Standard Interpretations - Table of Contents|
July 11, 1991
Pursuant to Executive Order 12067, the Equal Employment Opportunity Commission (EEOC) has requested that the Department review the above-captioned document. After final approval, the guidance will be incorporated into Volume II of the EEOC Compliance Manual.
Your office should relay any comments that you have on this matter to [the Office of Equal Employment Opportunity at 202 693-1999].
EEOC NOTICE NUMBER N-915.064 DATE 6/28/91
1 United Auto Workers v. Johnson Controls, 886 F.2d 871, 51 EPD 39,359 (7th Cir. 1989) (en banc). [ Back to Text ]
2 Johnson Controls decided not to restrict its exclusionary policy to pregnant women because of "the very definite possibility that lead exposure will occur between conception and the time the woman discovers her pregnancy." 886 F.2d at 878. [ Back to Text ]
3 In Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir. 1984) and Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982), the Eleventh and Fourth Circuits applied a modified disparate impact analysis and concluded that the business necessity defense applied. They established a three-step inquiry for analyzing the legality of fetal protection policies: 1) whether there is a substantial health risk to the fetus; 2) whether transmission of the hazard to the fetus occurs only through women; and 3) whether there is a less discriminatory alternative equally capable of preventing the health hazard to the fetus. 111 S. Ct. at 1201. In UAW v. Johnson controls, 886 F.2d at 886-888, the Seventh Circuit agreed with the Fourth and Eleventh Circuits that the business necessity defense applies to fetal protection cases, but unlike those circuits, it imposed the burden of proof on the plaintiffs for all three steps of the analysis. It also held that a fetal protection policy could qualify as a BFOQ. Id. at 901. [ Back to Text ]
4 The Court cited Dothard v. Rawlinson, 433 U.S. 321, 332-337 (1977) and Trans World Airlines, Inc. v. Thurston, 469 U. S. 111 122-125 (1985), and added that the restrictive scope of the BFOQ defense is grounded on both the language and legislative history of 703 of Title VII. It also noted that the BFOQ defense under the Age Discrimination in Employment Act is just as narrow, citing Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985). Johnson Controls, 111 S. Ct. at 1204. [ Back to Text ]
5 The Court drew further support for its ruling from the language of the Pregnancy Discrimination Act (PDA), 42 U.S.C. 2000e(k), under which female employees who are pregnant or potentially pregnant must be treated the same for all employment- related purposes as others who are similar in their ability or inability to work. 111 S. Ct. at 1206-07. The Court concluded that both the BFOQ provision and the PDA "prohibit an employer from discriminating against a woman because of her capacity to become pregnant unless her reproductive potential prevents her from performing the duties of her job." Id. at 1207. [ Back to Text ]
6 The Court contrasted the safety concerns raised by Johnson Controls to the ones at issue in Dothard and Criswell. In those cases, according to the Court, the third party safety concerns "went to the core of the employee's job performance" and related to the "central purpose" of the business. 111 S. Ct. at 1206. In Dothard, the Court had found that employment of a female guard would create real safety risks if violence broke out because the guard was a woman; therefore sex was related to the essence of the guard's job -- maintaining prison security. In Criswell, the safety concerns involved the possibility that age-connected debility might prevent a flight engineer from properly assisting the pilot, thereby causing a safety emergency and undermining the central mission of the airline's business -- safely transporting passengers. Id. at 1205-06. [ Back to Text ]
7 The Court noted that it was not presented with, nor did it decide, "a case in which costs would be so prohibitive as to threaten the survival of the employer's business." Id. at 1209.
Furthermore, although the issue was not before it, the Court considered whether potential tort liability for prenatal injury could justify the BFOQ defense. Id. at 1208-09. The Court expressed skepticism that Johnson Controls would actually face such liability, since it allegedly was in compliance with the lead standard developed by the Occupational Safety and Health Administration, and therefore could not be found guilty of negligence. According to the Court, the basis for holding an employer liable "seems remote at best" if, "under general tort principles, Title VII bans sex-specific fetal protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently . . ." Id. at 1208. It also suggested that compliance with Title VII's prohibition of sex-specific fetal protection policies might preempt state tort liability, since tort liability would punish employers for complying with Title VII. Id. at 1209.
Justice White, in a concurring opinion joined by Justices Rehnquist and Kennedy, disagreed with the majority's view that tort liability is not likely to arise as a result of the employment of fertile women in a workplace that contains fetal hazards. Id. at 1210 (White, J., concurring). He stated that every state currently allows children born alive to recover in tort for prenatal injuries caused by third parties. He further stated that it is far from clear that compliance with Title VII will preempt state tort liability; that warnings to employees as to the existence of fetal hazards will not preclude claims by their injured children; and that compliance with OSHA standards might not necessarily preclude findings of employer negligence. Id. at 1210-11. Justice White also took issue, as did Justice Scalia in a separate concurrence, with the majority's ruling that increased costs cannot support a BFOQ defense. The concurring justices instead believed that costs are relevant to a BFOQ analysis. Id. at 1211-12 (White, J., concurring) and 1216-17 (White J., concurring). [ Back to Text ]
8 For example, a fetal protection policy might exclude "all women," "all women of childbearing capacity," "all women of childbearing age" or "all pregnant women" from a work site containing fetal hazards. [ Back to Text ]
9 Of course, as in any pregnancy discrimination case, a respondent has a defense if it proves that a particular individual cannot perform the essential functions of the job. [ Back to Text ]
10 Policy Guidance on reproductive and Fetal Hazards (10/7/88) and Policy Guidance on UAW v. Johnson Controls (1/24/90). [ Back to Text ]
Standard Interpretations - Table of Contents|