AUTOMOBILE WORKERS v. JOHNSON CONTROLS, INC., 499 U.S. 187 (1991) 111 S.Ct. 1196
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
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. 197-211.
(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 Ã‚Â§ 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. 197-200.
(b) The language of both the BFOQ provision set forth in Ã‚Â§ 703(e)(1) of
Title VII Ã¢â‚¬â€ 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" Ã¢â‚¬â€ and the PDA provision that amended Title VII Ã¢â‚¬â€ 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" Ã¢â‚¬â€ 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.
(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. 206-207.
(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. 208-211.
886 F.2d 871 (CA7 1989), 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, post, p. 211. SCALIA, J.,
filed an opinion concurring in the judgment, post, p. 223.
Marsha S. Berzon argued the cause for petitioners. With
her on the briefs were Jordan Rossen, Ralph O. Jones, and
Stanley S. Jaspan argued the cause for respondent. With
him on the briefs were Susan R. Maisa, Anita M. Sorensen,
Charles G. Curtis, Jr., and John P. Kennedy.[fn*]
[fn*] Page 189
Briefs of amici curiae urging reversal were filed for the United
States et al. by Solicitor General Starr, Assistant Attorney General Dunne,
Deputy Solicitor General Roberts, Deputy Assistant Attorney General Clegg,
Clifford M. Sloan, David K. Flynn, Charles A. Shanor, Gwendolyn
Young Reams, Lorraine C. Davis, and Carolyn L. Wheeler; for the State
of California et al. by John K. Van de Kamp, Attorney General, Andrea
Sheridan Ordin, Chief Assistant Attorney General, Marian M. Johnston,
Supervising Deputy Attorney General, and Manuel M. Medeiros, Deputy
Attorney General; for the Commonwealth of Massachusetts et al. by James
M. Shannon, Attorney General of Massachusetts, Jennifer Wriggins,
Marjorie Heins, and Judith E. Beals, Assistant Attorneys General, and
by the Attorneys General for their respective States as follows: Robert
K. Corbin of Arizona, Clarine Nardi Riddle of Connecticut, Charles M.
Oberly III of Delaware, Robert A. Butterworth of Florida, William J.
Guste, Jr., of Louisiana, James E. Tierney of Maine, Frank J. Kelley of
Michigan, Hubert H. Humphrey III of Minnesota, Robert M. Spire of
Nebraska, Robert J. Del Tufo of New Jersey, Robert Abrams of New York,
Anthony J. Celebrezze, Jr., of Ohio, Robert H. Henry of Oklahoma, Hector
Rivera-Cruz of Puerto Rico, Jim Mattox of Texas, Jeffrey L. Amestoy
of Vermont, Godfrey R. de Castro of the Virgin Islands, and Kenneth
O. Eikenberry of Washington; for the American Civil Liberties Union et al.
by Joan E. Bertin, Elisabeth A. Werby, and Isabelle Katz Pinzler; for the
American Public Health Association et al. by Nadine Taub and Suzanne L.
Mager; for Equal Rights Advocates et al. by Susan Deller Ross and Naomi
R. Cahn; for the NAACP Legal Defense and Educational Fund, Inc.,
et al., by Julius LeVonne Chambers, Charles Stephen Ralston, and
Ronald L. Ellis; and for Trial Lawyers for Public Justice by Arthur H.
Briefs of amici curiae urging affirmance were filed for the Chamber of
Commerce of the United States of America by Timothy B. Dyk, Willis
J. Goldsmith, Stephen A. Bokat, and Robin S. Conrad; for Concerned
Women for America by Jordan W. Lorence, Cimron Campbell, and Wendell
R. Bird; for the Equal Employment Advisory Council et al. by Robert
E. Williams, Douglas S. McDowell, Garen E. Dodge, Jan S. Amundson,
and Quentin Riedel; for the Industrial Hygiene Law Project by Jack Levy
and Ilise Levy Feitshans; for the National Safe Workplace Institute by
James D. Holzhauer; for the United States Catholic Conference by Mark
E. Chopko and John A. Liekweg; and for the Washington Legal Foundation
by Daniel J. Popeo, Paul D. Kamenar, and John C. Scully.
Briefs of amici curiae were filed for the Association of the Bar of the
City of New York et al. by Sidney S. Rosdeitcher, Evelyn Cohn, Janet
Gallagher, Janice Goodman, Arthur Leonard, and Jim Williams; for Natural
Resources Defense Council, Inc., by Thomas O. McGarity and Albert
H. Meyerhoff; and for the Pacific Legal Foundation et al. by Ronald
A. Zumbrun and Anthony T. Caso.
JUSTICE BLACKMUN delivered the opinion of the Court.
In this case, we are concerned with an employer's gender-based
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?
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 C.F.R. Ã‚Â§ 1910.1025 (1989). The company responded by
announcing a broad exclusion of women from jobs that exposed them to
". . . [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.
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. Ã‚Â§ 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." No. 84-C-0472 (Feb. 25, 1985), pp. 1, 2.
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 Ã¢â‚¬â€ unlike the Fourth and Eleventh Circuits Ã¢â‚¬â€ 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."
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. Ã‚Â§ 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, 494 U.S. 1055 (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.[fn1]
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. Ã‚Â§ 2000e-2(a),
prohibits sex-based classifications in terms and conditions of
employment, in hiring and discharging decisions, and in other
employment decisions that adversely affect an employee's status.[fn2]
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
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 Ã¢â‚¬â€ 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. Ã‚Â§ 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."[fn3]
"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 Ã‚Â§ 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 Ã‚Â§ 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
Under Ã‚Â§ 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. Ã‚Â§ 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 Ã‚Â§ 4(f) of the Age
Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 603, as
amended, 29 U.S.C. Ã‚Â§ 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
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 Ã¢â‚¬â€ certain, normal, particular Ã¢â‚¬â€
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.
JUSTICE WHITE defines "occupational" as meaning related to a job. Post,
at 212, n. 1. According to the him, 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,
he 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 Ã¢â‚¬â€
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 (S.D. 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.
JUSTICE WHITE ignores the "essence of the business" test, and so
concludes that "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)." Post, at 217. By limiting its discussion to
cost and safety concerns and rejecting the "essence of the business" test
that our case law has established, the he 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). JUSTICE WHITE 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 battery-making.
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 employment-related purposes." 42 U.S.C. Ã‚Â§ 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.
JUSTICE WHITE asserts that the PDA did not alter the BFOQ defense.
Post, at 218. The he 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. Ã‚Â§ 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). JUSTICE WHITE now seeks to read the second clause out of
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.
"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. 95-48, 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.[fn4]
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 PDA. 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.
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. Sup. 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 C.F.R. Ã‚Â§ 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, JUSTICE WHITE observes that "it is
far from clear that compliance with Title VII will preempt state tort
liability." Post, at 213. The cases relied upon by HIM 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 preempted 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 JUSTICE WHITE 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 preempts that of
the States. See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132, 142-143 (1963).
This Court faced a similar situation in Farmers Union v. WDAY, Inc.,
360 U.S. 525 (1959). In WDAY, it held that Ã‚Â§ 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 1966 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
"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 preemption 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, 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.
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.
[fn1] Page 196
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 airborne 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, 267 Cal.Rptr. 158 (1990), the court held respondent's
fetal-protection policy invalid under California's fair-employment law.
[fn2] Page 197
The statute reads:
"It shall be an unlawful employment practice for an employer Ã¢â‚¬â€
"(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."
[fn3] Page 198
The Act added subsection (k) to Ã‚Â§ 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. . . ."
[fn4] Page 206
JUSTICE WHITE 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 219-220, n. 6. We have never
addressed privacy-based sex discrimination, and shall not do so here,
because the sex-based 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).
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. Ã‚Â§ 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.
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. 177
(1991); Board of Ed. of Westside Community Schools v. Mergens,
496 U.S. 226, 227 (1990). 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. Ã‚Â§ 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
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 Ã‚Â§ 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 Ã‚Â§ 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 208. Such speculation will be
small comfort to employers. First, it is far from clear that compliance
with Title VII will preempt state tort liability, and the Court offers no
support for that proposition.[fn2] 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.[fn3] 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. Ã‚Â§ 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 Ã‚Â§ 869, comment b (1979).
Relying on Los Angeles Dept. of Water and Power v. Manhart, 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 210. 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. 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. Criwell,
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,[fn4] the inquiry "`adjusts to the
safety factor'" Ã¢â‚¬â€ "`[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 Ã¢â‚¬â€ "[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,
433 U.S., 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 204,
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
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 Dothard, 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 PDA, contrary to the Court's assertion, ante, at 204, 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. Ã‚Â§ 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).[fn6]
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 gender-based
discrimination at all." Id., at 136. The PDA thus "makes clear
that it is discriminatory to treat pregnancy-related 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 doe not change the
application of Title VII to sex discrimination in any other
way." S.Rep. No. 9331, pp. 3 (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. 95-48, p. 4
(1978) (emphasis added).[fn7]
In enacting the BFOQ standard, "Congress did not ignore the public
interest in safety." Criswell, supra, 472 U.S., 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 require it.[fn8]
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.[fn9] 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
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
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.
[fn1] Page 212
The Court's heavy reliance on the word "occupational" in the BFOQ
statute, ante, at 201, 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 nonfertile
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."
[fn2] Page 213
Cf. English v. General Electric Co., 496 U.S. 72 (1990) (state law
action for intentional infliction of emotional distress not preempted
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 preempted 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. Ã‚Â§ 2000e-7.
[fn3] Page 213
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 Ã‚Â§ 488(1) (1965).
[fn4] Page 216
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.
[fn5] Page 217
I do not, as the Court asserts, ante, at 203, reject the "essence of
the business" test. Rather, I merely reaffirm the obvious Ã¢â‚¬â€ 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 236
(CA5 1976). 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.
[fn6] Page 218
Contrary to the Court's assertion, ante, at 204-205, 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.
[fn7] Page 219
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. Ã‚Â§ 2000e(k).
[fn8] Page 219
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 Ã¢â‚¬â€ 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 204.
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 sex-based 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 111. 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).
[fn9] Page 220
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 191; 886 F.2d, at 876-877.
[fn10] Page 221
It is possible, for example, that alternatives to exclusion of
women, such as warnings combined with frequent blood testings, would
sufficiently minimize the risk such that it would be comparable to
other risks tolerated by Johnson Controls.
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 198. 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. Ã‚Â§ 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 207
(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 208-211,
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 Ã¢â‚¬â€ 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 Ã¢â‚¬â€ short of "costs . . . so prohibitive as to
threaten survival of the employer's business," ante, at 210 Ã¢â‚¬â€ cannot
support a BFOQ defense. See ante, at 206. I agree with JUSTICE WHITE's
concurrence, ante, at 214, 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
I concur in the judgment of the Court.