Court Rejects Limiting Jobs to Protect Fetuses

In a decision hailed by feminists, the Supreme Court ruled Wednesday that employers may not limit jobs for women to protect the health of a fetus.

Employers must try to make the workplace safe and should warn workers--male and female--of possible hazards. But they may not adopt “fetal protection” policies that treat women differently from men simply because they may have the capacity to bear children, the court said on a 6-3 vote.

“Decisions about the welfare of future children must be left to the parents who conceive, bear, support and raise them, rather than to the employers who hire those parents,” Justice Harry A. Blackmun wrote for the court.

Once a woman has been warned of possible hazards, the decision on whether to take such a job is “hers to make,” he said. He added that “concern for a woman’s existing or potential offspring historically has been the excuse for denying women equal employment opportunities.”

Civil rights advocates said that they were surprised and delighted by the court’s strong affirmation of women’s rights in the workplace.

“The solution to hazardous workplaces is to eliminate the hazard, not the women employees,” Marcia Greenberger of the National Women’s Law Center said.

Had the high court upheld “fetal protection” policies, rights advocates feared that as many as 20 million industrial jobs could have been closed to women. Further, women could have faced restrictions even in such traditional jobs as lab technicians, flight attendants or working with computers in offices if new scientific evidence showed potential for harm to a fetus, they said.

At least 15 major corporations, including General Motors, Monsanto and Du Pont, have adopted “fetal protection” policies in some of their plants. California already prohibits such policies.

Manufacturers, reacting to Wednesday’s decision, said they feared new lawsuits over deformed or brain-damaged children. Groups opposed to abortion rights said they were disappointed that the court majority ignored the welfare of the unborn child.

The decision throws out a policy adopted by Johnson Controls Inc., the nation’s largest maker of auto batteries. Since 1982, all women “capable of bearing children” have been excluded from its battery factories because they could be exposed to lead, a known danger to a developing fetus. Even women who were 50 years old or homosexual were barred unless they could prove that they were sterile.

The company said that its policy was intended both to protect fetuses and to shield it from lawsuits by women who suffer miscarriages or give birth to a child damaged by his mother’s exposure to lead. Because women can become pregnant unexpectedly, the only way to be safe was to exclude all women potentially capable of bearing children, company officers said.

A California court, acting on a lawsuit by women working in a Johnson Controls plant in Fullerton, ruled against the policy.

However, a federal judge in Milwaukee, without conducting a trial, dismissed a union lawsuit challenging the policy, ruling that it was “necessary” for business to exclude women. Two years ago, a federal appeals court in Chicago upheld that conclusion.

Women’s rights attorneys feared that this principle--if affirmed by the high court--could badly undercut federal laws banning discrimination based on sex or pregnancy.

But, instead, Blackmun, the author of the 1973 Roe vs. Wade ruling making abortion legal, led a coalition which ruled that federal law gives women, not employers or judges, the sole right to decide what is best for them and their offspring. New Justice David H. Souter joined the majority.

“Women . . . may not be forced to choose between having a child and having a job,” Blackmun said in the case (International Union vs. Johnson Controls, 89-1215). It is neither the court’s nor an employer’s right to “decide whether a woman’s reproductive role is more important . . . than her economic role.”

Justice Antonin Scalia concurred with the majority. But he did not sign the broad ruling, saying it went too far in proclaiming that sex-specific fetal protection policies never could be justified. The Bush Administration had urged the justices to rule that such a policy could be legal but that it should be judged by a standard more stringent than “business necessity.”

Three conservatives--Chief Justice William H. Rehnquist and Justices Byron R. White and Anthony M. Kennedy--said that the “fetal protection” policies should be judged on a case-by-case basis. They said they would permit employers to exclude women “from certain jobs” if it were “reasonably necessary” to shield employers from lawsuits.

Women’s rights attorneys said they were heartened by the vote cast by Souter, who is likely to be the key swing vote in future abortion rulings.

“That was a very pleasant surprise,” Alison Wetherfield of the NOW Legal Defense Fund said. “This decision is more reminiscent of the 1970s than of what we have come to expect recently from the Supreme Court,” she added.

Wendy Stone, a spokeswoman for Americans United for Life, said that her group is “certainly not encouraged” by Souter’s vote or by the court’s willingness to say that “the health of an unborn child is outside the scope of an employer’s responsibility.”

But both sides noted that this case involved an interpretation of federal anti-discrimination laws, not the Constitution’s protection of a right to abortion. It remains unclear whether the ruling will affect cases such as those in which women have been charged with criminal negligence for using drugs during a pregnancy.

Attorneys who have followed fetal protection cases said they were not aware of lawsuits in which a woman won money damages from an employer for injuries suffered by a fetus.

“It’s almost impossible to prove” that a working woman’s exposure to hazardous chemicals caused the damage that shows up years later in her child, University of Chicago law professor Mary Becker said.

In a word of reassurance to corporate lawyers, the high court said that employers probably would be shielded from lawsuits filed by mothers of damaged children so long as “the employer fully informs the woman of the risk and . . . has not acted negligently.”