State High Court Rejects Job Bias to Protect Women

The state Supreme Court on Thursday rejected a challenge to a trailblazing appellate decision that struck down a Fullerton firm’s “fetal protection” hiring policy as discriminatory against women.

The action came in a test case that has been widely watched because it posed a conflict between an employer’s desire to limit workplace hazards and state civil rights laws aimed at curbing employment bias.

Under the policy at issue, women of child-bearing age were barred from working in certain areas of a battery manufacturing plant because of the firm’s concern that their exposure to toxic lead could cause birth defects.

In the first such ruling of its kind in the nation, a state Court of Appeal in Santa Ana held last February that the restriction violated state fair employment laws.

In a brief order, the state high court on Thursday refused to hear the company’s appeal of the February decision. Four votes are required for such review, but none were forthcoming from the seven justices. As a result, the appellate decision becomes binding on trial courts throughout California.

“This is fabulous,” said Michelle A. Reinglass, secretary of the Orange County Bar Assn. “It’s a nice sign that (the justices) are going along the lines of supporting employee’s rights. If that fetal protection policy had been upheld, it would have meant that, at their whim, (employers) could engage in adverse, arbitrary actions against women in the workplace.”

The case was brought by Queen Elizabeth Foster, 35, of Anaheim Hills, who challenged the fetal-protection policy at a Fullerton facility operated by Johnson Controls Inc. of Milwaukee.

Foster said she applied for a $9-an-hour job operating a battery-assembly machine but was told she would be hired only if she provided medical documentation she was sterile.

The high court’s action came as something of a surprise. It had been anticipated by lawyers in the case that the court might set aside the appellate decision until the U.S. Supreme Court acts in a Wisconsin case raising a similar issue under federal fair employment law. While the federal high court decision would not be binding on California law, it might have proved persuasive to the state Supreme Court, which often looks to its federal counterpart for guidance.

An attorney for the state Fair Employment and Housing Commission noted that in the wake of Thursday’s action, even if the U.S. Supreme Court eventually allows such policies under federal law, California--like other states that have passed laws covering the subject--will be able to bar the restrictions as discriminatory against women.

“California law stands independent of federal law in this instance,” said state Deputy Atty. Gen. Manuel M. Medeiros. “States are free to grant their workers more protection against discrimination than required by federal law.”

Catherine Ruckleshaus of the Employment Law Center, which represented the woman employee who challenged the policy, called the action “a landmark victory” for California workers.

“This is the first ruling in the country that recognized that excluding women from such job opportunities in the name of protecting potential future offspring constitutes illegal sex discrimination,” she said.

Gerald A. Griffin, a Los Angeles attorney representing Johnson Controls, expressed surprise and disappointment with the action. “I would have thought the state Supreme Court would have been as interested in grappling with this important question as the U.S. Supreme Court,” said Griffin. “A case with such significant issues should have been heard.”

Before 1982, Johnson Controls had allowed women to take such jobs, provided they signed documents saying they were aware of the risks. The firm, defending the new policy, cited medical research showing that unborn children need more protection from lead than adults and that exposure to the substance can permanently injure the fetus’s developing brain and nervous system.

The state fair employment commission, acting on a complaint filed by Foster, ruled in 1987 that the policy represented illegal sex discrimination. Any risk to the unborn child should be left to the “sound discretion” of the worker, the commission said.

A year later, an Orange County Superior Court judge overturned that decision, finding the restrictions permissible under state law as a means of protecting fetal health from industrial hazards.

Foster’s lawyers appealed, contending the policy unfairly singled out women of child-bearing age and that there was medical evidence men and their offspring could also be at risk.

The state Court of Appeal upheld Foster and the commission, finding the policy was based on what it called “unfounded, unscientific stereotypic notions of women.”

Retired Appellate Justice Robert O. Staniforth, in an expansive attack on sex discrimination, said the across-the-board exclusion of women, solely on the basis of their fertility, unfairly prevented women from making their own “reasoned, informed choices” about workplace hazards.

“We are in an era of choice,” Staniforth, participating by temporary assignment, wrote in an opinion joined by Appellate Justices Thomas F. Crosby and Sheila Sonenshine. “A woman is not required to be a Victorian brood mare. She may, with constitutional basis, prefer not to have children.”

In other action Thursday, the justices:

Unanimously upheld the death penalty for the slayer of a Visalia woman in a self-described “military mission” by three men to steal weapons from her son’s gun collection. The court rejected an appeal by Ryan Michael Marshall, who was convicted of the execution-style murder of Sylva Teague in her rural home in January, 1985. Marshall, 18 at the time, and two others allegedly sought guns and ammunition intending to become mercenaries and join in a fight against communism in Myanmar, formerly Burma.

Agreed to decide whether the state of California improperly shifted the costs of indigent health care to the counties and therefore must provide up to $400 million annually in additional funding for such aid.

Refused to block the proposed “nickel a drink” ballot initiative, which would tax beer, wine and liquor to provide funds to combat alcoholism.