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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.