TIME: Almanac 1993/TIME Almanac 1993.iso/time/040191/0401110.000

Text File | 1992-08-28 | 6.0 KB | 130 lines

                                                                                LAW, Page 60

Weighing Some Heavy Metal


The Supreme Court rules that potential health risks to a fetus
are no excuse to discriminate against women in the workplace

By JILL SMOLOWE -- Reported by Marc Hequet/St. Paul and Julie
Johnson/Washington


    "Congress made clear that the decision . . . to work while
being either pregnant or capable of becoming pregnant was
reserved for each individual woman to make for herself."

     -- Harry Blackmun


    Which matters more, the rights of a fertile woman to work
in the job she wants and is qualified for, or the rights of
employers to impose work rules to protect her unborn children?


    That was the question the Supreme Court faced last week as
it addressed for the first time the controversial issue of
industrial fetal-protection policies. The Justices' answer, in
a decision that could affect millions of workingwomen:
companies cannot exclude fertile females from certain high-risk
jobs because of the potential harm to unborn babies. "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,"
wrote Justice Harry Blackmun in a majority opinion for five
Justices. "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."

    The unambiguous ruling in the case of Automobile Workers v.
Johnson Controls, Inc., which overturned an appellate court
decision, was immediately hailed as a major victory by women's
rights activists, labor unions and civil liberties groups. "The
court made it clear today that sex discrimination is not a
legal solution to workplace hazards," said Judith Lichtman,
president of the Women's Legal Defense Fund. "The Justices
struck down a sex-based policy that threatened to deny 15
million to 20 million industrial jobs to women."

    Big Business, on the other hand, greeted the ruling with
disappointment and skepticism. Corporate officials feared that
a number of companies may be exposed to large damage suits once
they revise policies that the court has now found to be in
violation of Title VII of the Civil Rights Act of 1964, which
prohibits sex discrimination. Johnson Controls, a
Milwaukee-based manufacturer of automobile batteries, is just
one of more than a dozen major companies -- among them, Gulf
Oil, B.F. Goodrich, General Motors and Du Pont -- that now must
reconsider fetal-protection guidelines.

    The Supreme Court decision ended a seven-year battle over
safety policies at 13 factories operated by the battery-making
firm, which uses large quantities of lead in its manufacturing
processes. Johnson Controls strictly excluded women capable of
bearing children from any job where lead readings reached
specified levels. Company officials acted on the grounds that
medical evidence indicated that contamination of a mother could
cause serious damage to the nervous system of any fetus she
carried. In supporting the company two years ago, the Seventh
Circuit Court of Appeals ruled that those who opposed Johnson
had failed to show how anything less than a sweeping measure
would eliminate the hazard.

    In last week's decision, however, Justice Blackmun found the
discriminatory nature of the policy to be a more palpable
danger. "The bias in Johnson Controls' policy is obvious," he
wrote. "Fertile men, but not fertile women, are given a choice
as to whether they wish to risk their reproductive health for
a particular job." Blackmun was supported by Justices Thurgood
Marshall, Sandra Day O'Connor, John Paul Stevens and David
Souter, who as the newest member of the court was weighing in
with his first significant vote on a women's rights issue.

    Justice Antonin Scalia would have allowed companies only a
little more latitude. In a concurring opinion, he suggested
that in rare instances employers might be permitted to exclude
pregnant women from jobs where the ensuing costs for ensuring
a woman's health care would be "inordinately expensive." But
Scalia had already telegraphed his rejection of Johnson
Controls' practices. Last October, when the case was argued
before the court, Scalia, who has fathered nine children, took
the company's lawyer to task for making "a farce of the
Pregnancy Discrimination Act." That act, a 1978 amendment to
Title VII, ensured that federal antibias protections cover
pregnant workers. In another concurring opinion, Chief Justice
William Rehnquist and Justices Anthony Kennedy and Byron White
upheld the majority decision but allowed that there may be
instances where "sex-specific fetal protection policy" is
justifiable.

    The affected companies made clear that they would begin
searching for alternative safeguards. Du Pont health-and-safety
vice president Bruce Karrh said the company would continue to
inform workers about workplace hazards. "The only difference,"
he says, "will be that instead of us making the decision,
they'll have the option." Du Pont may also consider requiring
women of childbearing years to wear additional protective
clothing in high-risk areas. Denise Zutz, director of corporate
communication at Johnson Controls, said her firm would also
"doubtless consider going back to some sort of voluntary
policy," as had been the company's practice prior to 1982.

    For at least some of the eight plaintiffs in the case, the
victory was bittersweet. In 1984 Gloyce Qualls, 41, was
involuntarily transferred from a high-risk area at Johnson
Controls, where she welded posts onto batteries, to a safer
workplace, where she cleaned and installed vents in motorcycle
batteries. The move halved her salary. To get back to the
higher-paying post, Qualls underwent tubal ligation. She
subsequently married and now regrets that she can no longer bear
children. "Nothing really would make up for it," she says.
"But this decision will help other women."