“Fetal Protection”: No Thanks

Thanks to a state Court of Appeal decision, California women of childbearing age need not worry about employers putting certain types of jobs out of their reach. As incredible as it may seem, a “fetal protection” restriction had already been imposed on female employees of a Milwaukee-based firm. A 35-year-old Anaheim Hills woman who applied for a job at the company’s plant in Fullerton said that the policy was discriminatory. The court unanimously agreed.

At issue was the so-called “fetal protection” policy of Johnson Controls Inc., which manufactures automotive batteries. The company banned women from working in areas where the air had a high content of lead. Citing studies that exposure to lead poses a substantial risk to a fetus, the company then leaped to the absurd conclusion that any woman physically capable of having a child could not work in any job that could expose her to lead. Consequently, the policy automatically barred women from the higher-paying jobs.

Queen E. Foster, the plaintiff in the case, applied for a battery-assembling job at Johnson Controls that would have paid $9 an hour. In spite of Foster’s assertion that she had no intention of getting pregnant, the company told her that in order to be hired she had to provide medical evidence that she was sterile.

The company argued that its policy was aimed at protecting unborn children; the effect, of course, is that the policy “protected” women from higher-paying jobs. As Associate Justice Robert O. Staniforth pointed out in the court decision, “The company’s policy is to exclude women, not because they are pregnant but because they are fertile. . . . It is discrimination based on categorical, long-ago-discarded assumptions about the ability of women to make reasoned, informed choices.”

The state Court of Appeal decision runs contrary to an earlier U.S. 7th Circuit Court of Appeals decision in Chicago that upheld Johnson Inc.’s “fetal protection policy.” The plaintiffs in that case, the United Auto Workers, have asked the U.S. Supreme Court to review that decision. By taking the opposite tack, the state Court of Appeal affirmed that, at least in California, locking women out of equal opportunities, even in the name of “protection,” is still discrimination.