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- 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.
-