Because of Sex by Gillian Thomas

Author:Gillian Thomas
Language: eng
Format: epub
ISBN: 9781466878976
Publisher: St. Martin’s Press
Published: 2016-01-25T16:00:00+00:00

The evidence presented concerning the lingering effects of lead in a woman’s body, combined with the magnitude of medical difficulties in detecting and diagnosing early pregnancy, lead us to conclude that an extension of this policy to all fertile women is proper and reasonably necessary to further the industrial safety concern of preventing the unborn child’s exposure to lead.58

The majority dismissed the notion that it was up to the individual woman, not the company, to decide what level of “industrial safety” she could tolerate. The court analogized to Dothard, where the Supreme Court had found maleness a BFOQ for prison guards in “contact” positions. The Court had reasoned that third parties—the inmate population—could be endangered if a female guard were assaulted, so the decision to assume the job’s risks was not the guard’s alone to make. Substitute fetuses for prisoners, said the Seventh Circuit, and the same result follows.

The four judges who disagreed with the majority filed three dissenting opinions. All of them rejected the notion that Johnson Controls’ policy could be called sex-neutral or justified by business necessity. The company’s policy clearly discriminated against women, they said, and could be justified only under the stringent BFOQ standard. (The UAW was especially heartened that one of the dissenters, Judge Posner—an influential conservative voice—thought the case should go back to Judge Warren for a trial, where all the relevant scientific evidence could be explored fully.)

It was the dissent by Judge Frank Easterbrook that made Joan Bertin say, “Finally, someone has gotten this right!” Easterbrook declared the case “likely the most important sex-discrimination case in any court” since Title VII’s enactment, noting that if the majority’s opinion were to be adopted by courts nationwide, “by one estimate 20 million industrial jobs could be closed to women, for many substances in addition to lead pose fetal risks.”59

Easterbrook and Judge Flaum, who joined his opinion, were the only two dissenters who didn’t think a trial was necessary, because a fetal protection policy could never qualify for the BFOQ exception, no matter what scientific evidence was put forward. The reason, explained Easterbrook, was the false underlying premise that fetal protection was “reasonably necessary to the normal operation” of Johnson Controls’ battery-making business. He was especially scornful of the company’s claim that it was “morally required to protect children from their parents’ mistakes.”60 That justification, Easterbrook scoffed, was “redolent of Muller v. Oregon,” the infamous Supreme Court maximum work hours case. “Statutes of the sort sustained in Muller, supported by the justifications advanced in Muller,” scoffed Easterbrook, “are museum pieces, reminders of wrong turns in the law.”61

* * *

When the UAW filed its petition in January 1990 seeking Supreme Court review, the time was ripe for the high court to weigh in. At that point, four courts of appeals had ruled on fetal protection policies, with wildly divergent outcomes. The Posner and Easterbrook dissents were especially noteworthy, coming from two such stalwart conservative voices who couldn’t even agree with one another, let alone with their seven colleagues in the majority.

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