Traynham v. County School Board of Halifax County, Virginia Appendix

    No. 894215

I n  T h e

(tart td tty §iatns
October T e r m , 1989

I n ter n a tio n a l  U n io n , U n it ed  A u tom obile , A erospace 
and  A gricultural I m p l e m e n t  W orkers 

of A m erica , et at.,
Petitioners,v.

J o h n so n  Controls, I n c .,
Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Seventh Circuit

BRIEF AMICI CURIAE OF EQUAL RIGHTS ADVOCATES, 
THE NOW LEGAL DEFENSE AND EDUCATION FUND, 

NATIONAL WOMEN’S LAW CENTER,
AND WOMEN’S LEGAL DEFENSE FUND 

IN SUPPORT OF PETITIONERS

Susan Deller Ross *
Naomi R. Ca h n  
Robin Markush 
Georgetown U niversity Law 

Center  Sex D iscrimination  
Clin ic

600 New Jersey Ave., N.W. 
Washington, D.C. 20001 
(202) 662-9640
* Counsel of Record for 

Amici Curiae

W 1L .S O N  -  E P E S  P R IN T IN G  C O . , IN C . -  7 S 9 - 0 0 9 6  -  W A S H IN G T O N , D . C .  2 0 0 0 1



TABLE OF CONTENTS

INTEREST OF AMICI CURIAE AND PARTY SUP­
PORTED .........................................................................

SUMMARY OF ARGUMENT ....... ........... ....... -...........

ARGUMENT .......... ......... ............................. -...................

I. IN ENACTING THE PREGNANCY DISCRIM­
INATION ACT, CONGRESS INTENDED TO 
MAKE A POLICY OF EXCLUDING ALL FER­
TILE WOMEN FROM EMPLOYMENT BASED 
ON THEIR PREGNANCY OR POTENTIAL 
PREGNANCY A FACIAL VIOLATION OF 
SECTION 703 (a) OF TITLE V II.......................

A. Congress Explicitly Considered the PDA’s
Impact on the Johnson Gontrols-Type Policy, 
Understood That the PD A’s Language Pro­
hibited Such Policies, and Enacted the PDA 
Without Change and With Full Understand­
ing of Its Reach ...... .......................... -............

B. Congress Made Clear That the PDA’s Pro­
hibition on Pregnancy-Based Discrimination 
Had the Broadest Possible Application to All 
Pregnancy-Related Policies, Rendering Them 
Per Se Violations of Section 703(a) of Title 
V I I .......................................................-............

II. BECAUSE THE PDA’S SECOND CLAUSE 
AND ITS LEGISLATIVE HISTORY MADE 
CLEAR THAT THE PREGNANT WOMAN’S 
OWN JOB PERFORMANCE ABILITIES, AND 
NOT FETAL HEALTH CONCERNS, ARE 
THE ONLY RELEVANT CRITERIA FOR 
ESTABLISHING A BFOQ, JOHNSON CON­
TROLS HAS NO BFOQ DEFENSE TO ITS 
FACIAL VIOLATION OF SECTION 703(a)....



11

Page

III. TO PROVIDE FETAL PROTECTION CON­
SISTENT WITH TITLE VII, JOHNSON CON­
TROLS MUST ADOPT A SEX-NEUTRAL 
POLICY THAT APPLIES EQUALLY TO ITS 
MALE AND FEMALE WORKERS; SUCH A 
POLICY WILL ALLOW THE EMPLOYER 
BOTH TO COMPLY WITH TITLE VII AND TO 
MAKE THE WORKPLACE SAFE FOR THE 
CHILDREN OF BOTH MALE AND FEMALE

TABLE OF CONTENTS—Continued

EMPLOYEES ___ ___ ____ ____ _______ ____  25

CONCLUSION  ...............................................................  30



I ll

TABLE OF AUTHORITIES
Cases: Page

Arizona Governing Committee v. Norris, 463 U.S.
1073 (1983) __________ • ...... -..... - ...... -----..... 28

General Electric Co. v. Gilbert, 429 U.S. 125
(1976)...... ..................... ............. - .......- - .......- 17

International Union, UAW v. Johnson Controls,
886 F.2d 871 (7th Cir. 1989), cert, granted, 110 
S.Ct. 1522 (1990) (No. 89-1215) ......... ..-13, 20, 28, 29

Johnson Controls, Inc. v. California Fair Empl. 
and Housing Committee, 218 Cal. App. 3d 517,
267 Cal. Rptr. 158 (1990), petition for rev. de­
nied, No. S014910 (Cal. May 17, 1990) (LEXIS,
States library, Cal. file)------- ------- ---------- -----  7, 27

Los Angeles Department of Water & Power v. Man-
hart, 435 U.S. 702 (1978)...................-......... ----- 28

Muller v. Oregon, 208 U.S. 412 (1908) ...................  14

Statutes:
Pregnancy Discrimination Act of 1978, Pub. L. No.

95-555, 92 Stat. 2076 (1978) (codified in part
at 42 U.S.CL § 2000e(k) (1982)) ________ -..... passim

Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. (1982) ........... .............. - - .......-passim

Toxic Substances Control Act, 15 U.S.C. §§ 2601,
2603 (1988) .................... -.......................................  11

Legislative History:
Discrimination on the Basis of Pregnancy, 1977: 

Hearings on S. 995 Before the Subcomm. on 
Labor of the Senate Comm, on Human Resources,
95th C'ong., 1st Sess. (1977) ....---------- -----------passim

Legislation to Prohibit Sex Discrimination on the 
Basis of Pregnancy: Hearings on H.R. 5055 and 
H.R. 6075 Before the Subcomm. on Emploijment 
Opportunities of the House Comm, on Education 
and Labor, Part 1, 95th Cong., 1st Sess. (1^11) ..passim 

Legislative History of the Pregnancy Discrimina­
tion Act of 1978, 96th Cong., 2d Sess. (Comm.
Print 1979) ........... -........ - .... -......... - ................. passim



XV

TABLE OF AUTHORITIES—Continued

Regulations: Page
OSHA, Final Standard for Occupational Exposure 

to Lead, 43 Fed. Reg. 52,951 (1978) __ ___ __  26

Miscellaneous:
Ashford, New Scientific Evidence and Public 

Health Imperatives, 316 N. Engl. J. Med. 1084 ... 26
Becker, From Muller v. Oregon to Fetal Vulner­

ability Policies, 53 U. Chi. L. Rev. 1219 (1986).. 27
Williams, Firing the Woman to Protect the Fetus: 

Reconciliation of Fetal Protection with Employ­
ment Opportunity Goals under Title VII, 69 
Geo. L.J. 641 (1981) ...... ........ ................ ........ . 27



BRIEF FOR EQUAL RIGHTS ADVOCATES, 
ET AL., AS AMICI CURIAE

This brief amici curiae is filed with the consent of the 
parties as provided for in this Court’s Rules,

INTEREST OF AMICI CURIAE AND 
PARTY SUPPORTED

The statement of the Interest of Amici is included in 
the Appendix. This brief supports the UAW, et al., 
Petitioners.

SUMMARY OF ARGUMENT
The Seventh Circuit erred in omitting any discussion 

of the legislative history of the Pregnancy Discrimination 
Act (PDA), which makes clear that the PDA was in­
tended to prohibit the Johnson Controls’ policy of exclud­
ing all fertile women from employment based on their 
pregnancy or potential pregnancy.

In enacting the PDA, Congress was fully informed 
that its language would prohibit a policy of “refusing 
certain work to a pregnant employee where such work 
posed a threat to the health of either the mother-to-be 
or her unborn child,” and enacted the PDA without 
change and with full understanding of its reach. The 
Chamber of Commerce informed both the House and 
Senate that the second clause of the PDA, requiring 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,” would prohibit such policies. Senator Hatch 
explored the topic with Dr. Andre Hellegers, who 
urged that “if we are talking about untoward effects of 
industrial processes on human procreation, we have to 
look at the effects on testicles, the effects on ovaries and 
the effects on fetuses, all three” in order to protect the 
children of both male and female workers. Dr. Hellegers 
also discussed the harm that could flow from denying



2

income to pregnant workers; he documented an increase 
in premature births, with accompanying risks of mental 
retardation and learning disabilities, that was associated 
with a decrease in the pregnant worker’s income. Dr. 
Hellegers’ views prevailed, for while Senator Hatch was 
the leading proponent of narrowing amendments to the 
PDA, he did not attempt to accommodate the Chamber 
of Commerce’s “fetal protection” concerns.

In defining the term “sex” as it appears in Title VII 
to include “pregnancy, childbirth, or related medical con­
ditions,” Congress chose the broadest possible definition 
of pregnancy-related discrimination. Since the ability to 
become pregnant and bear children is a “medical condi­
tion” which is “related” to pregnancy and childbirth, the 
PDA explicitly prohibits the Johnson Controls’ ban on all 
women who are either pregnant or who might become 
pregnant. The legislative history of the PDA, including 
the witnesses who testified, the Committee Reports, and 
the floor debate, overwhelmingly confirm that view. They 
all documented the source of pregnancy discrimination as 
including employers’ attitudes about women’s capacity for 
childbearing and their potential pregnancies, which led 
to discrimination against both pregnant women and 
women who might become pregnant. They made clear 
that refusing to hire women for such reasons would be 
illegal. Thus, in refusing to employ any woman who is 
pregnant or who might become pregnant, Johnson Con­
trols engaged in a per se violation of Section 703(a) of 
Title VII, as amended by the PDA definition, which the 
Seventh Circuit erred in refusing even to discuss or 
acknowledge.

The Seventh Circuit also erred in ruling that fetal 
health concerns can be taken into account in deciding 
whether Johnson Controls established a Section 703(e) 
bona fide occupational qualification (BFOQ) defense to 
its facial violation of Title VII. The second clause of the 
PDA applies equally to the Section 703(e) defense, and 
requires that the BFOQ decision be grounded solely in 
the job performance criterion of an employee’s “ability



3

or inability to work,” as the Chamber of Commerce un­
derstood. The testimony, Committee Reports, and floor 
debate all make clear that Congress intended that under 
the PDA, in Representative Hawkins’ words, “if an em­
ployer permits other employees to continue working un­
less their doctors regard them as physically unable to 
work, it may not force pregnant women off the job, as 
many employers have done in the past, while they are 
perfectly able to perform their jobs.” As a matter of 
law, therefore, under the PDA there can be no BFOQ 
defense based on fetal heath concerns. Instead, the sole 
criterion for establishing a BFOQ is the employee’s job 
performance abilities.

Title VII, as amended by the PDA, requires that em­
ployers adopt sex-neutral policies applying equally to 
both male and female workers; such policies will enable 
the employer genuinely concerned with fetal health to 
make the workplace safe for the children of both male 
and female employees. Such policies will also avoid the 
scientific irrationality of ignoring the effects of male 
workers’ exposure to lead. The Occupational Safety and 
Health Administration has found “conclusive evidence of 
miscarriage and stillbirth in women . . . whose husbands 
were exposed” to lead. These problems can arise through 
the effect of lead on sperm and through male workers 
failing to exercise proper hygiene, thus carrying home 
lead on their bodies and clothes and affecting the fetus 
of their wives through intimate contact. Stereotypes make 
it easy for employers to ignore the role of men in the 
area of fetal health and to ignore the role of women in 
assuring adequate family income. These were precisely 
the kinds of stereotypes that the Pregnancy Discrimi­
nation Act was designed to eradicate from the workplace.



4

ARGUMENT
I. IN ENACTING THE PREGNANCY DISCRIMINA­

TION ACT, CONGRESS INTENDED TO MAKE A 
POLICY OE EXCLUDING ALL FERTILE WOMEN 
FROM EMPLOYMENT BASED ON THEIR PREG­
NANCY OR POTENTIAL PREGNANCY A FACIAL 
VIOLATION OF SECTION 703(a) OF TITLE VII.

The Seventh Circuit’s decision upholding the Johnson 
Controls’ policy of refusing employment to all pregnant 
women and all women capable of becoming pregnant 
scarcely mentioned the Pregnancy Discrimination Act of 
1978.1 Even more conspicuously absent from the Seventh 
Circuit’s decision is any analysis of the legislative history 
of the PDA. That legislative history reveals, however, 
as we show below, that Congress intended to prohibit 
precisely the employer ban on fertile women workers that 
the lower court upheld.

A. Congress Explicitly Considered the PDA’s Impact 
on the Johnson Controls-Type Policy, Understood 
That the PDA’s Language Prohibited Such Policies, 
and Enacted the PDA Without Change and With 
Full Understanding of Its Reach.

On the very first day of testimony (April 6, 1977) on 
the proposed PDA, the first opponent of the legislation 
to speak highlighted as his first reason for opposing the 
bill its effect on “Occupational Health.” In both his oral 
and written statements, the Chamber of Commerce rep­
resentative explained to Chairman Hawkins and the other 
Members of the House Subcommittee on Employment 
Opportunities:

[The bill] requires that “women affected by preg­
nancy, childbirth or related medical conditions shall 
be treated the same for all employment related pur­
poses.” This would prevent an employer from refus­
ing certain work to a pregnant employee where such

1 Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified in part at 
42 U.S.C. § 2000e(k) (1982)) [hereinafter cited as the PDA].



5
work posed, a threat to the health of either the mother- 
to-be or her unborn child.

Even though the prospective mother might argua­
bly be considered to have assumed the risk by asking 
to work in such circumstances, injury to the fetus 
might give the child a cause of action against the 
employer who, under the bill, would be powerless to 
deny the work to the child’s mother during the preg­
nancy.

Legislation to Prohibit Sex Discrimination on the Basis 
of Pregnancy: Hearings on H.R. 5055 and H.R. 6075 
Before the Subcomm. on Employment Opportunities of 
the House Comm, on Education and Labor, Part 1, 95th 
Cong., 1st Sess. 84, 88 (1977) [hereinafter cited as 
House Hearings] (statement and testimony of C. Brock- 
well Heylin, labor relations attorney, Chamber of Com­
merce of the U.S.). The Chamber submitted a virtually 
identical statement to the Senate Subcommittee on Labor 
the next month. Discrimination on the Basis of Preg­
nancy, 1977: Hearings on S. 995 Before the Subcomm. 
on Labor of the Senate Comm, on, Human Resources, 95th 
Cong., 1st Sess. 482 (1977) [hereinafter cited as Senate 
Hearings] (statement of C. Brockwell Heylin). Thus, 
from the opening days of the Congressional hearings, 
Congress was on notice that the largest U.S. association 
of business and professional organizations, id., believed 
that the second clause of the PDA 2 prohibited a policy 
virtually identical to the Johnson Controls’ policy, and 
that the Chamber opposed the bill for that reason.

Senator Hatch, who later became the leading (though 
unsuccessful) proponent of amendments to narrow the 
scope and coverage of the PDA, quickly pursued the 
Chamber’s points. On the very first day of the Senate 
hearings (April 26, 1977), Senator Hatch explored them

2 The second clause provides that “women affected by pregnancy, 
childbirth, or related medical conditions shall be treated the same 
for all employment-related purposes, including receipt of benefits 
under fringe benefit programs, as other persons not so affected but 
similar in their ability or inability to work. . . .” 42 U.S.C. § 2000e 
(k) (1982).



6

with Dr. Andre Hellegers, a Professor of Obstetrics and 
Gynecology and Director of the Joseph and Rose Ken­
nedy Institute for the Study of Human Reproduction and 
Bioethics at Georgetown University. Senator Hatch’s 
questions were based on the Chamber’s, points about the 
PDA’s second clause and occupational health:

Senator Hatch: What problems, i f  any, do you fore­
see in treating pregnant women the same as other 
employees who have disabilities that continue to work?
Dr. Hellegers: I can see none. I don’t see any. I
think it is just a question of having a physical exam.
Senator Hatch: Do you think there would arise a
whole slew of OSHA problems, occupational safety 
and health problems as a result of pregnant women?
Dr. Hellegers: Let me put it this way: I have long
been an advocate for a massive increase in research 
to deal with the effects of poisons, chemicals, physical 
or other agents on pregnant working women. How­
ever, two other things: Those agents are just as likely 
to affect the ovaries of nonpregnant women and there 
are in fact today companies that will not hire women 
on that specific basis.

But you never dream of thinking that the same 
agents may also affect the testicles of men. So if  we 
are talking about untoward effects of industrial proc­
esses on human procreation, we have to look at the 
effects on testicles, the effects on ovaries and the 
effects on fetuses, all three, and we aren’t doing much 
of that.

Senate Hearings at 67 (emphasis added).
With this vivid and cogent remark, Dr. Hellegers 

struck at the heart of the stereotype underlying the John­
son Controls-type policy: that male participation in the 
reproductive cycle is irrelevant to fetal harm and may 
therefore be disregarded:3 What Dr. Hellegers recom­

3 See Section III infra for a discussion of the scientific data 
showing that the sperm of male workers can be affected by their 
exposure to lead, thus leading- to fetal harm, and for a discussion 
of how male workers who fail to take the appropriate hygiene rneas-



7
mended instead was to examine fetal harm caused by both 
male and female worker exposure to chemicals and other 
agents, so that the children of both men and women 
employees could be protected.

Shortly before this exchange, Dr. Hellegers’ testimony 
dealt with another stereotype underlying the Johnson 
Controls-type policy: that the denial of jobs to preg­
nant women will not harm developing fetuses. The 
mother’s income is important to fetal well-being, he ex­
plained :

I am secondly in favor of this bill on the grounds 
of social good, and I have attached to my testimony a 
table on a study that we did in the Kennedy Institute 
which relates income to infant outcome. It is ex­
tremely clear that as income increases prematurity 
decreases, in some instances by almost 50 percent.

What this means, in other words, is that the 
penalty of this kind of policy [loss of income during 
pregnancy] is paid not just by the woman, it is paid 
by the unborn child. One lawyer, incidentally, in one

ures after exposure to lead on the job can bring home lead on theii 
bodies and clothes and affect the developing fetus of their wives 
through intimate contact. The Johnson Controls-type' steieotype 
undoubtedly arises because of the centrality and strength of the 
mother-infant relationship in our culture, leading employers simply 
to forget about fathers. This is especially so during pregnancy, 
-when the fetus is enclosed in the woman’s body, and the father’s 
connection to the fetus has no such visible and obvious manifesta­
tion.

The tendency to ignore the father’s role in causing fetal harm 
was noted by the California Court of Appeal in discussing one of 
Johnson Controls’ expert witnesses: “Dr. Noren cavalierly char­
acterized the situation this way: ‘If you don’t  look for a problem, 
you don’t find it.’ ” Johnson Controls, Inc. v. California Fair Empl.
and Hous. Comm., 218 Cal. App. 3d 517, ----- ; 267 Cal. Rptr.
158, 168 (1990), petition for rev. denied, No. S014910 (Cal. May 17, 
1990) (LEXIS, States library, Cal. file). Dr. Noren took this posi­
tion to explain his belief that there w7as a lack of recent studies on 
the “effect of lead in male workers’ reproduction systems,” despite 
his recognition that “old studies did link lead exposure in male 
lead workers with a high death rate among offspring in the first 
years of life.” Id. (emphasis added).



8

ease afterwards said the women can always get 
aborted. I happen to be opposed to abortion. All I 
can say is that this is a policy which harms not only 
women but harms the unborn, either whether you 
abort or you do not abort, and markedly increases 
the incidence of prematurity.

That goes to the issue of cost because what it 
really comes down to is that you pay a penalty either 
before birth by keeping income up at that time, or 
you pay a penalty after birth in terms of facilities 
*for the mentally retarded, learning disabilities on 
which millions and millions are spent in this country.

Senate Hearings at 64. His written statement amplified 
on these concerns:

The National Institute for Child Health and Human 
Development has estimated that prematurity costs 
the nation $1 billion per year. A task force report 
to Secretary of H.E.W. Califano puts a price tag of 
$130 million on each percentage point of prematurity 
in the nation. Those costs refer to the cost of care 
in hospital nurseries only. They do not reflect the 
well known relationship between premature births 
and subsequent central nervous system disabilities, 
such as mental retardation and learning defects. Its 
cost is immense. . . .

. . .  On a national scale one does well to remember
that today 40% of all pregnant ivomen work and 
large numbers of them are heads of households or 
have unemployed husbands so their loss of income 
affects their own health and their unborn children's, 
at great cost to the nation. . . .

Senate Hearings at 75-76 (emphasis added). Dr. Helle- 
gers made the identical point in the hearings before the 
House Employment Opportunities Subcommittee. House 
Hearings at 54, 58-59.4

4 The American Nurses’ Association also documented the con­
nection between loss of income and fetal health, and expanded on 
the fetal and neo-natal harms caused by premature birth. “Low 
birth weight [due to premature birth] is associated with almost 
half of all infant deaths and substantially increases the likelihood 
of birth defects,” the Association informed the Senate. Senate



9
On the same day that Senator Hatch explored the 

OSHA problems with Dr. Hellegers, he explored several 
of the concerns that led him later to offer his narrowing 
amendments. For example, he asked a panel of govern­
ment witnesses (from the EEOC, the Justice Depart­
ment’s Civil Rights Division, and the Labor Department) 
a series of questions about whether the bill should con­
tain limitations on the “length of time” during which 
pregnant workers could receive disability insurance cov­
erage—e.g., of “3 weeks for pregnancy disability.” Sen­
ate Hearings at 39-45.

Later that day, the Senator returned to his concerns 
about limiting the “length of time” for receipt of dis­
ability insurance benefits and about possible OSHA prob­
lems in a discussion with Clarence Mitchell, the Chair­
man of the Leadership Conference on Civil Rights. He 
explained to Mr. Mitchell that

maybe there should be some limitations so people 
know where they stand and that does literally bother 
me. There are many problems that arise in this. It 
is a complicated area.

If we grant this particular bill we may have OSHA 
problems that we hadn’t thought of, and maybe we 
should. These are questions I legitimately have and 
want to have answers. But since the vast majority of 
insurers in America put a set time because of the 
overwhelming mass of statistical evidence showing 
that pregnancy is not really a disability but a natural 
occurrence in the overwhelming majority of cases 
that perhaps there might need to be a limitation 
rather than an unlimited generalized bill.

Senate Hearings at 109-10.
Significantly, during the floor debate, Senator Hatch 

did indeed offer an amendment to cap disability benefits 
at 6 weeks, and thereby attempted to limit the “length

Hearings at 466, 470. Some of the defects listed were “mental 
retardation, cerebral palsy, and other neurological disorders.” Id. 
at 471. Others included “IQ deficiency and antisocial behavior.” Id.



10

of time” for which women workers who had had babies 
could receive disability benefits. He also proposed other 
amendments to cover other concerns he had raised from 
the first day of the Senate hearings.5 Senator Hatch 
did not, however, propose an amendment to allow em­
ployers with occupational health concerns to treat fertile 
women differently than fertile men, by excluding the 
women from employment. He was apparently persuaded 
by Dr. Helleger’s point that it is important to examine 
the effects of toxic agents on men as well as women, in 
order to protect male workers’ children and not just 
those of female workers. He may also have been per­
suaded by Dr. Hellegers’ eloquent statement about low 
income among pregnant women workers causing pre­
mature birth, with its attendant risks of learning dis­
abilities and mental retardation. Whatever his motiva­
tion, however, the significant fact remains that he was 
clearly informed about the occupational health issue the 
Chamber of Commerce so prominently raised, and knew 
which clause of the PDA the Chamber was concerned 
about. Yet he chose not even to suggest amending the 
PDA to accommodate the Chamber’s concern, despite his 
role as the leading proponent of narrowing amendments 
to the PDA.

In sum, despite the Chamber of Commerce’s clear warn­
ing that the second clause of the PDA “would prevent

5 His proposed amendments included: 1) the six-week limitation 
on pregnancy disability benefits discussed swpra- (Amendment No. 
830) (rejected), Senate Comm, on Labor and Human Resources, 
Legislative History of the Pregnancy Discrimination Act of 1978, 
96th Cong., 2d Sess. 56, 96-111, 122-24 (Comm. Print 1979) [here­
inafter cited as Leg. H ist.]; 2) an amendment to clarify that a 
requirement of covering pregnancy in insurance plans did not apply 
to pre-existing conditions (Amendment No. 831) (withdrawn), id. 
at 57, 82-84; and 3) an extension of the date of compliance (Amend­
ment No. 832) (adpoted), id. at 58, 84-86. Senator Hatch also dis­
cussed the enactment of a special pregnancy bill instead of an 
amendment to the Civil Rights Act, although this suggestion never 
materialized into a proposed amendment. See Senate Hearings at 
44.



11
an employer from refusing certain work to a pregnant
employee where such work posed a threat to the health of 
either the mother-to-be or her unborn child,” and despite 
the fact that a highly visible Senator who offered other 
narrowing amendments publicly examined the Chamber’s 
concerns, Congress left intact its requirement that 
“women affected by pregnancy, childbirth, or related medi­
cal conditions shall be treated the same for all employ­
ment-related purposes . . .  as other persons not so affected 
but similar in their ability or inability to work.” And in 
the entire legislative history of the PDA, no person or 
organization ever suggested to Congress that a different 
interpretation of this statutory language than the one 
offered by the Chamber applied to the occupational health 
problem. Nor did a single Member of Congress or a single 
Committee Report indicate any disagreement with the 
Chamber’s interpretation.

Moreover, two important Senators were clearly in­
fluenced by Dr. Hellegers’ approach of being concerned 
about the health of all children.6 Senator Williams, the 
Chairman of the Senate Committee on Human Resources, 
had been present during Dr. Hellegers’ Committee testi­
mony and during Senator Hatch’s questioning of Dr. 
Hellegers, When the Senator presented the bill to the 
full Senate in his role as floor manager, he pointedly 
focused on and used Dr. Hellegers’ testimony at the very 
beginning of the PDA floor debate:

Finally, Mr. President, I want to emphasize testi­
mony received by the Committee from the American

6 Indeed, fetal health had been the subject of concern in the 
Congressional session immediately preceding the one in which the 
PDA was introduced. The Toxic Substances Control Act, 15 U.S.C. 
§§2601, 2603 11988), enacted on October 11, 1976. specifically ad­
dressed concerns for fetal safety by imposing strict reporting and 
testing requirements on industry in the production and use of tera­
togens and other toxins which present health and environmental 
hazards. Clearly such concerns were still fresh in the minds of 
the Members of Congress who* began consideration of the PDA less 
than six months later.



12

Nurses’ Association,7 and from an eminent obste­
trician, Dr. Andre Hellegers, which documented the 
concrete connection betiveen loss of income during 
the disability phase of pregnancy and a. deterioration 
of the health of the pregnant woman and of her child 
which results from impaired access to a healthful life 
situation.

In addition, there is a relationship between infant 
prematurity and income. It is estimated that pre­
maturity costs the Nation $1 billion per year for 
care and hospital nursing alone, not to mention the 
cost of certain lasting effects which can result from 
prematurity.

These problems can affect an enormous number of 
our Nation’s children. Approximately W percent of 
all pregnant wom,en work and, as we know, a large 
number of them are heads of households, or have 
unemployed or low-income husbands. . . .

. . . We must also consider the cost which is im­
posed on society when working women and their 
families are denied adequate income for a decent 
standard of living. This cost is felt in terms of 
medical complications for both the women and their 
children. . . .

Leg. Hist, at 65, 66 (emphasis added). Senator Williams’ 
remarks were soon followed by those of another influential 
member of the Committee reporting out the bill, Senator 
Kennedy. Senator Kennedy told the Senate:

Since ivomen work to support their families, de­
priving them of such coverage at a time they and 
their families are very much in need of it discrimi­
nates not only against these women but against their 
families as well. This discrimination handicaps chil­
dren who are born into families where a paycheck— 
possibly the only paycheck—has arbitrarily vanished. 

Senate Floor Debate, Leg. Hist, at 70 (emphasis added). 
Surely these remarks reflect the Senators’ agreement with 
Dr. Hellegers’ position that anyone with true concern for 
fetal harm would not bar pregnant women from working 
and would be sure to look at the impact of toxic chemicals

7 See n.4, supra.



13

on the male reproductive system. Instead, such persons 
would make sure that employment environments would be 
safe for the children of both the male and female workers 
who might be exposed to toxic substances, by reducing the 
toxic substances to safe levels or taking other appropriate 
measures.

B. Congress Made Clear That the PDA’s Prohibition on 
Pregnancy-Based Discrimination Had the Broadest 
Possible Application to All Pregnancy-Related Poli­
cies, Rendering Them Per Se Violations of Section 
703(a) of Title VII.

The Johnson Controls’ fetal protection policy, adopted 
in 1982, prevents all women who are “capable of bearing 
children” from working in “jobs involving lead exposure 
or which could expose them to lead through the exercise 
of job bidding, bumping, transfer or promotion rights.” 
International Union, UA W v. Johnson Controls, 886 F.2d 
871, 877 (7th Cir. 1989). The only women who are 
exempted are those who can prove, with medical docu­
mentation, that they are infertile. Id. at 876 n.8. Thus, 
all pregnant women and all women who might ever become 
pregnant are excluded from work in this group of jobs. 
Conversely, no men are excluded from these jobs. Even 
fertile men are permitted to work in a job in which they 
might be exposed to lead.

In defining the term “sex” as it appears in Title VII 
to include “pregnancy, childbirth, or related medical con­
ditions,” 42 U.S.C. § 2000e(k) (1982), Congress chose 
the broadest possible definition of pregnancy-related dis­
crimination. The definition does not stop with pregnancy 
and childbirth, but is expanded to include any “related 
medical conditions.” Since the ability to become pregnant 
and bear children is surely a “medical condition” which 
is “related” to pregnancy and childbirth, the PDA ex­
plicitly prohibits the Johnson Controls’ ban on all women 
who are either pregnant or who might become pregnant.8

8 The expansiveness of the definition is further demonstrated 
by the second clause, which extends its reach to all “women affected



14

The legislative history of the PDA overwhelmingly con­
firms that view. The witnesses who testified before the 
relevant Committees, the Committee Reports, and the 
floor debate all reflected a single, unanimous, perspective. 
First, the source of pregnancy discrimination was em­
ployers’ attitudes about women’s capacity for childbear­
ing and their potential pregnancies, and these attitudes 
led to discrimination against both pregnant women and 
women who might become pregnant. Second, the PDA 
should ban all such discrimination.

This perspective was developed from the very first day 
of hearings and the opening panel of witnesses. The lead 
panel included the Co-Chair of the Campaign to End Dis­
crimination Against Pregnant Workers (a broad-based 
coalition of women’s rights organizations, civil rights 
groups, labor unions, and other public interest groups 
working to enact the PDA) and a law professor who 
worked closely with the Campaign. Professor Wendy W. 
Williams’ statement started by describing the history of 
protective labor laws and their relationship to attitudes 
about pregnancy. As the prime example, she quoted from 
this Court’s holding in Muller v. Oregon, 208 U.S. 412, 
421 (1908), justifying restrictive labor laws for women 
only on the early “fetal-protection” theory that since 
“healthy mothers are essential to vigorous offspring, the 
physical well-being of woman becomes an object of public 
interest and care in order to preserve the strength and 
vigor of the race.” 9 She then recounted the history of em­
ployers’ policies towards pregnancy and summarized that 
history in the following terms:

by . .  . related medical conditions,” 42 U.S.C. § 200Qe(k) (1982) 
(emphasis added), as the House Report agreed. See text at n.10, 
infra,.

9 House Hearings at 6 (statement of Wendy Williams) ; Senate 
Hearings at 124 (same). This quote should be read in light of the 
Court’s position that women were properly placed in a class by 
themselves because of their “physical structure” and “performance 
of maternal functions.” Muller v. Oregon, 208 U.S. at 420.



15
[T] he common thread of justification running 
through most policies and practices that have dis­
criminated against all women in the labor force 
rested ultimately on the capacity of women to become 
pregnant and the roles and behavior patterns of 
women that were assumed to surround that fact of 
pregnancy.

. . . Moreover, even women who don’t actually 
become pregnant are, until they pass childbearing 
age, viewed by employers as potentially pregnant 
and all women are subject to the effects of the stereo­
types that women are marginal workers with all the 
multifaceted consequences this has for hiring, job 
assignment, promotion, pay, and fringe benefits.

House Hearings at 11-13, 43 (statement and testimony 
of Wendy Williams) (emphasis added). The Campaign’s 
Co-Chair made a similar point:

The Campaign supports H.R. 5055 because it will 
restore Title VII as an effective tool in eradicating 
sex discrimination in employment. It will reinstate 
what we believe Congress always intended—that all 
sex discrimination be eliminated, root and branch, 
from the market place, especially including discrimi­
nation focussed on that one condition which makes 
women different from men—their childbearing ca­
pacity.

Home Hearings at 82, 47 (statement and testimony of 
Susan Deller Ross) (emphasis added). Both women made 
the same points before the Senate. Senate Hearings at 
113, 118, 129-31, 151.

Other witnesses repeated this theme. The Vice-Chair 
and Acting Chair of the EEOC explained:

There can be no question that the wide range of 
employment policies directed at pregnant women— 
or at all women because they might become pregnant 
—constitutes one of the most significant hindrances 
to women’s equal participation in the labor market.



16

Policies which disadvantage women when they 
become pregnant— or even because they might become 
pregnant—endanger the limited financial security 
they now have.

House Hearings at 122-23 (testimony of Ethel Bent 
Welsh) (emphasis added) ; Senate Hearings at 32.

Drew Days, the Assistant Attorney General in charge 
of the Justice Department’s Civil Rights Division, testi­
fied that “loss of income and employment opportunities, 
and limitations on reinstatement rights all operate to 
make women, whether pregnant, potentially pregnant, or 
formerly pregnant, second-class citizens in the employ­
ment sphere.” Senate Hearings at 56 (statement) (em­
phasis added) ; House Hearings at 135. Laurence Gold, 
Special Counsel for the AFL-CIO, noted that “the overall 
affect [sic] of the special disadvantages imposed on preg­
nant women, and women workers because they might 
become pregnant, is to relegate women in general, and 
pregnant women particularly, to a second-class status 
with regard to career advancement and continuity of em­
ployment and wages.” Senate Hearings at 209 (state­
ment) (emphasis added) ; House Hearings at 65. Ms. 
Ruth Weyand, also a Co-Chair of the Campaign, explained 
that “employers rely on pregnancy to justify all forms 
of discrimination against women . . . Unfair treatment 
because of potential pregnancy, actual pregnancy, or 
recent pregnancy touches [women workers] at every 
point, and they feel very, very deeply the need to say that 
discrimination because of pregnancy is discrimination be­
cause of sex. Senate Hearings at 300-01 (testimony) 
(emphasis added). Senator Clark stated that he was 
cosponsoring S. 995

because it is clear to me that discriminating against 
working women on the narrow basis of their capacity 
to become pregnant is not consistent with the goals 
set forth in the Civil Rights Act. . . . The significance 
of this legislation is that it deals with one of the 
most important causes of employment discrimination 
against women; namely, the age-old belief that a



17

woman’s primary role is to give birth and to care 
for the children.

Senate Hearings at 393-95 (testimony) (emphasis added).
Faced with this overwhelming consensus that the Act 

must eradicate practices based on women workers’ ca­
pacity to become pregnant, both the Senate and House 
Committee Reports made absolutely clear that the Act 
would have this effect. The Senate Report first described 
this Court’s decision in General Electric Co. v. Gilbert, 
429 U.S. 125 (1976), and then stated:

In the committee’s view, the following passages 
from the two dissenting opinions in the case cor­
rectly express both the principle and the meaning of 
title VII. As Mr. Justice Brennan stated: “Surely 
it offends commonsense to suggest . . . that a classifi­
cation revolving around 'pregnancy is not, at the mini­
mum, strongly ‘sex related’.” Likewise, Mr. Justice 
Stevens stated that, “ (b)y definition, such a rule 
discriminates on account of sex; for it is the capacity 
to become pregnant which primarily differentiates the 
female from the male.”

Thus, S. 995 was introduced to change the defini­
tion of sex discrimination in title VII to reflect the 
“commonsense” view and to insure that working 
women are protected against all forms of employ­
ment discrimination based on sex.

S. Rep. No. 95-331, 95th Cong., 1st Sess. 2-3 (1978) 
[hereinafter cited as S. Rep.], Leg. Hist, at 39-40 (em­
phasis added). The House Report agreed that “the dis­
senting Justices correctly interpreted the Act,” and ex­
pressly quoted Justice Stevens’ point about the “capacity 
to become pregnant.” H.R. Rep. No. 95-948, 95th Cong., 
2nd Sess. 2 (1978) [hereinafter cited as H.R. Rep.], Leg. 
Hist, at 148. It went on to specify that “in using the 
broad phrase ‘women affected by pregnancy, childbirth, 
and related medical conditions,’ the bill makes clear that 
its protection extends to the whole range of matters 
concerning the childbearing process.” 10 Id. at 151. And it 
expressly referred to the historical patterns:

10 See n.8, supra.



18

[T]he consequences of other discriminatory employ­
ment policies on pregnant women and women in gen­
eral has historically had a persistent and harmful 
effect upon their careers. Women are still subject to 
the stereotype that all women are marginal workers. 
Until a woman passes the child-bearing age, she is, 
viewed by employers as potentially pregnant. There­
fore, the elimination of discrimination based on preg­
nancy in these employment practices in addition to 
disability and medical benefits will go a long way 
toward providing equal employment opportunities for 
women. . . .

H.R. Rep. at 6-7, Leg. Hist, at 152-53 (emphasis added).
Both Senator Williams and Representative Hawkins, 

the chairmen respectively of the Senate Committee on 
Human Resources and the House Subcommittee on Em­
ployment Opportunities, repeated these points in their 
presentations to the full Congress. Senator Williams 
pointed out tha t:

Because of their capacity to become pregnant, 
women have been viewed as marginal workers. . . .

The reported title VII cases reveal a broad array 
of discriminatory practices based upon erroneous as­
sumptions about pregnancy and the effect it has on 
the capacity of women to work.

In some of these cases, the employer refused to 
consider ivomen for particular types of jobs on the 
grounds that they might become pregnant, even 
though the evidence revealed that pregnant women 
are perfectly capable of performing the work in 
question.

[T]he overall effect of discrimination against 
women because they might become pregnant, or do 
become pregnant, is to relegate women in general, 
and pregnant women in particular, to a second-class 
status with regard to career advancement and con­
tinuity of employment and wages.

These practices reach all working women of child­
bearing age.



19
Senate Floor Debate, Leg. Hist, at 61-62 (emphasis 
added). Representative Hawkins spoke in a similar vein 
in presenting the bill to the House of Representatives: 
“many of the disadvantages imposed on women are predi­
cated upon their capacity to become pregnant.” House 
Floor Debate, Leg. Hist, at 168 (emphasis added). And 
in the moments before final passage of the legislation, 
when a compromise had been reached on the abortion 
issue,11 even the concluding speaker addressed these same 
concerns, in words that speak directly to the Johnson 
Controls’ policy:

The legal status of the past often forced women to 
choose between having children and working. For 
many, wanting children could not outweigh the eco­
nomic realities that her income was essential. This 
legislation gives her the right to choose both, to be 
financially and legally protected before, during, and 
after her pregnancy.

Leg. Hist, at 208 (comments of Rep. Sarasin) (emphasis 
added).

In the face of this, overwhelmingly consistent legisla­
tive history, there simply can be no doubt that Congress 
intended to proscribe broadly-defined employer policies 
such as that used by Johnson Controls. In refusing to 
employ any woman who is pregnant or who might be­
come pregnant, the company has engaged in a per se 
violation of Section 703(a) of Title VII, 42 U.S.C. 
§20Q0e-2(a) (1982), as amended by the PDA’s defini­
tion that se-x includes “pregnancy, childbirth, or related 
medical conditions.” 42 U.S.C. § 2000e(k) (1982). The 
Seventh Circuit clearly erred in refusing even to dis­
cuss or acknowledge this language and history.

ii See Section III infra for a discussion of the abortion issue.



20

II. BECAUSE THE PDA’S SECOND CLAUSE AND ITS 
LEGISLATIVE HISTORY MADE CLEAR THAT THE 
PREGNANT WOMAN’S OWN JOB PERFORMANCE 
ABILITIES', AND NOT FETAL HEALTH CON­
CERNS, ARE THE ONLY RELEVANT CRITERIA 
FOR ESTABLISHING A BFOQ, JOHNSON CON­
TROLS HAS NO BFOQ DEFENSE TO' ITS FACIAL 
VIOLATION OF SECTION 703(a).

Without discussing any of the relevant statutory lan­
guage or legislative history of the PDA, the Seventh 
Circuit erroneously held that the PDA allowed it to take 
account of fetal risks in determining whether Johnson 
Controls had a Section 703(e) BFOQ defense to its policy 
of banning all fertile women from employment. Its sole 
PDA discussion was as follows:

In the context of the Pregnancy Discrimination 
Act, application of the bona fide occupational qualifi­
cation defense requires a court to consider the special 
concerns which pregnancy poses. A proposed BFOQ 
relating to capacity for pregnancy (or actual preg­
nancy) will exclude fewer employees than a BFOQ 
excluding all women. The court must also consider 
the physical changes caused by pregnancy, i.e., the 
presence of the unborn child, in determining whether 
the employee’s continuance in a particular employ­
ment assignment will endanger the health of her 
unborn child.

Johnson Controls, 886 F.2d at 893-94 (footnote omitted) 
(emphasis added). This conclusion is flatly contradicted 
by the PDA and its legislative history.

The BFOQ exception of Section 703(e) of Title VII, 
42 U.S.C. § 2000e-2(e) (1982), must be read in light 
of the second clause of the PDA. Just as the first clause 
of the PDA (defining “sex” to include “pregnancy, child­
birth, or related medical conditions” ) applies through­
out Title VII wherever the term “sex” is found, so too 
does the second clause. Thus, it applies equally to the 
BFOQ section, and indeed gives content to the applica­
tion of the BFOQ in the pregnancy context.



21

The second clause provides 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. § 2000e(k) 
(1982) (emphasis added). It was precisely this clause 
that the Chamber of Commerce identified as preventing 
“an employer from refusing certain work to a pregnant 
employee where such work posed a threat to the health 
of . . . her unborn child.” House Hearings at 84; Senate 
Hearings a t 482.

The legislative history reveals that the Chamber’s as­
sessment was correct, because of the clear meaning of 
the term “ability or inability to work.” At the beginning 
of both Committee hearings, the Co-Chair of the Cam­
paign to End Discrimination Against Pregnant Workers 
explained this core concept of the legislation:

[The bill] defines the appropriate standard for elimi­
nating . . . discrimination [based on pregnancy, 
childbirth, and related medical conditions], by pro­
viding that pregnant workers who are able to work 
shall be treated the same as other able workers, and 
that pregnant workers who are unable to work shall 
be treated the same as other disabled workers.

The point here is that no conclusions about a 
woman’s medical ability to work can be drawn from 
the fact of pregnancy per se. Most women are able 
to work through most of their pregnancies (although 
less than 5% do suffer some complications that pre­
vent them from working). Those pregnant women 
who are able to work should be allowed to work like 
all other able workers. Conversely, all pregnant 
women have some period of medical disability, be­
ginning in a normal pregnancy with labor itself and 
continuing through the normal recuperation period 
of 3 to 8 weeks after childbirth.

Senate Hearings at 151-52, 153 (statement of Susan 
Deller Ross) (emphasis added) ; House Hearings at 32- 
33, 34. Clearly, the focus of the suggested standard was



22

on the effect of the woman’s pregnancy on her ability 
to perform job duties, and the standard contemplated that 
any woman who was physically able to perform her job 
duties should be allowed to do so. The references to 
“medical ability to work” and the examples of medical 
inability to work—including labor itself, the 3 to 8 weeks 
recuperation period after childbirth, and complicating 
medical conditions of pregnancy affecting less than 5 
percent of all pregnant women—particularly clarify that 
the ability to work concept refers to the woman’s individ­
ual ability to perform her job duties.

Different employer stereotypes could affect employers’ 
decisions to forbid pregnant women to work despite their 
ability to do so. Professor Williams discussed a variety 
of such stereotypes in her testimony, and specifically in­
cluded that of “fetal protection,” in describing a Chil­
dren’s Bureau study from the early 1940’s which ex­
amined “the practice of firing women when they become 
pregnant.” House Hearings at 9; Senate Hearings at 
127. The study noted that “the reason often given for 
the practice was the protection of the mother and fetus,” 
Id.

The theme of equal treatment based on comparable 
ability to work—that is, job performance ability—was 
reiterated in the Committee Reports and the floor de­
bate. Thus, the Senate Report stated:

By defining sex discrimination to include discrimi­
nation against pregnant women, the bill rejects the 
view that employers may treat pregnancy and its 
incidents as sui generis, without regard to its func­
tional comparability to other conditions. Under this 
bill, the treatment of pregnant women in covered em­
ployment 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 condi­
tion as other employees; and when they are not able 
to work for medical reasons, they must be accorded 
the same rights, leave privileges and other benefits, 
as other workers who are disabled from working.



23

S. Rep. at 4, Leg. Hist, at 41 (emphasis added). In 
explaining when disability benefits would have to be 
paid, the Report clarified that they would be paid “only 
on the same terms applicable to other employees-—that is, 
generally, only when the employee is medically unable to 
work.” Id. (emphasis added). Examples of times when 
workers would not have to be paid disability benefits be­
cause they were not medically disabled included a preg­
nant woman who “wishes, for reasons of her own, to stay 
home to prepare for childbirth, or, after the child is born 
to care for the child.” Id. (emphasis added). And while 
disability benefits would normally be paid for “'4-8 weeks” 
after childbirth, since that is “the period of disability 
for a normal pregnancy,” on the other hand, “if there 
are medical complications of pregnancy or childbirth 
which prevent a woman from working for more than the 
normal period, the entire disability period . . . would 
have to be covered.” S. Rep. at 4, Leg. Hist, at 41-42.

Similarly, in discussing employers’ leave policies, the 
Report pointed out, in language that could apply directly 
to the Johnson Controls’ policy, that “employers will no 
longer be permitted to force women who become pregnant 
to stop working regardless of their ability to continue; 
. . . and they will not be able to refuse to hire or promote 
women simply because they are pregnant.” S. Rep. at 6, 
Leg. Hist, at 43 (emphasis added).

The House Report contained virtually identical dis­
cussions. See H.R. Rep. at 4-5, Leg. Hist, at 150-51. 
And like the Senate Report, the House Report specifically 
rejected “mandatory leave for pregnant women arbi­
trarily established at a certain time during their preg­
nancy and not based on their inability to work.” H.R. 
Rep. at 6, Leg. Hist, at 152 (emphasis added).

While the Committee Reports alone would be decisive 
on the point that it is solely the pregnant woman’s job 
performance abilities that count in determining employer 
rights to force her into unemployment, the statements of 
the two floor managers during the floor debates reempha­



size the unified approach of the Reports. Thus, Represen­
tative Hawkins stated:

[EJmployers . . , must treat pregnant women as they 
treat other employees similar in their ability or 
inability to work. This means, for example, that
if  an employer permits other employees to continue 
working unless their doctors regard them as physi­
cally unable to work, it may not force pregnant 
women off the job, as many employers have done in 
the past, while they are perfectly able to perform 
their jobs.

Leg. Hist, at 24-25 (emphasis added). Senator Williams 
explained: “ [t]he central purpose of this bill is to re­
quire that women workers be treated equally with other 
employees on the basis of their ability or inability to 
work.” Senate Floor Debate, Leg. Hist, at 62-63.

These statements make clear that, far from allowing 
courts to consider fetal health concerns which have no im­
pact on the woman’s job performance abilities, Congress 
mandated equal treatment based solely on the pregnant 
employee’s ability to work in comparison to other em­
ployees not so affected but similar in their ability to 
work. In requiring this equality of treatment, Congress 
intended to prohibit employers from considering anything 
other than the employee’s actual ability to perform the 
job—concerns about the health of fetuses or potential 
fetuses are simply not relevant. That was a point that 
the Chamber of Commerce understood on a first reading 
of the second clause of the PDA, but which the Seventh 
Circuit entirely ignored. Accordingly, it erred in ruling 
that Johnson Controls had established a BFOQ based 
solely on fetal health concerns; as a matter of law, these 
concerns cannot justify a BFOQ.

Finally, while Johnson Controls has sought tô  justify 
its policy with scientific data, not even the scientific evi­
dence supports a. fetal protection policy that excludes 
only fertile women. As shown below, the Johnson Con­
trols’ policy is scientifically irrational.

24



25
III. TO PROVIDE FETAL PROTECTION CONSISTENT 

WITH TITLE VII, JOHNSON CONTROLS MUST 
ADOPT A SEX-NEUTRAL POLICY THAT APPLIES 
EQUALLY TO ITS MALE AND FEMALE WORK­
ERS; SUCH A POLICY WILL ALLOW THE EM­
PLOYER BOTH TO COMPLY WITH TITLE VII AND 
TO MAKE THE' WORKPLACE SAFE FOR THE 
CHILDREN OF BOTH MALE AND FEMALE EM­
PLOYEES-.

Even though the current Johnson Controls’ policy is 
invalid under Title VII, Johnson Controls has several 
options if it genuinely seeks to adopt policies consistent 
with Title VII which also protect the fetus. First, it can 
study the hazards caused by the exposure of fertile work­
ers of either sex to lead, and adopt a policy which ap­
plies equally to all male and female workers. In develop­
ing its current policy, the company has focussed only on 
the exposure to lead of fertile women, and not of fertile 
men. It discounted, or ignored, studies showing the po­
tential impact of lead on the male reproductive system 
and the concrete ways in which male exposure could af­
fect fetal development. As the UAW’s and other amicus 
briefs show, the scientific evidence simply does not sup­
port a fetal protection policy that applies only to fertile 
women, and not to fertile men, and that does not consider 
the harms caused by loss of income.

In 1978, less than a month after enactment of the 
PDA, the Occupational Safety and Health Administration 
found:

There is conclusive evidence of miscarriage and still­
birth in women who were exposed to lead or whose 
husbands were exposed. Children born of parents 
either of ivhom were exposed to lead are more likely 
to have birth defects, mental retardation, behavioral 
disorders or die during the first year of childhood.

A. Lead has profoundly adverse effects on the 
reproductive ability of male and female workers in 
the lead industry.



26
B. Lead exerts its effects prior to _ conception 

through genetic damage (germ cell alteration), effects 
on menstrual, and ovarian cycles and decreased fer­
tility in women, decreased libido and decreased fer­
tility in men through altered spermatogenesis.

The record in this rulemaking is clear that male 
workers may be adversely affected by lead^as well 
as women. Male workers may be rendered infertile 
or impotent, and both men and women are subject to 
genetic damage which may affect both the course and 
outcome of pregnancy. Given the data in this record, 
OSHA believes there is no basis whatsoever for the 
claim that women of childbearing age should be ex­
cluded from the workplace in order to protect the 
fetus or the course of pregnancy. . . . There is no 
evidentiary basis, nor is there anything in this final 
standard, which would form the basis for not hiring 
workers of either sex in the lead industry.

OSHA Final Standard for Occupational Exposure to 
Lead, 48 Fed. Reg. 52,951, 52,954, 52,960, 52,966 (1978) 
(emphasis added). Professor Williams has explained 
some of the other ways in which the exposure of male 
workers to' lead can affect their children:

[T]he pregnant woman, and as a consequence, her 
fetus, can be exposed through a male worker to toxic 
substances found in the workplace. One well docu­
mented way in which such exposure occurs is by male 
transportation of hazardous substances from work to 
home on his clothes, shoes, or hair.ia Another route, 
theoretically likely but as yet unconfirmed, is ex­
posure of the pregnant woman and fetus through 12

12 The footnote for this statement cited “A. Hrieko, .[Working 
For Your Life: A Woman’s Guide To Job Health Hazards] C-8, 
0-9 [(1976)] (children exposed to lead carried home on parent’s 
clothing land] Stellman, [The Effects of Toxic Agents on
Reproduction, Occ. Health and Safety 36.] 42 [(Apr. 1979)] (ex­
posure to lead carried home on worker’s clothing).’ See also Ash­
ford, Netv Scientific Evidence and Public Health Imperatives, 316 
N. Engl. J. Med. 1034-85 (1987) (not only is the male reproduc­
tive system at risk but men may carry home lead-contaminated 
clothing or objects and expose wives and children).



27

vaginal absorption of toxic substances carried in the 
seminal fluid of the exposed male worker.13

Williams, Firing the Woman to Protect the Fetus: Recon­
ciliation of Fetal Protection with Employment Opportu­
nity Goals under Title VII, 69 Geo. L.J. 641, 657 (1981). 
These routes of transmission would help explain the 
studies linking “lead exposure in male lead workers with 
a high death rate among offspring in the first year of
life.” Johnson Controls, 218 Cal. App. 8d at ----- , 267
Cal. Rptr. at 168.

Adopting a policy that applies only to women is scien­
tifically irrational if the children of males exposed to lead 
can also be harmed. Stereotype, not science, best explains 
why Johnson Controls developed such a policy, for many 
employers believe that there is an “exclusive connection” 
between the mother and birth defects, notwithstanding 
scientific studies and common sense about the male role 
in reproduction.14 15 Moreover, one author has noted that 
“fertile women will be excluded only from higher-paying, 
traditionally male jobs and not from lower-paying, tradi­
tionally female jobs, even if fetal risks are the same.” ^  
The author also discussed the pesticide DBCP; when it 
was linked to infertility and sterility in men, it was 
banned by the EPA. That suggests a second stereo*

13 The footnote for this assertion stated:
J. Man son & R. Simon, Influence of Environmental Agents 
on Male Reproductive Failure, Work and Health op Women 
171 (V. Hunt ed. 1979). The authors state: “. . . [D]rugs trans­
mitted via the semen during coitus are likely to enter the 
systemic circulation of the female. This may constitute a sig­
nificant route of exposure for the female as well as the em­
bryo.” Id. at 332-33. See also J. Bell & J. Thomas, Effects of 
Lead on Mammalian Reproduction in Lead Toxicity 169, 174 
(Singha.1 & Thomas, eds. 1980 (“ [TJhere may be a passage of 
lead from the male via the semen which could influence the 
conceptus directly”).

14 Williams, 69 Geo. L.J. at 660.
15 Becker, From Muller v. Oregon to Fetal Vulnerability Policies, 

53 U. Chi. L. Rev. 1219, 1257 (1986).



2 8

type: male workers must be accommodated because their 
income is vital to their families, but female workers need 
not be, because they are merely secondary workers seek­
ing pin money whose income will not be missed. Stereo­
typical policies that apply only to women under the cover 
of pseudo-science indicate an attempt to discriminate 
against women, not an attempt to genuinely help the chil­
dren of those workers. To insure genuine protection for 
all children, Johnson Controls’ best option is to make the 
workplace safe for all workers, by adopting a policy that 
applies equally to men and women. Only that option 
accords with Senator Williams’ statement during the floor 
debates on the PDA that “ [n]o special restrictions ap­
plicable to pregnancy or childbirth alone will be per­
mitted under this legislation.” Senate Floor Debate, Leg. 
Hist, at 103.

It is possible, of course, that Johnson Controls’ policy 
was motivated not by fetal health concerns but by cost 
considerations. The record below includes no evidence as 
to the cost of lowering workplace exposure to lead; there 
is merely a conclusory statement that no company has 
been able to make batteries without using lead. Cost, 
however, is not an excuse for discrimination. See Arizona 
Governing Committee v. Norris, 463 U.S. 1073, 1085 n.14 
(1983) ; Los Angeles Dept, of Water & Power v. Man- 
hart, 435 U.S. 702, 716-17 (1978). In fact, the PDA 
was enacted despite projections that its cost would range 
from $130 million to $2.5 billion. S. Rep. at 11, Leg. 
Hist, at 48; Senate Floor Debate, Leg. Hist, at 98. As 
Senator Javits stated: “ [a]s in all legislation designed to 
correct social injustices, this bill will entail some costs 
to employers and to the public . . . . [T]he costs entailed 
are quite insignificant in light of the principle that 
underlies this bill.” Senate Floor Debate, Leg. Hist. 
at 68.

As yet another justification for its fetal protection 
policy, Johnson Controls claimed at the Seventh Circuit 
oral argument “that it is morally required to protect chil­
dren from their parents’ mistakes.” Johnson Controls,



29

886 F.2d at 912 (Easterbrook, J., dissenting). However, 
the legislative history of the PDA shows that Congress 
intended to prohibit employers from using a morality 
rationale as justification for a policy of refusing to hire 
and promote female employees whose morality offended 
them. The Congressional intent to prevent employers 
from justifying hiring, firing, and no-promotion policies 
based on their aversion to the woman’s moral decisions 
can be seen from how Congress handled the issue of 
abortion.

When the Senate first considered the abortion issue, it 
rejected an amendment by Senator Eagleton, which would 
have added the following sentence to the first section: 
“As used in this subsection, neither ‘pregnancy’ nor ‘re­
lated medical conditions’ may be construed to include 
abortions except where the life of the mother would be 
endangered if the fetus were carried to term.” Senate 
Floor Debate, Leg. Hist, at 112. Those opposing the 
amendment emphasized, in urging its defeat, that it 
would allow employers to impose their moral beliefs on 
their employees. As Senator Javits explained, the Eagle- 
ton amendment

leaves the employer in a position where, if any em­
ployee determines to have an abortion, that employer 
can take any adverse discriminatory action. He can 
refuse to hire, he can fire, he can demote, he can 
deny promotion, he can cut pay. In effect, therefore, 
the conscience of the employer would be foisted upon 
the employee, and I cannot conceive of our acquiescing 
in any such result.

. . . [The amendment] would superimpose the 
right of the employer over the constitutionally pro­
tected individual conscience of the employee.

Senate Floor Debate, Leg. Hist, at 118-19 (emphasis 
added). The Senate then tabled the amendment. Id. at 
120. It thus made very clear that an employer could 
not “foist” its moral beliefs on an employee through a 
policy of firing or refusing to hire women who had had 
abortions.



30
While the House bill did contain an abortion exception, 

it applied only to fringe benefits, not to hiring and firing 
policies. Leg. Hist, at 145. The Conference Committee 
narrowed the House’s language even further, to an excep­
tion for health insurance benefits alone. House Con­
ference Report, Leg. Hist, at 194. This left intact the 
original PDA provision barring employers from firing or 
from refusing to hire or promote women who had had 
abortions. Senator Javits explained: “since the abortion 
proviso specifically addresses only health insurance, the 
proviso in no way affects an employee’s right to sick pay 
or disability benefits or, indeed, the freedom from dis­
crimination based on abortion in hiring, firing, seniority, 
or any condition of employment other than medical in­
surance itself.” Senate Floor Debate, Leg. Hist, at 
203. Thus, under the PDA as enacted, employers may not 
refuse to hire or promote women who have had abortions. 
The policy of refusing to hire or promote women who are 
pregnant, or who may become so, out of a claimed moral 
concern for the health of their fetuses, fares no better. 
In neither case does the employer have a right to foist 
its conscience on the woman.

CONCLUSION

In conclusion, this Court should not disturb the policy 
decisions that Congress made in enacting the PDA— 
policies that are so clearly spelled out in the comprehen­
sive legislative history that the Seventh Circuit simply 
ignored. Thus, for the reasons stated above, this Court 
should reverse the decision of the Seventh Circuit, grant 
summary judgment to the UAW, and rule that the John­
son Controls’ policy of banning all fertile women from 
employment in the alleged interest of fetal health is a 
facial violation of Title VII, as amended by the PDA, 
that cannot be justified by a BFOQ.



Respectfully submitted,
31

Susan Deller R oss *
Naomi R. Ca hn  
R obin Markush 
Georgetown U niversity Law 

Center  Sex Discrimination  
Clin ic

600 New Jersey Ave., N.W. 
Washington, D.C'. 20001 
(202) 662-9640
* Counsel of Record for 

Amici Curiae

Thanks are extended to attorney Resa Goldstein, and Georgetown 
University Law Center students Chris Jacobson and Edwin Rod­
riguez for their help in preparing this brief.



APPENDIX



la

APPENDIX
INTEREST OF AMICI CURIAE

This brief amici curiae is submitted on behalf of 
Equal Rights Advocates, NOW Legal Defense and Edu­
cation Fund, the National Women’s Law Center, and the 
Women’s Legal Defense Fund, These organizations were 
leaders in the Campaign to End Discrimination Against 
Pregnant Workers, the coalition which was the principal 
proponent of the Pregnancy Discrimination Act, and/or 
have represented women with claims of pregnancy-based 
discrimination. Amici believe that the decision below 
has the potential for causing great harm to enforcement 
of the PDA. This brief amici curiae is filed in support 
of the Petitioners in this case.

Equal Rights Advocates, Inc. (ERA) is a San Fran­
cisco based public interest law firm dedicated to securing 
legal and economic equality for women through litiga­
tion, advocacy and public education. A major portion of 
ERA’s work over the last sixteen years has been dedi­
cated to the elimination of sex discrimination in the 
workplace. ERA was a member of the Campaign to End 
Discrimination Against Pregnant Workers, a broad- 
based coalition that worked to enact the PDA. ERA be­
lieves that employment discrimination based on preg­
nancy and a woman’s reproductive capacity adversely 
affects large numbers of women workers and their right 
to equal employment opportunities.

The NOW Legal Defense and Education Fund (NOW 
LDEF) is a non-profit civil rights organization that per­
forms a broad range of legal and educational services 
nationally in support of women’s efforts to eliminate sex- 
based discrimination and secure equal rights. NOW 
LDEF was founded in 1970 by leaders of the National 
Organization for Women, a membership organization of 
over 250,000 women and men in more than 750 chapters 
throughout the country. A major goal of NOW LDEF 
is the elimination of barriers that deny women economic



2a

opportunities. Discrimination against women based upon 
reproductive capacity, as a major barrier to women’s full 
and equal employment, is a central concern to NOW 
LDEF.

The National Women’s Law Center is a non-profit or­
ganization founded in 1972 as the Women’s Rights Proj­
ect of the Center for Law and Social Policy, and it be­
came an independent organization in 1981. The Center 
first became actively involved in the issue of pregnancy 
discrimination in 1973, through its representation of 
amici curiae in support of the plaintiffs at the trial level 
in General Electric Co. v. Gilbert, 429 U.S. 125 (1976). 
The Center continued its participation in this landmark 
case in the Court of Appeals and Supreme Court, Fur­
ther, once Gilbert was decided, the Center became active 
first in developing and then participating in the Cam­
paign to End Discrimination Against Pregnant Workers. 
In this capacity, the Center closely monitored the progress 
of the Pregnancy Discrimination Act, and provided tech­
nical assistance in support of its passage. Since that 
time, the Center has participated in numerous cases ad­
dressing problems of pregnancy discrimination, counseled 
victims of such discrimination, and served as a legal re­
source to combat pregnancy discrimination in many 
forums.

The Women’s Legal Defense Fund (WLDF) is a non­
profit, membership organization founded in 1971 to ad­
vance women’s equality. WLDF combats gender-based 
discrimination in employment through litigation of sig­
nificant cases, the operation of a counseling program, 
and agency advocacy before the EEOC and other agen­
cies charged with enforcement of the equal opportunity 
laws. WLDF has had a particular interest in the issue 
of pregnancy-based employment discrimination because 
of its theoretical and practical centrality to equal em­
ployment opportunity for women. Thus, after this Court’s 
decision in General Electric Co. v. Gilbert, supra, WLDF 
played a leading role in the coalition formed to enact the



3a

Pregnancy Discrimination Act. After the PDA’s enact­
ment, WLDF advocated issuance of strong guidelines in­
terpreting the PDA by the Equal Employment Oppor­
tunity Commission, and instituted a Pregnancy Rights 
Monitoring Project to educate the public about their 
rights under the PDA and to monitor government agen­
cies’ enforcement of that Act; WLDF continues this role 
to the present day. In 1979, WLDF began to advocate 
that the EEOC issue guidelines on the application of 
Title VII, as amended by the PDA, concerning employ­
ers’ exclusion of fertile women based on alleged occupa­
tional reproductive health hazards, and founded a Coali­
tion on the Reproductive Rights of Workers to promote 
public policy that ensures workplaces safe for all work­
ers, including pregnant women. Again, WLDF has con­
tinued to comment on and monitor the development of 
EEOC policy regarding reproductive health hazards. 
WLDF has also participated as amicus in the two cases 
that have come before this Court on the proper interpre­
tation of the PDA: Netvport News Shipbuilding & Dry 
Dock Co. v. EEOC, 462 U.S. 669 (1983), and California 
Federal Savings & Loan Assoc, v. Guerra, 479 U.S. 272 
(1987). Finally, WLDF has led the efforts to secure 
passage of the federal Family and Medical Leave Act in 
Congress and of similar laws in the states.

The American Civil Liberties Union, which was also 
a major participant in the Campaign to End Discrim­
ination Against Pregnant Workers, fully endorses this 
amid curiae brief, but is submitting a separate brief on 
behalf of itself and other amici.