A Real Jobs Program for Women : A decisive Supreme Court ruling on so-called fetal protection efforts
When all the excuses were stripped away, the policy of the national battery manufacturer came down to one faulty assumption: that women either cannot or should not make their own decisions about where they work or what sort of work they do.
The U.S. Supreme Court Wednesday soundly rejected that argument. By invalidating a so-called fetal protection policy, the high court has told American women that the protection they really need is from intrusive, discriminatory and unconstitutional job restrictions.
At issue was the fetal protection policy of Johnson Controls Inc., a Milwaukee-based firm that manufactures batteries. The process of making batteries creates airborne lead. Citing medical studies that have shown that exposure to lead poses a substantial risk to a fetus, the company in 1982 leaped to the absurd conclusion that any woman physically capable of having a child could not work in any job that might expose her to lead. The company banned fertile women from making batteries or any other high-lead exposure job unless she presented medical evidence of sterility. The policy just also happened to have the effect of automatically barring women from the company’s higher-paying jobs. The state Court of Appeal already had wisely struck down Johnson Controls’ policy last year, so that the discriminatory policy was no longer in effect at the company’s Fullerton plant.
But a fetal protection policy was still in effect in other regions of the country--not only at Johnson Controls Inc., but at several other major corporations. This case thus became one of the most- watched sex discrimination cases in more than 25 years.
Federal law allows for job restrictions only when gender or pregnancy “actually interferes with the employee’s ability to perform the job,” the court said. “It is no more appropriate for the courts than it is for individual employers to decide whether a woman’s reproductive role is more important to herself and her family than her economic role. Congress has left this choice to the woman as hers to make,” said the majority court opinion authored by Justice Harry Blackmun and joined by Sandra Day O’Connor, Thurgood Marshall, John Paul Stevens and the most recently appointed justice, David Souter.
Lead exposure can cause a host of serious fetal problems, including retardation. Some studies also suggest that men could suffer reproductive harm by lowering sperm counts and causing genetic damage that could produce birth defects in offspring; all the more reason a one-sided policy was wrong.
The company’s previous policy of informing workers of the risk--but leaving the decision to them--was more appropriate. Blocking women from equal job opportunities, even in the name of “protection,” is still discrimination.
