International Union v. Johnson Controls, Inc. Brief of the NAACP LDF as Amici Curiae Supporting Petitioners

    No. 89-1215

In  The

S u p r e m e  C o u r t  o f  tt)e A m t e l l  s ta te s ?
October  Ter m , 1989

International U nion, U nited A utomobile 
A erospace and A gricultural Implement 

W orkers of A merica, et al,
Petitioners,

v.
Johnson Controls, Inc.,

Respondents.

On Writ of Certiorari To The United States 
Court of Appeals for the Seventh Circuit

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AND THE NATIONAL 

BLACK WOMEN’S HEALTH PROJECT AS AMICI 
CURIAE SUPPORTING PETITIONERS

Julius LeVonne Chambers 
Charles Stephen Ralston 
Ronald L. E llis*
M arianne Engelman Lado 
Charlotte Rutherford 

99 Hudson Street, 16th FI. 
New York, NY 10013 
(212) 219-1900

Counsel for Amici Curiae

* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



QUESTIONS PRESENTED

(1) Whether a policy which explicitly

bars all women of child bearing capacity 
from employment constitutes a prima facie 

case of disparate treatment.
(2) Whether the business necessity 

defense, available to rebut a prima facie 

case of disparate impact, can be applied to 

justify overt disparate treatment.
(3) Whether employers have a defense

under Title VII that permits them to main­
tain facially discriminatory policies and 

unhealthy work environments.

i







Page

B. The Health Status of
African American Women 
Workers Is Adversely 
Affected by The Hazard­
ous Work Conditions Found 
in Predominantly Female 
Occupations ................ 44

IV. EXCLUDING ALL POTENTIALLY
PREGNANT WOMEN FROM CERTAIN 
BETTER-PAYING JOBS WILL PLACE 
AFRICAN AMERICAN FAMILIES 
AT GREATER RISK OF POVERTY 
AND POOR HEALTH ............... 53
A. Women’s Earnings Support

Their Families ............ 53

B. Most Low-Wage Jobs Lack
Employer-Provided Health 
Coverage ..................  58

CONCLUSION .......................... 6 3

IV



TABLE OF AUTHORITIES
Cases i
Arizona Governing Committee 

v. Norris, 463 U.S. 1073
(1983) ................. . . . •

Colby v. J.C. Penney Co.,
811 F .2d 1119 (7th c i r .  1987) . .

Connecticut v. Teal,
457 U.S. 440 (1982) .............

Dothard v. Rawlinson,
433 U.S. 321 (1977) .............

International Brotherhood of 
Teamsters v. United States,
431 U.S. 324 (1977)........  9,

International Union, UAW v. Johnson 
Controls, Inc., 886 F.2d 871 
(7th Cir. 1989) .................

Johnson Controls, Inc. v. California 
Fair Employment and Housing 
Commission, 218 Cal.App.3d 517 
(1990).....................  18,

Los Angeles Department of Water & 
Power v. Manhart, 435 U.S. 702 
(1978) . . . . . . .  .11, 13, 14,

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) .............

Nashville Gas Co. v. Satty,
434 U.S. 136 (1977) .............

Page

12, 14

. . 10 

. . 9

23

10, 11 

16, 53

20, 26

15, 18 

11 , 12 

. . 10

V



Newport News Shipbuilding and Dry 
Dock Co. V .  EEOC, 462 U.S. 669 
(1983)..................... .. .19

Phillips v. Martin Marietta Corp.,
400 U.S. 542 (1971)............. 13, 14

Price Waterhouse v. Hopkins,
490 U.S. __, 104 L .Ed.2d 268
(1989)............................... 23

Trans World Airlines, Inc. 
v. Thurston, 469 U.S. Ill 
(1985)............................ 12, 13

United Steelworkers of America, etc. 
v. Marshall, 647 F.2d 1189 
(D.C. Cir. 1980), cert, denied,
453 U.S. 913 (1981)................... 16

Wambheim v. J.C. Penney Co.,
705 F .2d 1492 (9th Cir.
1983), cert, denied, 467
U.S. 1255 (1984)  .10

Wards Cove Packing Co. v. Atonio,
490 U.S. __, 104 L. Ed.
733 (1989)   25

Weeks v. Southern Bell Telephone &
Telegraph Co., 408 F.2d 228 
(5th Cir. 1 9 6 9 ) .....................  24

Statutes i

§701(k) of Title VII, 42 U.S.C.
2000e (k) ................... 19, 24, 27

§703(a) of Title VII, 42 U.S.C.
§2 000e-2(a) . . . . . . .  8, 10, 11, 13

vi



§703(e) of Title VII, 42 U.S.C.
2000e-2 (e) ................. 8, 21, 23

43 Fed. Reg. 52953 (1978)...............  16

H.R. Rep. 948, 95th Cong.,
2nd Sess. (1978).....................  19

Other Authorities:
J. Bertin, "Reproductive Hazards

in the Workplace" in Reproductive 
Laws for 1990's: A Briefing 
Handbook 207-232 (N. Traub and S.
Cohen, eds. 1989 .    38

Census, U.S. Dept, of
Commerce, Statistical 
Abstract of the United
States 1989.   44

Children's Defense Fund, A 
Vision for America's
Future (1989) .................  Passim

Children's Defense Fund,
Black and White Children 
in America: Key Facts
(1985)............................ 56, 57

Cong., 1st Sess., U.S.
Children and Their 
Families: Current 
Conditions and Recent
Trends. 1987, ...................  54, 55

v n



Davis, The Impact of
Workplace Health and 
Safety on Black Workers:
Assessment and 
Prognosis. 31 Lab.
L.J. 723 . . . . . .  .31, 33, 40, 41, 42

49, 52
B. Thornton Dill, L. Weber 

Cannon, R. Vanneman, Pay 
Equity: An Issue of 
Race, Ethnicity and Sex 
1 (National Committee on
Pay Equity 1987) ...................  57

EEOC Policy Guidance on Reproductive 
and Fetal Hazards Daily Lab. Rep.
(BNA) No. 193 at D-l (October 5,
1988)................................  2 7

EEOC Policy Guidance on United Auto 
Workers v. Johnson Controls, Inc.
Daily Lab. Rep. (BNA) No. 18,
at D-l (January 26, 1990) . . . .  27, 28

H. Pipes McAdoo, Changes in 
the Formation and 
Structure of Black 
Families: The Impact on 
Black Women 
(Wellesley College 
Center for Research on 
Women, Working Paper No.
182, 1988)........................ 54, 55

Mahaffey, et al., National 
Estimates of Blood Lead 
Levels: United States,
1976-1980. 307 New
Eng.J. of Medicine 575 (1982) . . . .  35

v m



J. Malveaux, Low Wage Black Women: 
Occupational Descriptions,
Strategies for Chancre, unpublished 
paper prepared for the NAACP Legal 
Defense and Educational Fund, Inc.
(1984)............... . .45, 49, 51, 58

Mullings, "Minority Women,
Work, and Health," in
Double Exposure: Women's Health
Hazards on the Job and At
Home (1984)...............37, 43, 45,

50,

National Center for Health 
Statistics, U.S. Dep1t 
of Health and Human 
Services, Pub. No. (PHS)
89-1232, Health, United
States. 1988 (1989)...........32, 40,

M. Paul, C. Daniels, and R. Rosofsky, 
Corporate Response to Reproductive 
Hazards in the Workplace: Results 
of the Family, Work and Health 
Survey, 16 Am.J. of Indus. Medicine 
267 (1989)..................... ..

46
51

41

38

Pollack and Grozuczak, Reagan,
Toxics and Minorities. Urban 
Environment Conference c/o 
United Steelworkers of America 
(1984)............. 30, 31, 35, 36, 43

Rosenberg, "The home is the Workplace" 
in Double Exposure 229 (W. Chavkin,
ed. (1984).........................  48

IX



Robert Severo, "The Genetic Barrier: Job 
Benefit or Job Bias," The New York 
Times Feb. 3,4,5,6, 1980, reprinted
1980 by Womens Occupational Health 
Resources Center, Columbia 
University......................... .22

Staff of House Comm, on Ed. 
and Labor, 101st Cong.,
2d Sess. Report on The 
EEOC. Title VII and 
Workplace Fetal 
Protection Policies in
the 1980s (1990) ........... 17, 27, 39

J. Mager Stellman, Women's
Work, Women's Health (1977) . . . 46, 47

U.S. Congress, Reproductive
Health Hazards in the Workplace
(1985)..............................  56

U.S. Dept, of Health and Human
Services, Report of the Secretary's
Task Force on Black & Minority
Health. Vol. I (1985)...............  32

Chris Winder, "Reproductive and
Chromosomal Effects of Occupational 
Exposure to Lead in the Male,"
3 Reproductive Toxicology 221
(1989)..............................  17

Women's Bureau, U.S. Dep't 
of Labor, Bulletin 298,
Time of Change: 1983
Handbook on Women
Workers (1983).................  50, 56

x



48
Women's Occupational Health 

Resource Center News 
No. 4 (September 1982) .

xi



In The
SUPREME COURT OF THE UNITED STATES 

October Term, 1989

INTERNATIONAL UNION, UNITED AUTOMOBILE 
AEROSPACE AND AGRICULTURAL IMPLEMENT 

WORKERS OF AMERICA, ET AL.,
Petitioners,

v.
JOHNSON CONTROLS, INC.,

Respondents.

On Writ of Certiorari To The United States 
Court of Appeals for the Seventh Circuit

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AND THE NATIONAL 
BLACK WOMEN'S HEALTH PROJECT AS AMICI 

CURIAE SUPPORTING PETITIONERS

INTEREST OF AMICI CURIAE

The NAACP LEGAL DEFENSE & EDUCATIONAL 

FUND, INC. ("LDF") is a national non-profit 

corporation formed to assist African 

Americans in the vindication of their 

constitutional and civil rights. For many



2
years LDF has pursued litigation to secure 

the basic civil and economic rights of low- 

income black families and individuals. 

Intentional and unintentional employment 

practices which discriminate against 

African Americans have been a primary LDF 
concern. LDF has also worked on behalf of 

African Americans struggling with the 

burden of poor health and discriminatory 
and inadequate health care services.

LDF is particularly concerned with the 
growing rates of poverty among African 

Americans and with the number of single 

female-headed African American families 

that are living in poverty. Through its 

Poverty & Justice Program, LDF is 

challenging the barriers to economic 

advancement to help improve the economic 

status and living conditions of the many in 

poverty. LDF's Black Women's Employment 

Program strives to remove obstacles to



3
employment in occupations where African 

American women are underrepresented and to 

provide access to jobs with better wages, 

decent conditions, and pension and health 
benefits. Currently, the majority of 

working African American women are employed 
in low-paying occupations.

The NATIONAL BLACK WOMEN'S HEALTH 
PROJECT is a health, education and advocacy 

organization which works to improve the 

quality of life for African American women. 

It works to promote non-discriminatory 

approaches to insure that all African 
American women have access to health 

services, including abortion, that maximize 

maternal health, reduce infant mortality 

and produce healthy babies. Because poor 

African American women are particularly 

vulnerable to economic coercion, the impact 

of exclusionary policies may be 

particularly severe for them.



4
Letters from the parties consenting to 

the filing of this brief have been filed 

with the Court.
SUMMARY OF THE ARGUMENT

Amici, supporting petitioners, address 

two important issues: first, the 

applicability of settled distinctions in 
employment discrimination law to fetal 

protection policies; and second, the impact 

of such policies on African American 

workers and their children.
First, it is well established that 

Title VII of the Civil Rights Act of 1964 

prohibits two discrete types of employment 

discrimination: disparate treatment and 

disparate impact. Employment policies that 

are discriminatory on their face -- that 

is, they distinguish individuals on the 

basis of their gender —  can be upheld by 

courts only under extraordinary 

circumstances: an employer must establish



5
that sex is a BFOQ, a bona fide 

occupational qualification reasonably 

necessary to the normal operation of that 

particular business or enterprise. As this 

Court has recognized, the BFOQ was meant to 

be an extremely narrow exception to the 
general prohibition of discrimination on 
the basis of sex. By contrast, cases of 

disparate impact, involving facially 

neutral policies or practices, can be 

answered by a claim of business necessity.
Fetal protection policies which 

exclude all fertile women from particular 

jobs in order to prevent possible damage to 
potential fetuses are facially discrimina­

tory. They classify job applicants and 

employees by gender and treat individuals 

differentially on the basis of that 

classification. Such policies bar the 

employment of all women of child-bearing 

capacity, whether or not they are pregnant



6
or contemplating pregnancy, but do not 

prohibit the employment of male workers 

whose reproductive health may also be 
damaged by workplace hazards.

The Seventh Circuit's application of 

the business necessity defense to a 

facially discriminatory fetal protection 

policy was erroneous, as it blurred the 

essential difference between disparate 
treatment and disparate impact cases. This 
case has the potential to disrupt settled 

analytic standards and to dilute legal 

protections against employment 

discrimination. Employers with potentially 
hazardous work environments should not be 

allowed to deny employment opportunities to 

a class of workers who are believed to be 

at greater risk in a hazardous environment 

because of gender or genetic make-up, but, 

instead, should be required to protect the 

health and safety of all workers.



7

Second, African American workers are 

overrepresented in industries and 

occupations that pose significant health 

and safety hazards. Reductions in health 
and safety protections for workers, which 
that may result if employers are allowed to 

evade their responsibility to make 

workplaces safe for all employees, will 

disproportionately adversely effect African 
Americans.

Moreover, exclusionary policies that 
restrict employment opportunities for all 

women will further limit access for low- 

income women to better-paying jobs, as well 

as their attendant health and pension 

benefit programs. Most working poor, 

female single-headed families, a dispro­

portionate number of whom are African 

American, face poverty and lack health 
coverage. No barriers to improving the



8
economic and health outlook of these 

families should be permitted.
ARGUMENT

I. AN EXPLICIT CLASSIFICATION BASED ON 
SEX AND THE CAPACITY TO HAVE CHILDREN 
IS NOT GENDER NEUTRAL AND CONSTITUTES 
DISPARATE TREATMENT
A. The Distinct Types of Discrimina- 

Practices Proscribed in §703(a)

Title VII forbids two types of

employment discrimination. The first,
disparate treatment, both overt or facial

and covert or pretextual, is prohibited by

§703(a)(1) of Title VII.* 1 "'Disparate

The statutory proscription 
against discriminatory treatment states:

It shall be an unlawful 
employment practice for an 
employer:
1. to fail or refuse to hire or 
to discharge any individual, or 
otherwise to discriminate against 
any individual with respect to 
his compensation, terms, condi­
tions, or privileges of employ­
ment, because of such individ­
ual's race, color, religion, sex, 
or national origin;



9
treatment1 ... is the most easily understood 
type of discrimination. The employer 

simply treats some people less favorably 

than others because of their race, color, 

religion, sex, or national origin.'" 
International Brotherhood of Teamsters v. 
United States. 431 U.S. 324, 335 n.15 
(1977) .

"A disparate impact claim," on the 

other hand, "reflects the language of 

§703(a)(2)."* 2 Connecticut v. Teal. 457 U.S.

§703(a) of Title VII, 42 U.S.C. §2000e- 
2(a) .

The statutory proscription 
against discriminatory impact states:

It shall be an unlawful 
employment practice for an 
employer:

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



10
440, 448 (1982). Claims of disparate 

impact "involve employment practices that 

are facially neutral in their treatment of 

different groups but that in fact fall more 

harshly on one group than another and 
cannot be justified by business necessity." 

Teamsters. 431 U.S. at 335 n. 15.
Although the §703 framework evinces 

no intent to restrict plaintiffs to one of 
the two provisions as an exclusive remedy,3

otherwise adversely affect his 
status as an employee, because of 
such individual's race, color, 
religion, sex, or national 
origin.

§7 03 (a) of Title VII, 42 U.S.C. §2000e- 
2(a) .

3 Several lower courts have held 
that plaintiffs may also bring disparate 
impact challenges under §703 (a)(1). See, 
e . q . , Colby v. J.C. Penney Co., 811 F.2d 
1119, 1127 (7th Cir. 1987); Wambheim v.
J.C. Penney Co.. 705 F.2d 1492, 1494 (9th
Cir. 1983), cert. denied. 467 U.S. 1255
(1984) ; cf. Nashville Gas Co. v. Sattv, 434 
U.S. 136, 144 (1977) (The Court "need not
decide whether ... it is necessary to prove



11
the statutory language clearly encompasses 
two distinct forms of discrimination: 

disparate treatment and disparate impact.

The Court has applied §703 (a)(1) in a 

variety of circumstances involving 

disparate treatment. See, e .a ., Los 

Angeles Department of Water & Power v. 

Manhart, 435 U.S. 702 (1978) (direct 

evidence of a policy of disparate 

treatment) ; McDonnell Douglas Corp. v. 
Green. 411 U.S. 792 (1973) (individual 
disparate treatment); International 

Brotherhood of Teamsters v. United States, 

431 U.S. 324 (1977) (pattern or practice of 

disparate treatment). The standard for 

evidentiary analysis applied in these cases 

depends upon the existence of direct 
evidence of discriminatory treatment. 

Where direct evidence is absent, the

intent to establish a prima facie violation 
of §703 (a) (1) .") .



12
plaintiff must establish a prima facie case 
through circumstantial evidence. See 

McDonnell Douglas. 411 U.S. at 802. "The 

shifting burdens of proof set forth in 
McDonnell Douglas are designed to assure 

that the 'plaintiff [has] his day in court 

despite the unavailability of direct 
evidence.'" Trans World Airlines. Inc, v. 

Thurston. 469 U.S. Ill, 121 (1985) (quoting 

Loeb v. Textron. Inc,, 600 F.2d 1003, 1014 

(1st Cir. 1979)). By contrast, "the 

McDonnell Douglas test is inapplicable 

where the plaintiff presents direct 

evidence of discrimination." Thurston, 469 

U.S. at 121.
An employment policy or practice is 

established as facially discriminatory, 

without further need to show a 

discriminatory intent, where plaintiff's 

direct evidence of discrimination is 

accepted. Arizona Governing Committee v.



13
Norris, 463 U.S. 1073, 1084 (1983)

(retirement plan paying lower benefits to 

women than to men is facially discrimi­

natory) ; Manhart, 435 U.S. at 708 (policy 
requiring female employees to make larger 
contributions to pension fund than male 

employees is facially discriminatory); 

Phillips v. Martin Marietta Corp., 400 U.S. 

542 (1971) (per curiam) (policy of hiring

men but not women with pre-school age 
children is facially discriminatory) ; 

Thurston, 469 U.S. at 121 (policy 
conditioning transfer rights on age of 
airline captains is facially 

discriminatory).
B. An Employment Policy Which 

Explicitly Classifies Applicants 
and Employees According To Gender 
And Capacity To Have Children Is 
Facially Discriminatory Under 
§§703(a)(1) and 701(k)

"Section 703(a) of the Civil Rights 
Act of 1964 requires that persons of like



14
qualifications be given employment 

opportunities irrespective of their sex." 

Phillips. 400 U.S. at 544. "It precludes 

treatment of individuals as simply 
components of a racial, religious, sexual, 

or national class." Manhart. 435 U.S. at 

708 .
Demonstration that an employer openly 

differentiates between male and female 

applicants or employees is direct evidence 

of discrimination. As such, an employment 

policy which is written with an explicit 
reference to gender and applies to all 

individuals of one sex and not the other 

has always been held to be facially 

discriminatory. See Norris, 463 U.S. at 

1084 (benefit levels based on gender); 

Manhart, 435 U.S. at 708 (contribution 

requirement based on gender) ; Phillips, 400 

U.S. at 544 (separate hiring policies for 

women having pre-school children and for



15
men similarly situated). As this Court has 

stated, "Practices that classify employees 

in terms of religion, race, or sex tend to 

preserve traditional assumptions about 

groups rather than thoughtful scrutiny of 

individuals." Manhart, 435 U.S. at 709.
"Fetal protection policies," such as 

the hiring policy at issue in the present 
case, explicitly classify applicants and 
employees by gender. These policies 

require that female applicants -- but not 

males —  offer proof of sterility. 
Employers thus explicitly categorize 

prospective and current employees by sex 

despite abundant evidence that toxic 

exposure in the workplace poses a health 

hazard to the potential offspring of both 

male and female workers.4 See 43 Fed.Reg.

4 In addition, employers justify
the employment policy in a facially 
discriminatory way: the stated intention
of the policy is to protect not only



16
male and female workers.4 See 43 Fed.Reg. 

52953, 52966 (1978) (Occupational Safety 
and Health Administration, OSHA, finding 

that "male workers may be adversely 

effected [sic] 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."); United Steelworkers of 

America, etc, v. Marshall. 647 F.2d 1189, 

1257 (D.C. Cir. 1980), cert. denied, 453 

U.S. 913 (1981) (OSHA found "abundant 

support" for view that lead exposure 
presents health risks to offspring of male

In addition, employers justify 
the employment policy in a facially 
discriminatory way: the stated intention 
of the policy is to protect not only 
potential offspring but also "their 
mothers." The risk of harm to potential 
fathers is not granted similar 
consideration. International Union, UAW v. 
Johnson Controls. Inc., 886 F.2d 871, at 
884 n .25 (7th Cir. 1989).



17
and female workers and, thus, the standard 

for lead exposure must protect reproductive 

capacities of both sexes). See also Staff 

of House Comm, on Ed. and Labor, 101st 
Cong., 2d Sess. , Report on The EEOC, Title 

VII and Workplace Fetal Protection Policies 

in the 1980s, at 7-9 (Comm. Print 1990); 

Chris Winder, "Reproductive and Chromosomal 

Effects of Occupational Exposure to Lead in 
the Male," 3 Reproductive Toxicology 221 

(1989) .

Employment policies that differentiate 

between males and females for the purpose 

of evaluating the risk of damage to 

potential offspring are based on 

unwarranted assumptions and stereotypes 

about class characteristics: such gender- 

based classifications are simultaneously 

underinclusive, since lead exposure 

increases reproductive risks for both male 

and female workers, and overbroad, by



18
encompassing all female employees, even 

though most women in an industrial labor 
force do not become pregnant. Johnson 

Controls. 886 F.2d at 913 (Easterbrook, J., 
dissenting). These explicit gender-based 

policies are indeed founded upon discrimi­

natory assumptions about the relevance of 

physical differences. They improperly 

impute to every individual female 

generalizations about risks to fetal health 

posed by the class of females as a whole. 
"Even a true generalization about the class 

is an insufficient reason for disqualifying 

an individual to whom the generalization 

does not apply." Manhart, 435 U.S. at 708.
In 1978, Congress amended the Civil 

Rights Act of 1964 to clarify its intent 

that gender distinctions based on 

"pregnancy, childbirth, or related medical 

conditions" are also prohibited by Title

VII.



19
§ 701(k) of Title VII provides, in

part:

The terms "because of sex" or "on 
the basis of sex" 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....

42 U.S.C. §2000e(k)(emphasis added). 
Congress thus esta-blished that 

differential treatment of pregnancy is 

gender-based discrimination. Newport News 
Shipbuilding and Dry Dock Co. v. EEOC. 462 

U.S. 669 (1983). The legislative history 
of this amendment to Title VII makes clear 

that distinctions based on the child­

bearing capacity of women constitute sex 

discrimination. H.R. Rep. 948, 95th Cong., 

2nd Sess. at 2, 5, 6, reprinted in 1978 

U.S. Code Cong. & Admin. News 4749, 4750,



20
4753, 4754. Thus, explicit classifications 

based on the capacity to become pregnant, 

even though they are based on real physical 

differences between men and women, are 

proscribed by Title VII.
Despite the fact that Johnson 

Controls' fetal protection policy is 
facially discriminatory, the Seventh 

Circuit failed to apply the analytic 

framework appropriate for cases of 

disparate treatment. The court's 

"flexible" approach to claims of overt 
discrimination, see Johnson Controls, 886 

F . 2d at 883, threatens to dilute protection 
against the most egregious forms of 

employment discrimination, including 

explicit classifications on the basis of 

race.5 At least one major company has

Significantly, facial discrimi­
nation on the basis of race is simply 
impermissible: the BFOQ exception to the 
prohibition of such discrimination is not



21
adopted a workplace screening and hiring 
policy that classified applicants and 
employees on the basis of race. The 

rationale is analogous to that used for 

fetal protection policies: because of 

group differences, specifically a greater 

incidence of sickle cell trait, particular 
workplace hazards pose heightened risks to 

the health of African Americans. Although 

it is generally accepted that the trait for 

sickle-cell anemia is harmless, the Du Pont 

Company adopted a policy designed to reduce 

health risks by screening all group members 
for the sickle cell trait and, then, by

available to defend racial classifications. 
See §703(e) of Title VII, 42 U.S.C. 2000e- 
2(e) (defense limited to "those certain 
instances where religion, sex, or national 
origin is a bona fide occupational quali­
fication ....") . Application of the 
business necessity defense to claims of 
facial and intentional discrimination would 
turn the clock back on employment discrimi­
nation law by allowing a defense for ex­
plicit racial classifications.



22
excluding all individuals with the trait 

from jobs involving exposure to hazardous 

substances. See R. Severo, "The Genetic 

Barrier: Job Benefit or Job Bias," The New 

York Times Feb. 3, 4, 5, 6, 1980, reprinted 

1980 by Womens Occupational Health 

Resources Center, Columbia Univ. This 

Court should not countenance a decision 

which disregards the basic distinction 

between disparate treatment and disparate 

impact cases that has guided twenty-five 

years of Title VII jurisprudence and 

provided protection against employment 

policies that would classify individuals on 

the basis of group membership.



23
II. STATUTORY LANGUAGE, THE STANDARD OF 

EVIDENTIARY ANALYSIS DEVELOPED BY THE 
COURT, AND ADMINISTRATIVE INTERPRE­
TATION DEMONSTRATE THAT A CASE OF DIS­
PARATE TREATMENT CAN ONLY BE OVERCOME 
BY THE ESTABLISHMENT OF A BONA FIDE 
OCCUPATIONAL QUALIFICATION

Title VII prohibits discrimination on 

the basis of gender unless sex is a "bona 

fide occupational qualification reasonably 

necessary to the normal operation of that 

particular business or enterprise." 

§703(e) of Title VII, 42 U.S.C. 2000e- 
2(e). The Bona Fide Occupational

Qualification (BFOQ) "was in fact meant to 

be an extremely narrow exception to the 

general prohibition of discrimination on 

the basis of sex." Dothard v. Rawlinson, 

433 U.S. 321, 334 (1977).
When an employer asserts that gender 

is a bona fide occupational qualification, 

the employer has the burden of persuasion. 

Price Waterhouse v. Hopkins, 490 U.S. __,



24
104 L .Ed.2d 268, 287 (1989). The employer 

must demonstrate, first, that the 

occupational qualification is "reasonably 

necessary to the normal operation of [the] 

particular business. Second, "[t]he 

principle of nondiscrimination" requires 

that the employer show that "all or 

substantially all women would be unable to 

perform safely and efficiently the duties 

of the job involved." Weeks v. Southern 

Bell Telephone & Telegraph Co.. 408 F.2d 

228, 235 (5th Cir. 1969).

The Pregnancy Discrimination Act 

explicitly defined the standard to be 

applied in cases of gender discrimination 

involving the capacity of women to bear 

children: a showing of disparate treatment 

can be overcome only by a showing that 

female employees differ from others "in 

their ability or inability to work." 

§701(k) of Title VII, 42 U.S.C. 2000e(k).



25
By contrast, business necessity can be 

asserted to justify facially neutral 

practices that have an adverse impact on 

members of a protected class. This Court 

recently stated the relevant query: "[in]

a disparate impact case, the dispositive 

issue is whether a challenged practice 

serves, in a significant way, the 

legitimate employment goals of the 

employer." Wards Cove Packing Co. v.

Atonio, 490 U.S. __, 104 L.Ed. 733, 752

(1989) .
Business necessity has never been a 

defense to overt discrimination. The 

Seventh Circuit's adoption of the business 

necessity defense in this case was an 

attempt to circumvent the requirements of 

the BFOQ defense. The California Court of 

Appeal which also considered Johnson 

Controls' fetal protection policy expressly 

disagreed with and declined to follow the



26

reasoning of the Seventh Circuit. The 

state court properly found the employment 

policy facially discriminatory and 

concluded that only the BFOQ defense 

applied. "The fact that it may be 

difficult for the employer to meet the BFOQ 

standard in a [fetal protection policy] 

situation is a concern of the legislature." 

Johnson Controls, Inc, v. California Fair 

Employment and Housing Commission. 218 

Cal.App.3d 517 (1990) at 37. To adopt the 

business necessity defense in this context 

is to "champion an analysis which holds 

that overt, facial discrimination creates 

only a presumption of discrimination." Id. 

at 3 9.

Administrative interpretation of Title 

VII also supports the position that only 

the demonstration of a BFOQ can overcome a 

case of disparate treatment. An Equal 

Employment Opportunity Commission internal



27
policy guidance issued after the Seventh 

Circuit's Johnson Controls decision stated 

that fetal protection policies which 
exclude only women constitute per se 

violations of Title VII.6 "For the

Although the EEOC1s statements 
regarding the proper analytic framework for 
review of fetal protection policies have 
not been consistent, see Staff of House 
Comm, on Ed. and Labor, 101st Cong. , 2d 
Sess. , Report on The EEOC, Title VII and 
Workplace Fetal Protection Policies in the 
1980s (Comm. Print 1990), it is significant 
that on January 24, 1990, the Commission
released a guidance in which it took issue 
with the Seventh Circuit's Johnson Controls 
decision and expressly instructed EEOC 
staff to disregard the court's opinion. 
EEOC Policy Guidance on United Auto Workers 
v. Johnson Controls, Inc. Daily Lab. Rep. 
(BNA) No. 18, at D-l (January 26, 1990).
This recent statement takes a clear 
position. In contrast, the Commission's 
earlier guidance, quoted at length by the 
Seventh Circuit, was merely interpretive. 
The 1988 guidance was limited to the 
elaboration of the framework suggested by 
existing judicial interpretations. See 
EEOC Policy Guidance on Reproductive and 
Fetal Hazards Daily Lab. Rep. (BNA) No. 193 
at D-l (October 5, 1988); see also Staff
of House Comm, on Ed. and Labor, 101st 
Cong., 2d Sess., Report on The EEOC, Title 
VII and Workplace Fetal Protection Policies 
in the 1980s (Comm. Print 1990), at 22-23.



28
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." 

EEOC Policy Guidance on Auto Workers v. 

Johnson Controls. Inc. Daily Lab. Rep. 

(BNA) No. 18, at D-l (January 26, 1990).

The Commission found the application of the 

more narrow BFOQ defense "consistent with 

Title VII's structure and purpose." Id.

Employers simply should not be 

permitted to implement policies that 

infringe on the right to fair employment. 

The relaxation of standards allowed by the 

Seventh Circuit is a dangerous precedent - 

with consequences that extend well beyond 

the context of fetal protection policies. 

Employment discrimination law prohibits, 

and should continue to prohibit, the 

wholesale exclusion of a class of people 

from the workplace. Categorical exclusion



29
cannot be justified by the belief that some 

individuals within the class may be 
particularly susceptible to the harmful 

effects of toxic substances. Title VII 

does not allow employers to institute 

policies that sacrifice women's employment 

opportunities instead of cleaning dirty 

workplaces.
III. UNHEALTHY WORKPLACES DISPROPORTION­

ATELY ADVERSELY AFFECT AFRICAN 
AMERICAN WORKERS BECAUSE THEY ARE 
OVERREPRESENTED IN DIRTY INDUSTRIES 
AND JOBS
Unhealthy work environments will 

disproportionately adversely affect the 

health status of African American workers. 

Historic job discrimination and poor 

training and education have combined to 

concentrate African American workers, both 

men and women, in unhealthy industries and 

in the most hazardous jobs. Policies which 

allow employers to exclude women, rather
clean and safe workthan require a



30
environment for all workers, will have 

particularly devastating effects on African 
Americans.

In general, African Americans are 

overrepresented in laundry and dry 

cleaning, tobacco manufacture, fabric 

mills, smelters, hospitals and service 

industries. Within these industries, 

African Americans also tend to be 

concentrated in the dirtiest jobs, such as 

coke ovens, which are usually tended by 

African American steelworkers, and opening, 

picking and sorting operations in textile 
mills.7

Furthermore, migrant farm workers, 

estimated to be 75 percent Chicano and 20 

percent African American, have among the

Pollack and Grozuczak, Reagan, 
Toxics and Minorities. Urban Environment 
Conference c/o United Steelworkers of 
America 2 (1984) (hereinafter cited as
Reagan, Toxics)



31
most dangerous and least protected jobs of

Qall workers. Their exposure to

pesticides, heat, mechanical hazards, noise 

and dust, combine with poverty and poor 

medical care to lower the life expectancy 

of a farmworker to 49 years, more than 20 

years less than the national average.8 9
A. The Overall Health Status of 

African American Workers Is
Affected by Toxic Work
Environments

When compared with whites, the health 

indices of African Americans are alarmingly

8 In a 1969 study of Florida 
agricultural workers exposed to pesticides, 
it was found that African Americans were 
assigned mostly to mixing, formulating, and 
spraying of organophosphate-type 
pesticides, considered to be the most 
hazardous operations. In the study, 
African Americans working in formulating 
had the highest rates of pesticide-induced 
liver and renal (kidney) dysfunction. 
Davis, The Impact of Workplace Health and 
Safety on Black Workers: Assessment and 
Prognosis. 31 Lab. L.J. 723, 729 and n. 31 
(1980) (hereinafter cited as Impact).

9 Reagan, Toxics at 41.



32
poor. Work force environment cannot be 

ignored as a source of the disparity, as 

many studies have shown.

In an article focusing on the impact 

of workplace health and safety on African 

American workers, the author concludes 

that:

10

[I]llness, disease, and death has 
continued to take its toll among 
black workers, due to unchecked 
hazardous working conditions and 
exposure to toxic substances....

There has been a longstanding 
disparity in the health status of African 
Americans when compared to whites. Life 
expectancy at birth for white males in 1982 
was 71.5 years; for African American males, 
it was 64.9 years. U.S. Dept, of Health 
and Human Services, Report of the 
Secretary's Task Force on Black & Minority 
Health. Vol I., at 64 (1985). In 1986, the 
death rate from all causes, per 100,000 
population was: for all races 541.7; for 
white men 679.8; for African American men 
1,028.9; for white women 387.7; for African 
American women 588.2. National Center for 
Health Statistics, U.S. Dep't of Health and 
Human Services, Pub. No. (PHS) 89-1232, 
Health. United States. 1988. at 62-63 
(1989) (hereinafter cited as Health. United 
States)



33
Fifteen percent, of the black 

work force (one to one and one- 
half million) are unable to work 
due to permanent or partial job- 
related disabilities. Black 
workers have a 37 percent greater 
chance than whites of suffering 
an occupational injury or 
illness. Black workers are one 
and one-half times more likely 
than whites to be severely 
disabled from job injuries and 
illness and face a 20 percent 
greater chance than whites of 
dying from job-related injuries 
and illnesses.11
Even with these known statistics and 

public recognition of the poor health 

indices of African Americans, there is no 

concerted effort to identify and remove 

hazardous conditions in the workplace. 

Fetal protection policies further remove 

from public debate the important question 

of the responsibility of federal and state 

governments for ensuring worker safety and 

for requiring employers to provide healthy

11

omitted).
Impact at 724 (footnotes



34
work environments for all workers. The 

impact of unhealthy environments, 

particularly with lead, is felt by men, 

women and children, and its devastating 
effects are felt disproportionately by 

African Americans.

1. Lead poses hazards for 
workers and poor urban 
children

Lead exposure poses serious health 

hazards for workers, as well as for poor, 

urban children. Found in paint, gasoline, 

food and food containers, lead causes 

disabling illness and brain damage, which 

can lead to lowered intelligence, erratic 

behavior and poor classroom performance in 

children. A study of blood lead levels 

found that the mean levels of blood lead 

were higher in African Americans than 

whites across all ages. It also found that 

within the central cities, the mean blood 

lead levels in African American children



35
were significantly higher than in white 

children.12 Eleven percent of all inner- 

city children, 12% of African American 

children and over 18% of poor African 

American children possess dangerous blood 

lead levels.13
Effective regulation, particularly of 

leaded gasoline and leaded paint —  the two 

sources most commonly responsible for 

childhood lead poisoning -- can reduce lead 
exposure dramatically. Programs to 

identify and provide medical help to 

affected children can check and even 

reverse the symptoms of lead poisoning. 

During the 1970s several federally-funded 

programs addressed the problem of exposure 

to lead. Blood levels fell nationally

Mahaffey, et al., National 
Estimates of Blood Lead Levels: United
States. 1976-1980. 307 New Eng.J. of
Medicine 573, 575-76 (1982).

Reagan, Toxics at 6 & n. 5.



36
during the 1970s, although greater 

improvement was seen for whites than for 

African Americans.14 Such progress came to 

a halt in the 1980s.

Lead poisoning is a problem not only 

for urban children but also for adult 

African American workers. Many African 

American workers are employed in battery 

plants and lead smelters. For example, a 

sample of eight battery plants and lead 

smelters found that 52 percent of all blue 

collar jobs were held by non-whites. In 

one particular plant, all 42 of the workers 

- most of whom were African American - had 

lead poisoning.15 Overall, approximately 

835,000 workers in 120 occupations are 

exposed to lead on the job.16

u

15

16

Reagan, Toxics at 7. 

Reagan, Toxics at 11. 

Reagan, Toxics at 11.



37
Additional risks from exposure to lead 

and other dangerous substances are found in 

the homes of lead workers. Studies of 

families of lead, asbestos and beryllium 

workers have found that contamination of 

the home environment through such means as 
soiled work clothes may be associated with 

elevated disease levels in the families of 

the workers.17 Regulation of workplace 

environments can reduce these unnecessary 

risks.
2. Occupational exposures to 

toxic substances can cause 
cancer

Fetal protection policies typically 

have been adopted in male-dominated, blue 

collar industries, without regard to the

Mullings, "Minority Women, Work, 
and Health," in Double Exposure: Women's 
Health Hazards on the Job and At Home 121, 
130 and n. 63 (W. Chavkin, ed. 1984) 
(hereinafter cited as "Minority Women").



38
1 fthealth of exposed male workers. Many

employers have instituted policies which 

exclude women from jobs which require 
exposure to hazardous substances, 

conditions, or physical agents, allegedly
1 Oout of concern for fetal health. In fact, 

some fetal protection policies exclude only 

fertile women from workplace hazards 

despite evidence that the hazard in 
question poses other non-reproductive 

health risks. Many workplace hazards which 

may pose fetal health risks also pose other * 19

See, M. Paul, C. Daniels, and R. 
Rosofsky, Corporate Response to Reproduc­
tive Hazards in the Workplace: Results of 
the Family, Work and Health Survey, 16 
Am.J. of Indus. Medicine 267, 273 (1989) 
(restrictive practices more common among 
firms with male-intensive or evenly- 
proportioned production work forces than 
among those employing predominantly 
females).

1 9  • •See. J. Bertm, "Reproductive 
Hazards in the Workplace" in Reproductive 
Laws for the 1990s: A Briefing Handbook 
207-232 (N. Taub and S. Cohen, eds. 1989) .



39
serious health risks to male and female 

workers.20
For example, occupational cancer may 

account for a significant portion of the 
increase in cancer rates among African 

Americans. The death rate among African 

Americans from lung cancer is about 2 0 

times what it was 40 years ago. African 
Americans have worked with asbestos, 

benzene, coke oven emissions, arsenic, 
vinyl chloride and trichloroethylene, 

together with the 1200 chemicals identified 

by the National Institute for Occupational 

Safety and Health which induced tumors in 

animals. These exposures began to occur 

during the early 1900s large numbers of

20 Staff of House Comm, on Ed. and 
Labor, 101st Cong., 2d Sess., Report on The 
EEOC, Title VII and Workplace Fetal 
Protection Policies in the 1980s, at 8, & 
n. 19 (Comm. Print 1990), ("toxic agents 
that affect reproductive health are likely 
to have other health effects as well.")



40
African Americans migrated from the South 

to urban industrial areas and entered the 

most strenuous and hazardous jobs in steel 

and automotive manufacturing.

A study of over 6,500 rubber workers 

in Ohio found that African American workers 

were concentrated in the more dangerous 

compounding and mixing areas. Twenty- 

seven percent of the African American 

workers in the study population, but only 

three percent of the white workers, had 

worked in this area of the plant.21

A study of coke plant steelworkers 

revealed that 89 percent of nonwhite coke 

plant workers were employed at the coke 

ovens while only 32 percent of white

Impact at 726-28 & n. 19. The 
five-year cancer survival rate for cancer 
of the prostate gland is 73.4% for white 
males and 62.8% for African American males. 
Health. United States at 92.



41
workers were employed in that capacity. A 

cancer study of 59,000 steelworkers, 

comprising 62 percent of all U.S. males

working in basic steel production, found 

twice the expected death rate from
malignant neoplasms among nonwhite workers 

employed in the coke plant.* 23 The study
also found that the excess deaths for

nonwhite coke plant workers was caused by 

cancer of the respiratory system. Twenty- 

five deaths from this cause were observed

22

Impact at 728 & n. 24.
23 "One main area of hazardous 

exposures within the steel industry is the 
coke oven operation. The main function of 
this process is to produce metallurgical 
coke for use at the blast furnaces. 
Another function of this process is to 
recover chemical byproducts during the 
transformation of bituminous coal into 
coke. This process releases dangerous 
gases and dust particles, including the 
carcinogen Benzo (a) Pyrene." Impact, at 
727. In 1986, the death rate from
malignant neoplasms among white males was 
158.8 deaths per 100,000, while among 
African American males it was 229.0. 
Health, United States at 62.



42
among nonwhite steelworkers employed at 

least five years in the coke plant, whereas 

only 7.3 of these cancer deaths would have 

been expected. Notably, the number of 

deaths for whites employed in this area was
24seven, with 8.4 having been expected.

3. Textile workers suffer from 
Brown Lung and respiratory 
diseases

Studies of textile industry workers 

have shown disproportionate rates of 

respiratory disease, from byssinosis (Brown 

Lung), chronic bronchitis, and breathless­
ness among African Americans in high dust 

areas such as opening, picking, and carding 

operations.* 25 More than a half million 

workers are employed in the cotton 

agriculture and yarn and fabric manufacture 

industries. Thirty thousand active and

Impact at 728 & n. 23.
25 Impact at 729 & n. 30.



43
retired workers already suffer from Brown 

Lung, which is caused by exposure to cotton 

dust in inadequately ventilated work 

environments; 800 workers are completely 

disabled from the disease annually.
Cotton dust exposure is a health 

problem for African American workers: an 

average of 25 percent of textile workers, 

and as many as 60 percent in some areas, 

are African Americans.26 27 In 1980, 57 

percent of the 240,000 textile workers were 

women, while 20.7 percent of all operatives 

and 13.8 percent of all sewers and 

stitchers were African American women.2'

26 Reagan Toxics at 3 3 & n. 9.

27 "Minority Women" at 129 & nn. 49,
50.



44
B. The Health Status of African 

American Women Workers Is 
Adversely Affected by The 
Hazardous Work Conditions Found 
in Predominantly Female 
Occupations

Although 17 percent of all service 

occupations were filled by African 

Americans in 1987, African Americans, 

particularly women, filled an overwhelming 

number of the occupations that utilized 

toxic substances in the workplace. African 

Americans comprised over 34 percent of all 

cleaners and servants; 31 percent of all 
nursing aides, orderlies and attendants; 30

percent of maids and housemen; and 23
28percent of all private household workers.

While African American women 

represented 5.4 percent of the total labor 

force in 1981, they constituted 24 percent 

of all nursing aides, 19 percent of all

Bureau of the Census, U.S. Dept, 
of Commerce, Statistical Abstract of the 
United States 1989, at 389.



45

practical nurses, 16 percent of all health 

aides and 16 percent of all other health 

service workers.̂  Studies have shown that

hospital workers have a generally high
. . 30level of occupational diseases.

A study of mortality among non­

professional New York City hospital service 

workers, most of whom were African American 

women, suggests that nonprofessional 

workers may be at elevated risk for certain 

types of cancer. The study found

particularly high rates of liver cancer 

among African American men and breast 

cancer among African American women. While 

unable to ascribe specific cancers to 

specific chemicals, the researchers noted 29 *

29 J. Malveaux, Low Wage Black
Women :____ Occupational____ Descriptions ,
Strategies for Change, unpublished paper 
prepared for the NAACP Legal Defense and 
Educational Fund, Inc. 93 (1984) (herein­
after cited as Low Wage Black Women).

30 "Minority Women" at 127 & n. 36.



46
that hospital workers are constantly 

exposed to ionizing radiation, anesthetic 

gases, benzene, ethylene oxide, formalde­

hyde, and alkylating agents - substances 

that have been linked to cancer. The study 

also questioned whether an excess of liver 

cancer among health service workers is 

associated with exposure to Hepatitis B 

virus, as a consequence of job-related 

activities such as cleaning, handling of 

patients' laundry, and other contact.31

Skin irritation and disease are 

widespread among hospital workers, service 

workers, and industrial workers.32 Skin 
disease is the leading industrial disease 

in the United States today.33 Industrial

"Minority Women" at 127 and n.38.

32 J. Mager Stellman, Women1s Work, 
Women's Health 82 (1977) (hereinafter cited 
as Women's Work).

Women's Work at 121.



47
chemicals and cleaning solvents used by 

service workers can dissolve the wax in the 

skin, resulting in different degrees of 

skin irritations, or dermatitis. A 

comparatively large number of industrial 

chemicals can lead to the formation of skin 

growths, which may be either cancerous or 

benign.34 One survey of patients with 

occupational dermatitis found that hospital 

work and cleaning accounted for 55 percent 

of all cases.35
Domestic workers use home-cleaning 

products daily, yet there is almost no 

product safety information available about 

them. In fact, the average household has 

as many as 250 chemicals which, if 

ingested, could send a child to the

Women1s Work at 122-124.
35 Women 1s Work at 124.



48
hospital.36 Insecticides also pose a health 

hazard to domestic workers.37 A 1981 U.S. 

National Research Council report suggests 

that better ways must be devised to reduce 

exposure to indoor contaminants. This is 

especially crucial for domestic workers who 

face long-term, low-level exposure to 

potential cancer-causing substances, or to 

contaminants that may cause respiratory
38infection and cardiovascular disease.

Most low-wage African American women 

are found in service and operative jobs 

that put them at particular risk. In 1981, 

one in seven African American women worked 

as an operative. African American women

36 Rosenberg, "The Home is the 
Workplace" in Double Exposure 229 (W.
Chavkin, ed. 1984) (hereinafter cited as 
"The Home is the Workplace").

"The Home is the Workplace" at
233 .

38

234-35.
"The Home is the Workplace" at



49
represented 31 percent of all clothing

ironers and pressers and 20 percent of
39laundry and dry cleaning operators. Once 

again, African American workers tend to be 
concentrated in the dirtiest jobs within an 

industry. A study of laundry and

drycleaning workers found that African 
American male and female death rates, from 

all causes, doubled those of white workers. 

In addition, the study showed that African 

Americans had higher death rates from

cancer of the liver, lung, cervix, uterus
, , . 40and skin.

Thirty percent of African American 

women workers are clerical workers.41 

Increasingly, young African American women 

are avoiding private household and service

Low Wage Black Women at 95. 

The Impact at 728 & n. 26.
41 Low Wage Black Women at 77.



50
jobs - areas that have employed large 

numbers of older African American women -
/ pand moving into clerical jobs.

The hazards of clerical work include 

muscular and circulatory disorders, 

fatigue, and exposure to dangerous 

chemicals such as benzene, toluene, and 

other organic solvents.43
Clerical workers also appear to be 

vulnerable to stress-related diseases. A 

study which found increased risk of 

coronary heart disease among clerical 

workers, examined the relationship of 
employment status and employment-related 

behaviors. The results of the study appear 

to show that an increased risk of coronary 

heart disease is related to features of the

Women's Bureau, U.S. Dep1t of 
Labor, Bulletin 298, Time of Change: 1983 
Handbook on Women Workers 63 (1983) (here­
inafter cited as Time of Change).

43 "Minority Women" at 128.



51
work environment, including lack of control 

and autonomy, nonsupportive relationships 

and limited physical mobility.44 African 

Americans tend to be overrepresented among 

the lowest level of clerical workers —  

file clerks, clerical assistants, typists, 

and telephone clerks45 —  jobs that are 
often subject to speed-up, isolation and 

lack of job mobility. 6
In sum, any policies which permit 

employers to avoid their duty to provide 

safe and clean working environments for all 

workers will have doubly devastating 

effects on African American workers who are 

disproportionately represented in the 

dirtiest jobs and the most hazardous 

industries. Health indices of African

"Minority Women" at 128.

Low Wage Black Women at 96.
46 "Minority Women" at 128.



52
Americans will continue to lag behind white 

Americans if employers are allowed to evade 

their responsibility for the toxic work 

environments that help to cause poor health 

outcomes.

It is unconscionable for OSHA and the 

medical research community and employers to 

focus on genetics and the behavioral and 

social characteristics of African Americans 

which may contribute to poor health status 

without also focusing on occupational 

exposures to toxic substances. Regulatory 

agencies have abdicated their responsibi­

lity for protecting the lives and health of 

Americans, especially African American 

workers and families.47 Without more 

balanced analysis, no significant 

improvement in the health indices of 

African Americans should be expected.

See, Impact at 73 0; Reagan, 
Toxics at 57 and Preface.



53

IV. EXCLUDING ALL POTENTIALLY PREGNANT 
WOMEN FROM CERTAIN BETTER-PAYING JOBS 
WILL PLACE AFRICAN AMERICAN FAMILIES 
AT GREATER RISK OF POVERTY AND POOR 
HEALTH
As Judge Easterbrook cogently notes in 

his dissent in Johnson Controls, "rigorous 

implementation of fetal protection policies 

could close more than 20 million jobs to 

women...." UAW v. Johnson Controls, 88 6 

F . 2d 871, 914 and n.7 (7th Cir. 1989).

African American women, who are already 

overrepresented in lower-paying industries 

and occupations, cannot afford to be 

excluded from participating in any 

occupation with growth potential and higher 

pay.
A. Women's Earnings Support Their 

Families

The wages of African American women 

contribute significantly to the earnings 

level of African American families. The 

median African American family income in



54
1985 was $24,570 for a married couple 

family. Median family income depended on 

whether the woman in the marriage worked: 

$30,502, if she was in the labor force and 

$15,129 if she was not. In contrast, 

whites had a median income of $36,992 if 
the wife worked, and $25,307 if the wife

/ qdid not work.

Among white, African American and 

Hispanic children, African American 
children were the most likely to have a 

mother who worked full time throughout the 

year, while white children were the most 

likely to have a mother who was employed 

less than full time, full year.* 49 Seventy-

H. Pipes McAdoo, Changes in the 
Formation and Structure of Black Families: 
The Impact on Black Women 15 (Wellesley 
College Center for Research on Women, 
Working Paper No. 182, 1988) (hereinafter 
cited as Pipes McAdoo, Changes)

49 Select Comm, on Children, Youth 
and Families, U.S. House of Representa­
tives, 100th Cong., 1st Sess. , U.S.



55
five percent of African American mothers 

with children under age 18 were in the 

labor force, compared to only 60 percent of 

white mothers with children under 18. 

Among women maintaining families alone, 62 

percent of African American mothers with 

children under 18 were in the labor force, 

compared to 73 percent of white single 

mothers.50
The poverty rate for African Americans 

is abysmally high: 12.2 percent for married 

families; 22.9 percent for male house­

holders; and a phenomenal 50.5 percent for 

female householders with no male present.51 

Most African American single mothers are in 

the work force but are unable to earn

Children and Their Families:____ Current
Conditions and Recent Trends, 1987. at 13 
(1987) (hereinafter cited as U. S ■ 
Children).

50 U.S. Children at 20.
51 H. Pipes McAdoo, Changes at 15.



sufficient wages to raise their family 

income level above poverty. In 1984, of 

3,740,000 African American female-headed 

families, 57 percent had mothers in the 

labor force; 49% of these working mothers 

earned below $20,000; 21 percent earned 

below $7,000.* 52

Women who have principal responsi­

bility for maintaining their own families 

are generally poor. They are more likely 

than other families to have only one 

earner, and to have preschool children who 

restrict labor force activity.53 Whether

56

Comparable figures for white
female-headed families: 68 percent had 
mothers in the labor force; 52 percent 
earned below $20,000 and 16 percent earned 
below $7,000. Children's Defense Fund, 
Black and White Children in America: Key
Facts 122 (1985) (hereinafter cited as Key 
Facts).

53 Time of Change at 25.



57

African American or white, young mothers 

under age 2 5 are very likely to be poor.54

African American women, on average, 

earn 56 cents for every dollar earned by 

white men.55 African American women with 

college degrees earn a median income less 
than the median income of white males with 

eighth grade education.56 Wage inequities 

particularly burden African American women 

who tend to be clustered in narrow bands of 

low-skilled jobs in occupational categories 

that are predominantly filled with women. 

It has been estimated that in 1981, more 
than 70 percent of all working African

Key Facts at 53.

B. Thornton Dill, L. Weber 
Cannon, R. Vanneman, Pay Equity: An Issue 
of Race, Ethnicity and Sex 1 (National 
Committee on Pay Equity 1987) .

56 In 1982, college educated African 
American women had a median income of 
$16,183, while white males with an eighth 
grade education had a median income of 
$16,773. Key Facts at 62.



58
American women were employed in low-wage 

service, clerical, private household, 

retail sales and nondurable goods 

operatives jobs.57

B. Most Low-Wage Jobs Lack Employer- 
Provided Health Coverage

Most low-wage jobs in which African 

American women are overrepresented do not 

offer employer-provided benefit programs, 

including pensions and health coverage, 

particularly for dependent children.

Health care financing for Americans under 
age 65 is principally provided by 

employers. However, since 1980, employer- 

provided insurance for both catastrophic 

and routine care has become increasingly 

unavailable. The number of uninsured * 58

Low Wage Black Women at 12.
58 See, U.S. Commission on Civil 

Rights, Health Insurance: Coverage and
Employment Opportunities for Minorities and 
Women, Clearinghouse Publication 72 
(1982) .



59
Americans rose by one-fifth, from 30.9

, . . 59million in 1980 to 37.1 million m  1987.
By 1986, one out of three children 

living in families in which at least one 

family member was employed had no coverage 

under an employer plan. By contrast, about 

half (50.7 percent) of African American 

children in such families were not 

covered.60 Among children living in

moderate-income families (those with 

incomes between 200 and 400 percent of the 

federal poverty level), the racial 
disparity is even more alarming. While 

80.9 percent of white children in working 

moderate-income families had employer 

coverage in 1986, only 69.6 percent of

Children's Defense Fund, A Vision 
for America's Future 8 (1989) (hereinafter 
cited as A Vision).

60 A Vision at 9.



60

comparably situated African American
61children were similarly protected.

Having no health insurance places the 

existing children of African American 

working mothers in immediate peril. In 

fact, this lack of coverage and access to 

care may be more harmful than the potential 
hazard to uncontemplated future offspring 

posed by working in a job which may involve 

exposure to hazardous substances. Employers 

implementing fetal protection policies are 

trading off health risks and placing the 

health of existing children - and the 

stability of their families - in jeopardy.

One measurement of the health of a 

nation is its infant mortality rate. The 

United States' infant mortality rate was 

10.4 deaths per 1,000 live births in 1986, 

placing it eighteenth in the world. The

61 A Vision at 9.



61
rate among African American infants was 

18.0 deaths per 1,000 live births, which on 

its own, would rank the United States 

twenty-eighth in the world.62
The percentage of births to women who 

received prenatal care early in pregnancy 

has dropped three times in the 1980s —  

most recently between 1985 and 1986, when 

it fell from 76.2 percent to 75.9 percent. 

If the very slow overall rate of progress 

made during the 1978-1986 period continues 

until the year 2000, one out of every five 

births (and more than one-third of African 

American births) will be to a woman who 

failed to receive this crucial care early 

in pregnancy.63 Children born to women who 

fail to receive prenatal care are three 

times more likely to die in infancy than

62 A Vision at 4.
63 A Vision at 4.



62
those whose mothers receive comprehensive 

care. Babies whose mothers receive

inadequate care also are at greater risk of 

being born at low birthweight, a condition 

that increases the likelihood of permanent 

lifelong disabilities.64
Unimpeded equal employment oppor­

tunities, particularly for jobs with 

adequate wages, are essential for African 

American women and their families. Higher 

paying jobs in manufacturing industries are 

disappearing. Six of every seven new jobs 
created between 1979 and 1987 were in the 

retail trade or service industries 

sectors with the lowest average wage 

levels. Industries that have been

shrinking since 1979 —  such as mining and 

manufacturing —  paid 42 percent more

64 A Vision at 12.



63
annually than those that were expanding

z cduring the same period.
Policies which restrict access to 

better employment for women will have 

devastating effects on African American 

women, a group of Americans who are already 

hampered by intentional and covert race 
discrimination in employment, as well as 

inadequate education and training. African 

American women need full access to 
employment that provides a living wage, 

health and pension benefits, and family 

security and stability.

CONCLUSION
This case implicates two critical 

issues. First, the decision of the lower 

court jeopardizes long-standing principles 

of employment discrimination law. Distinct 

judicial approaches to the analyses of

65 A Vision at 18.



64

subtle and overt discrimination have been 
crucial to the effectiveness of Title VII 

in reducing the many forms of discrimi­

nation which continue to plague the 

American workplace. To blur these 

distinctions is to weaken the ability of 

Title VII to protect against even the most 

blatant forms of employment discrimination, 

such as the categorical exclusion of a 

class from employment opportunities.

Second, this case raises issues of 

employer responsibility for the maintenance 

of healthy work environments. As a 

consequence of disadvantage and 

discrimination, African American workers 

are overrepresented in dirty industries and 

jobs. Employment policies which focus on 

the danger of workplace hazards to only a 

particular class of people ignore the 

larger dimension of the problem and



65

threaten the health status of those workers 

who remain on the job.
For the reasons stated above, the 

judgment of the Seventh Circuit should be 

reversed.
Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
RONALD L. ELLIS*
MARIANNE ENGELMAN LADO 
CHARLOTTE RUTHERFORD 

99 Hudson Street 
16th Floor 
New York, NY 10013 
(212) 219-1900

Counsel for Amici Curiae

*Counsel of Record

May 31, 1990