Weighing Some Heavy Metal

By Jill Smolowe

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."

"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

With reporting by Marc Hequet/St. Paul and Julie Johnson/Washington