Court to Rule on Ban on Women in Perilous Jobs

In a case that could affect millions of women, the Supreme Court said Monday that it will decide whether a company may ban women of child-bearing age from working in its plants because of potential danger to a fetus should the woman become pregnant.

In addition, the justices agreed to decide when a school district may end mandatory desegregation, setting the stage for a ruling that could mark the end of the era of court-ordered busing.

These two cases were among six that the justices agreed to hear during the fall.

In the case involving “fetal protection” policies in the workplace, women’s rights advocates contend that, unless the high court stops the practice, as many as 20 million women could be denied a chance to compete for high-paying but potentially dangerous jobs. In hospitals, laboratories, manufacturing plants or offices, women can be exposed to chemicals or radiation that--in the view of some experts--can endanger a fetus.

A federal appeals court in Chicago stunned women’s rights lawyers last September by upholding a manufacturer’s policy against letting women of child-bearing years work in its car battery plants. Because the plants contain lead, which can grievously harm a fetus, and because women can become pregnant unexpectedly, the company chose to exclude all of them. The only exceptions were for women who furnished medical certification that they were infertile.

Several women union members challenged the policy as a violation of federal laws banning discrimination based on gender or pregnancy. They contended that it is up to the women, not the company, to decide whether they would work in a potentially dangerous environment. However, their attorneys said they might be willing to accept a policy that banned only pregnant women from dangerous jobs.

A federal judge in Milwaukee had upheld the company policy on a pretrial motion in 1988. His decision was affirmed by the U.S. 7th Circuit Court of Appeals in Chicago on a 7-4 vote.

The appeals court opinion was unusual on at least two counts.

Federal anti-discrimination laws govern disputes between employers and employees, but the Chicago court said that, in this case, it had to “balance the interests of the employer, the employee and the unborn child.” The four dissenters questioned whether the law included a concern for the fetus.

Secondly, a company that adopts a clearly discriminatory policy bears the burden of proving it is necessary and that there are no reasonable alternatives. But, in this case, the Chicago court placed on the women the burden of proving that the policy was unnecessary and unreasonable.

In dissent, Judge Frank Easterbrook, a prominent Ronald Reagan appointee to the bench, called this “the most important sex-discrimination case in any court since 1964, when Congress enacted Title VII,” the ban on race and sex discrimination in the workplace. The appeals court ruling “would allow employers to consign women to ‘women’s work’ while reserving better-paying jobs but more hazardous jobs for men,” he said.

This is exactly what the 1964 law and the Pregnancy Discrimination Act of 1978 were designed to prevent, he said.

The employer in the case, Johnson Controls Co., based in Milwaukee, is the largest maker of auto batteries. In 1982, it adopted its “fetal protection policy” after concluding that it could not rid its plants of high lead levels.

“There were no other effective means to ensure that unborn children were protected. It would have been irresponsible to do anything else,” said Stanley S. Jaspan, a company lawyer. Other major manufacturers, including General Motors, B.F. Goodrich and Allied Chemical, have adopted similar policies, he noted.

In appealing to the high court, lawyers for the women and the United Auto Workers said that federal law against discrimination simply does not permit an exclusionary policy based on sex (International Union vs. Johnson Controls, 89-1215).

At this point, the Chicago court’s ruling is the law only in the states of Illinois, Indiana and Wisconsin. In January, the U.S. Equal Employment Opportunity Commission issued a bulletin saying it disagreed with the Chicago court.

In California, a state appeals court in Orange County ruled on Feb. 28 that the “fetal protection policy” implemented by Johnson Controls is illegal under the state’s fair employment law.

The state court suit arose at the Johnson Controls plant in Fullerton.

“The company’s policy is to exclude women, not because they are pregnant but because they are fertile,” the state appeals court said in striking down the policy.

Company lawyers plan to appeal that ruling to the state Supreme Court. If the state high court were to uphold the Orange County appeals court decision, a “fetal protection policy” would be illegal in California, regardless of how the Supreme Court rules.

In the busing case, the court will return to an issue that dominated its attention during the early 1970s.

In 1971, the justices ruled unanimously that, once a school district has been convicted of operating a “dual” system by race, a judge may order cross-town busing as a remedy. But the justices have never said when, if ever, court-ordered busing would end.

In 1972, the Oklahoma City school district was ordered to desegregate by busing students in all grades. But, five years later, the federal judge who imposed this plan declared the school system to be “unitary,” as opposed to dual, and turned its affairs back to the school board. In 1984, the board decided to end busing for children in grades 1 through 4. As a result, 11 inner-city elementary schools became nearly all black once again.

Last year, a federal appeals court in Denver said that the district must resume busing in the elementary grades. The Oklahoma school board appealed to the Supreme Court.

Several hundred school districts nationwide have operated for years under federal court supervision and could be affected by a Supreme Court ruling in the case (Board of Education of Oklahoma City vs. Dowell, 89-1080).

(The Los Angeles Unified School District underwent nearly three years of state court-ordered mandatory busing that ended in 1981. It now offers a voluntary integration program, including magnet schools and a transfer policy that allows students from racially isolated neighborhoods to attend the school of their choice.)

Without comment, the court on Monday let stand a ruling that a U.S. law banning racial discrimination does not protect non-citizens.

This case arose when a native of India was turned down for a VISA card by a Dallas bank because he was not a U.S. citizen.

The U.S. 5th Circuit Court of Appeals in New Orleans, on a 7-6 vote, said the Civil Rights Act of 1866 does not cover private discrimination against non-citizens. Lawyers for the Mexican American Legal Defense and Education Fund in Los Angeles appealed the case to the high court, but only two justices voted to hear it (Bhandari vs. First National Bank of Commerce, 89-1258).