or change the policy on women performing lead-exposure tasks? Why?

2. Why should women be given--or not given--the choice to accept the risk of exposure?

3. To what extent should a woman have the right to make decisions that will affect not only her health but the health of her unborn child? To what extent should a woman's consent to or acknowledgment of danger mitigate an employer's liability? What if a child born with lead-induced birth defects sues? Should the mother's consent apply as a defense?

4. The U.S. Supreme Court eventually decided Johnson Controls' policy was discriminatory and a violation of Title VII (International Union v. Johnson Controls, Inc.). What steps would you take as director of human resources to create a "policy-free" work setting?

5. At what times, if any, should discrimination issues be subordinate to other issues, such as the risk of danger to unborn children?

Source

International Union v. Johnson Controls, Inc., 499 U.S. 187 (1991)

Additional Legal Findings:

The United States District Court for the Eastern District of Wisconsin...granted summary judgment for employer. On appeal, the Court of Appeals of the Seventh Circuit...affirmed...

The Supreme Court...held that: (1) employer's policy was facially discriminatory, and (2) employer did not establish that sex was a bona fide occupational qualification (BFOQ).

...standard was facially discriminatory because it required only female employees to produce proof that they were not capable of reproducing, despite evidence of the debilitating effect of lead exposure on male reproductive system; thus, business necessity test was inapplicable, and policy could be defended only if it was a bona fide occupational qualification (BFOQ)

...the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect...

Bona fide occupational qualification (BFOQ) provision of Title VII, and Pregnancy Discrimination Act (PDA) which amended it, prohibit employer from discriminating against a woman because of her capacity to become pregnant, unless her reproductive potential prevents her from performing duties of her job...

The so-called safety exception to the BFOQ is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform...The unconceived fetuses of respondent's female employees are neither customers nor third parties whose safety is essential to the business of battery manufacturing.

Title VII, as amended by the PDA, mandates that decisions about the welfare of future children be left to the parents...who conceive, bear, support, and raise them rather than to the employers who hire those parents or the courts.

If...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.

(Dissenting) ...it is far from clear that Title VII will preempt state tort liability...Compliance with OSHA standards, for example, has been held not to be a defense to state tort of criminal liability.

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..."Concerns about a tiny minority of women cannot set the standard by which all are judged."

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