Justices Question Fetal-Protection Job Policies

The Supreme Court reacted skeptically Wednesday to a company’s claim that it can exclude all young women from its battery plants to protect their potential offspring.

“It seems to me you are not coming to grips with the Pregnancy Discrimination Act,” Justice Sandra Day O’Connor told an attorney for the Johnson Controls Co.

Justice Antonin Scalia chimed in, saying that Johnson Controls was turning the anti-discrimination law “into a dead letter, a farce.”

They referred to a 1978 law in which Congress banned discrimination on the basis of pregnancy. Johnson Controls, the nation’s largest maker of car batteries, says that high levels of lead in its plants have forced it to exclude all potentially fertile women.

That policy, however, is not in effect in the company’s Fullerton plant, because a California appeals court last February struck it down as a “blatant, overt violation” of state anti-discrimination laws.

Justice O’Connor hinted that the policy may also violate the 1978 federal law, saying: “Your policy applies to women who are not pregnant and can perform the work.”

In the past, companies contended that they were discriminating against pregnant women only in the interest of their children, Scalia said. But he added that federal law now forbids such discrimination.

Last year, a federal appeals court in Chicago shocked women’s rights advocates by upholding the company’s “fetal-protection policy” without a trial. The judges did not require the company to prove that any children had suffered harm or show why women in their 50s also were excluded.

Women’s rights lawyers said that this decision, unless overturned by the high court, could threaten millions of women whose jobs--whether in hospitals, offices or manufacturing sites-- could expose a fetus to hazards.

But the company says that lead is so dangerous to a developing child and so difficult to remove from the air that women can be excluded from its facilities to protect children.

Lead “poisons the fetus and causes permanent brain damage,” said Milwaukee attorney Stanley Jaspan, representing the company.

“How often does this happen?” asked Justice John Paul Stevens, noting that the court record did not show proof that any child had been harmed by a mother’s employment at a battery plant.

Even if the justices agree among themselves that the appeals court ruling must be reversed, they could be divided over how to do it.

Marsha Berzon, a San Francisco lawyer representing the women workers, said that these female employees, not the company, should decide whether they must leave their jobs to protect their offspring.

In a friend-of-the-court brief, the Justice Department agreed that the appeals court ruling must be reversed, but it said that the case should be sent back for a trial. There, the company could be given a chance to prove that it cannot operate safely and reasonably with fertile women in its battery plants.

A ruling in the case (United Auto Workers vs. Johnson Controls, 89-1215) is not likely for several months.