Ominous Message for Women

A woman should not be forced to choose between her ability to have children and her job. Yet a recent federal district appeals court decision basically directs her to do just that.

In a sweeping ruling that could have major ramifications for how employers hire and promote women, the U.S. 7th Circuit Court of Appeals decided 7-4 in favor of a Milwaukee company that bans all fertile women from certain jobs. At issue was Johnson Controls Inc.’s “fetal protection policy.”

The company formulated the policy after citing medical studies that indicated that high levels of lead, (known to cause learning- disability problems in children), pose a substantial risk to a fetus. Since the process of making batteries at the company creates airborne lead, Johnson officials, in a mammoth leap of logic, refuse to employ any woman to make batteries or perform other high-lead exposure jobs unless she presents medical evidence of sterility. One of the four judges who strongly dissented in the ruling called the case “likely the most important sex discrimination case in any court since 1964.”

While this decision is binding only in Illinois, Wisconsin and Indiana, it carries deeply disturbing implications that could erroneously influence national thinking about women and occupational hazards. What about the female bus driver--must she be barred because of noxious fumes spewing around her, or because of the potential for auto accidents? And given the studies that show the danger of smoke to a fetus, must any woman with the potential for getting pregnant be barred from an office where employees smoke?

While the company did not cite fear of lawsuits as a reason for the policy, fear of litigation no doubt played a role in the design of the fetal protection policy. But in oral arguments, Johnson attorneys defended the policy by saying that the company was morally required to protect children from their parents’ mistakes. That echoes the arguments made in an 1908 court ruling that maternal functions made women unsuitable for long working hours. As dissenting Judge Frank H. Easterbrook wrote, dangers decried in the 1908 case are perceived today “as chimerical, excuses for blockading women as effective competitors of men in the labor force . . . (it) ‘protected’ women out of their jobs . . . “

There is no question that exposure to lead--above certain levels--is hazardous. The exact stage at which lead exposure poses a substantial risk to a fetus is still being debated in the medical community. From the air we breathe to the machines we use in the work place, potential hazards to a fetus abound. If the court majority’s ruling prevails, employers could consign women to one class of jobs, typically lower-paying, based strictly on the possibility that they could become mothers. The company’s previous policy that informed workers of potential risk but allowed them to decide made sense.

Who really benefits under a “fetal protection policy”? If you compare a pregnant unemployed or underemployed woman with no health benefits, asked Judge Richard D. Cudahy, to one who is “exposed to an indeterminate lead risk but well fed, housed and doctored . . . Whose fetus is at greater risk? Whose decision is this to make?”

The long-term answer to such questions lies in efforts to rid the workplace of environmental hazards that harm both women and men. In the short term, employers must find less discriminatory alternatives than the extreme and inflexible policy upheld by the appeals court.