Subject:  AUTOMOBILE WORKERS v. JOHNSON CONTROLS, INC., Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, UAW, et al.
v. JOHNSON CONTROLS, INC.


certiorari to the united states court of appeals for the seventh circuit

No. 89-1215.  Argued October 10, 1990 -- Decided March 20, 1991

A primary ingredient in respondent's battery manufacturing process is lead,
occupational exposure to which entails health risks, including the risk of
harm to any fetus carried by a female employee.  After eight of its
employees became pregnant while maintaining blood lead levels exceeding
that noted by the Occupational Safety and Health Administration (OSHA) as
critical for a worker planning to have a family, respondent announced a
policy barring all women, except those whose infertility was medically
documented, from jobs involving actual or potential lead exposure exceeding
the OSHA standard.  Petitioners, a group including employees affected by
respondent's fetal-protection policy, filed a class action in the District
Court, claiming that the policy constituted sex discrimination violative of
Title VII of the Civil Rights Act of 1964, as amended.  The court granted
summary judgment for respondent, and the Court of Appeals affirmed.  The
latter court held that the proper standard for evaluating the policy was
the business necessity inquiry applied by other Circuits; that respondent
was entitled to summary judgment because petitioners had failed to satisfy
their burden of persuasion as to each of the elements of the business
necessity defense under Wards Cove Packing Co. v. Atonio, 490 U. S. 642;
and that even if the proper evaluative standard was bona fide occupational
qualification (BFOQ) analysis, respondent still was entitled to summary
judgment because its fetal-protection policy is reasonably necessary to
further the industrial safety concern that is part of the essence of
respondent's business.

Held: Title VII, as amended by the Pregnancy Discrimination Act (PDA),
forbids sex-specific fetal-protection policies.  Pp. 7-22.

    (a) By excluding women with childbearing capacity from lead-exposed
jobs, respondent's policy creates a facial classification based on gender
and explicitly discriminates against women on the basis of their sex under
MDRV 703(a) of Title VII.  Moreover, in using the words "capable of bearing
children" as the criterion for exclusion, the policy explicitly classifies
on the basis of potential for pregnancy, which classification must be
regarded, under the PDA, in the same light as explicit sex discrimination.
The Court of Appeals erred in assuming that the policy was facially neutral
because it had only a discriminatory effect on women's employment
opportunities, and because its asserted purpose, protecting women's
unconceived offspring, was ostensibly benign.  The policy is not neutral
because it does not apply to male employees in the same way as it applies
to females, despite evidence about the debilitating effect of lead exposure
on the male reproductive system.  Also, the absence of a malevolent motive
does not convert a facially discriminatory policy into a neutral policy
with a discriminatory effect.  Cf. Phillips v. Martin Marietta Corp., 400
U. S. 542.  Because respondent's policy involves disparate treatment
through explicit facial discrimination, the business necessity defense and
its burden-shifting under Wards Cove are inapplicable here.  Rather, as
indicated by the Equal Employment Opportunity Commission's enforcement
policy, respondent's policy may be defended only as a BFOQ, a more
stringent standard than business necessity.  Pp. 7-11.

    (b) The language of both the BFOQ provision set forth in MDRV 703(e)(1)
of Title VII -- which allows an employer to discriminate on the basis of
sex "in those certain instances where . . . sex . . . is a [BFOQ]
reasonably necessary to the normal operation of [the] particular business"
-- and the PDA provision that amended Title VII -- which specifies that,
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" -- as well as these provisions' 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.  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,
and the employer must direct its concerns in this regard to those aspects
of the woman's job-related activities that fall within the "essence" of the
particular business.  Dothard v. Rawlinson, 433 U. S. 321, 333, 335;
Western Air Lines, Inc. v. Criswell, 472 U. S. 400, 413.  The unconceived
fetuses of respondent's female employees are neither customers nor third
parties whose safety is essential to the business of battery manufacturing.
Pp. 11-17.

    (c) Respondent cannot establish a BFOQ.  Fertile women, as far as
appears in the record, participate in the manufacture of batteries as
efficiently as anyone else.  Moreover, respondent's professed concerns
about the welfare of the next generation do not suffice to establish a BFOQ
of female sterility.  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.  Pp. 17-18.

    (d) An employer's tort liability for potential fetal injuries and its
increased costs due to fertile women in the workplace do not require a
different result.  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.  See, e. g., Los
Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702, 716-718, and n.
32.  Pp. 18-21.

886 F. 2d 871, reversed and remanded.

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.  Scalia, J., filed an opinion concurring in
the judgment.

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Subject: 89-1215 -- OPINION, AUTOMOBILE WORKERS v. JOHNSON CONTROLS, INC.

NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-1215



INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, UAW, et al.,
PETITIONERS v. JOHNSON
CONTROLS, INC.


on writ of certiorari to the united states court of appeals for the seventh
circuit

[March 20, 1991]



    Justice Blackmun delivered the opinion of the Court.
    In this case we are concerned with an employer's genderbased
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?

I
    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.
    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:

"[P]rotection 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 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."  App. 140.

    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 level noted by the Occupational Health and Safety
Administration (OSHA) for a worker who was planning to have a family.  See
29 CFR MDRV 1910.1025 (1989).  The company responded by announcing a broad
exclusion of women from jobs that exposed them to lead:

". . .  [I]t 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 "[a]ll
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.

II
    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. MDRV 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 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."  Order of Feb. 25, 1985.
    The District Court granted summary judgment for defendant-respondent
Johnson Controls.  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 "[e]xpert
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 (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 Hospital, 726 F. 2d 1543 (CA11 1984), and Wright v. Olin
Corp., 697 F. 2d 1172 (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.  Cf. Hayes, 726 F. 2d, at 1549, and  Wright, 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., at 890-893.
    Having concluded that the business necessity defense was the
appropriate framework and that Johnson Controls satisfied 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.  "[T]he BFOQ defense need
not be narrowly limited to matters of worker productivity, product quality
and occupational safety."  Id., at 901, 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 is 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.
    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. MDRV 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, --- U. S. --- (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. {1}

III
    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. MDRV 2000e-2(a),
prohibits sexbased classifications in terms and conditions of employment,
in hiring and discharging decisions, and in other employment decisions that
adversely affect an employee's status. {2} 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 who already had confronted the issue, that sex-specific
fetal-protection policies do not involve facial discrimination.  886 F. 2d,
at 886-887; Hayes, 726 F. 2d, at 1547; Wright, 697 F. 2d, at 1190.  These
courts analyzed the policies as though they were facially neutral, and had
only a 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 questions.  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 protec[t] the offspring of all employees."  726 F. 2d, at 1548.
This Court faced a conceptually similar situation in Phillips v. Martin
Marietta Corp., 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 of 1978
(PDA), 92 Stat. 2076, 42 U. S. C. MDRV 2000e(k), in which Congress
explicitly provided 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."  {3}  "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 in that case was whether the
discrimination in question could be justified under MDRV 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 MDRV
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: "[W]e 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 &
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."

IV
    Under MDRV 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. MDRV 2000e-2(e)(1).  We
therefore turn to the question whether Johnson Controls' fetal-protection
policy is one of those "certain instances" that come within the BFOQ
exception.
    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 MDRV 4(f) of the Age Discrimination in
Employment Act of 1967 (ADEA), 81 Stat. 603, as amended, 29 U. S. C. MDRV
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 MDRV 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 and
aptitudes.
    The concurrence defines "occupational" as meaning related to a job.
Post, at 2, n. 1.  According to the concurrence, 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, the concurrence 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.
    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;
National Airlines, 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 those tasks.  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, or to the "central mission of the employer's business,"
Criswell, 472 U. S., at 413.
    The concurrence ignores the "essence of the business" test and so
concludes that "the safety to fetuses in 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 6.
By limiting its discussion to cost and safety concerns and rejecting the
"essence of the business" test that our case law has established, the
concurrence 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 security"); Criswell, 472 U. S., at
413 (the central mission of the airline's business was the safe
transportation of its passengers).  The concurrence 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, is not so broad that it transforms this deep social concern
into an essential aspect of batterymaking.
    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 the plain language and history of the Pregnancy
Discrimination Act.
    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
employmentrelated purposes."  42 U. S. C. MDRV 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.
    The concurrence asserts that the PDA did not alter the BFOQ defense.
Post, at 7.  The concurrence 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. MDRV 2000e(k).
Until this day, every Member of this Court had acknowledged that "[t]he
second clause [of the PDA] could not be clearer: it mandates that pregnant
employees `shall be treated the same for all employment-related purposes'
as nonpregnant employees similarly situated with respect to their ability
or inability to work."  California Federal S. & L. Assn. v. Guerra, 479 U.
S. 272, 297 (1987) (White, J., dissenting).  The concurrence now seeks to
read the second clause out of the Act.
    The legislative history confirms what the language of the Pregnancy
Discrimination Act 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 . . .
.

    . . . . .



    ". . . [U]nder this bill, employers will no longer be permitted to
force women who become pregnant to stop working regardless of their ability
to continue."

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.
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 herself.
    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. {4}

V
    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 by the Pregnancy Discrimination Act.  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 crashing."
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.

VI
    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 (1977);
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 MDRV 1910.125(k)(ii)
(1989).  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.
    Although the issue is not before us, the concurrence observes that "it
is far from clear that compliance with Title VII will preempt state tort
liability."  Post, at 3.  The cases relied upon by the concurrence to
support its prediction, however, are inapposite.  For example, in
California Federal S. & L. 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 the concurrence 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, 142143 (1963).
    This Court faced a similar situation in Farmers Union v. WDAY, Inc.,
360 U. S. 525 (1959).  In WDAY, it held that MDRV 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 satisfied that 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 Labor
Board, 330 U. S. 767, 773 (1947).

    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.  See Manhart, 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 Committee v. Norris, 463 U. S. 1073, 1084, n. 14 (1983) (opinion
of Marshall, J.).  See Price Waterhouse v. Hopkins, 490 U. S. 228 (1988).
    We, of course, are not presented with, nor do we decide, a case in
which costs would be so prohibitive as to threaten the survival of the
employer's business.  We merely reiterate our prior holdings that the
incremental cost of hiring women cannot justify discriminating against
them.

VII
    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 v. Oregon, 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 Pregnancy Discrimination Act 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.


 
 
 
 
------------------------------------------------------------------------------
1
    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 Motors Corp., 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. . . . [P]laintiff . . . 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, --- Cal. Rptr. --- (1990), the court held respondent's
fetal-protection policy invalid under California's fair-employment law.

2
    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."

3
    The Act added subsection (k) to MDRV 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 . . . ."

4
    The concurrence 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 9, n. 6.  We have never addressed
privacy-based sex discrimination and shall not do so here because the
sexbased 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).





Subject: 89-1215 -- CONCUR, AUTOMOBILE WORKERS v. JOHNSON CONTROLS, INC.

 
SUPREME COURT OF THE UNITED STATES


No. 89-1215



INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, UAW, et al.,
PETITIONERS v. JOHNSON
CONTROLS, INC.


on writ of certiorari to the united states court of appeals for the seventh
circuit

[March 20, 1991]



    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
unless it falls within the bona fide occupational qualification (BFOQ)
exception, set forth at 42 U. S. C. MDRV 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 by the District Court
and affirmed by the Court of Appeals.
I
    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. ---,
--- (1991); Board of Ed. of Westside Community Schools v. Mergens, 496 U.
S. ---, --- (1990) (slip op., at 7).  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.
MDRV 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 policy. {1}
    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 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 MDRV 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 MDRV
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 19.  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.
{2}  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. {3}
Finally, although state tort liability 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. Killian, 918 F.
2d 671, 680, n. 9 (CA7 1990) (collecting cases); see also 29 U. S. C. MDRV
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 MDRV 869,
comment b (1979).
    Relying on Los Angeles Dept. of Water and Power v. Man hart, 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 21.  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 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 "[m]ore [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 could be " `reasonably
necessary to the normal operation of the particular business.' "  472 U.
S., at 413.  Although safety is not such a peripheral concern, id., at 413,
419, {4} the inquiry " `adjusts to the safety factor' " -- " `[t]he 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 -- "[w]hen 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 "normal operation" of its business.
Indeed, in both cases, the Court approved the statement in Weeks v.
Southern Bell Telephone & Telegraph Co., 408 F. 2d 228 (CA5 1969), 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 14, 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). {5}
    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 Doth ard, 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 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 Pregnancy Discrimination Act (PDA), 42 U. S. C. MDRV 2000e(k),
contrary to the Court's assertion, ante, at 15, 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. MDRV 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 Committee
for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.
S. 1073, 1085, n. 14 (1983). {6}
    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 had held that "an exclusion of pregnancy from a disability
benefits plan providing general coverage is not a genderbased
discrimination at all."  Id., at 136.  The PDA thus "makes clear that it is
discriminatory to treat pregnancyrelated 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 "[p]regnancy-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 added). {7}
    In enacting the BFOQ standard, "Congress did not ignore the public
interest in safety."  Criswell, supra, 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
requires it. {8}
II
    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. {9}  If the fetal protection policy insists on a
risk-avoidance level substantially higher than other risk levels tolerated
by Johnson Controls such as risks to employees and consumers, the policy
should not constitute a BFOQ. {10}
    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 program.
    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
of proof.  886 F. 2d, at 889-890.  The burden of proving that a
discriminatory qualification is a BFOQ, however, rests with the employer.
See, e. g., Price Waterhouse, 490 U. S., at 248; Dothard, 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 Petroleum Institute, 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, 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 fact.
    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.
 
 
 
 
 
 

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1
    The Court's heavy reliance on the word "occupational" in the BFOQ
statute, ante, at 12, 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 non-fertile 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."

2
    Cf. English v. General Electric Co., 496 U. S. --- (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 pregnancy to employees disabled by pregnancy not
preempted by the PDA); Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 256
(1984) (state punitive damage claim not pre-empted by federal laws
regulating nuclear power plants); Bernstein v. Aetna Life & Cas., 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. MDRV 2000e-7.

3
    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), cert. denied, 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 MDRV 488(1) (1965).

4
    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 non-mechanical functions were merely
"tangential" to the normal operation of the airline's business, noting that
"[n]o 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.

5
    I do not, as the Court asserts, ante, at 14, 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 Tamiami, 531 F. 2d, at 236).  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.

6
    Contrary to the Court's assertion, ante, at 15, neither the majority
decision nor the dissent in California Federal S. & L. 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 preempt 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.

7
    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. MDRV 2000e(k).

8
    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 interfer[e] with the
employee's ability to perform the job," as required today by the Court,
ante, at 14.
    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
sexbased requirements for certain jobs.  See, e. g., Fesel v. Masonic Home
of Delaware, Inc., 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, Inc., 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 hospital).

9
    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 2; 886 F. 2d, at 876-877.

10
    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.





Subject: 89-1215 -- CONCUR, AUTOMOBILE WORKERS v. JOHNSON CONTROLS, INC.

 
SUPREME COURT OF THE UNITED STATES


No. 89-1215



INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, UAW, et al.,
PETITIONERS v. JOHNSON
CONTROLS, INC.


on writ of certiorari to the united states court of appeals for the seventh
circuit

[March 20, 1991]



    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 9.  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 of 1978, 92 Stat. 2076, 42 U. S. C. MDRV 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 16
(internal quotations 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."  International Union, UAW v.
Johnson Controls, Inc., 886 F. 2d 871, 915 (CA7 1989) (Easterbrook, J.,
dissenting).
    Third, I am willing to assume, as the Court intimates, ante, at 19-21,
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 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
survival of the employer's business," ante, at 21 -- cannot support a BFOQ
defense.  See ante, at 18.  I agree with Justice White's concurrence, ante,
at 4, 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.

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