International Union, UAW v. Johnson Controls, Inc.

Facts

The statutory framework. Section 703(a) of the Civil Rights Act of 1964 makes it unlawful “to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment … because of such individual’s … sex,” or “to limit, segregate, or classify his employees … because of such individual’s … sex.” (42 U.S.C. § 2000e-2(a); quoted at Johnson Controls, supra, 499 U.S. at pp. 196–197, fn. 2.) The Pregnancy Discrimination Act added that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ … include … because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy … shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.” (42 U.S.C. § 2000e(k); quoted at id. at p. 199, fn. 3.) Section 703(e)(1) permits sex discrimination only “in those certain instances where … sex … is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” (42 U.S.C. § 2000e-2(e)(1); quoted at id. at p. 201.)

The employer and the hazard. Respondent Johnson Controls, Inc. “manufactures batteries,” a process in which “the element lead is a primary ingredient.” (Johnson Controls, supra, 499 U.S. at p. 190.) “Occupational exposure to lead entails health risks, including the risk of harm to any fetus carried by a female employee.” (Ibid.) Before the 1964 Act, the company “did not employ any woman in a battery-manufacturing job.” (Id. at pp. 190–191.)

From warning to exclusion. In 1977 Johnson Controls adopted a policy of warning but “stopped short of excluding women capable of bearing children from lead exposure.” (Id. at p. 191.) Then, “[b]etween 1979 and 1983, eight employees became pregnant while maintaining blood lead levels in excess of 30 micrograms per deciliter,” which “appeared to be the critical level noted by the Occupational Safety and Health Administration (OSHA) for a worker who was planning to have a family.” (Ibid.) In 1982 the company “shifted from a policy of warning to a policy of exclusion,” announcing that “women who are pregnant or who are capable of bearing children will not be placed into jobs involving lead exposure.” (Ibid.) The policy defined “‘women … capable of bearing children’” as “‘all women except those whose inability to bear children is medically documented.’” (Id. at pp. 191–192.)

The plaintiffs. Among the individual petitioners were “Mary Craig, who had chosen to be sterilized in order to avoid losing her job,” “Elsie Nason, a 50-year-old divorcee, who had suffered a loss in compensation when she was transferred out of a job where she was exposed to lead,” and “Donald Penney, who had been denied a request for a leave of absence for the purpose of lowering his lead level because he intended to become a father.” (Id. at p. 192.)

Procedural history

In April 1984, petitioners — a class of affected employees and the UAW — “filed in the United States District Court for the Eastern District of Wisconsin a class action challenging Johnson Controls’ fetal-protection policy as sex discrimination that violated Title VII.” (Id. at p. 192.) The District Court “granted summary judgment for defendant-respondent,” applying “a three-part business necessity defense” and concluding that petitioners had “failed to establish that there is an acceptable alternative policy which would protect the fetus”; because of that disposition, the court declined to “undertake a bona fide occupational qualification’s … (BFOQ) analysis.” (Id. at pp. 193–194.)

The Seventh Circuit, “sitting en banc, affirmed the summary judgment by a 7-to-4 vote.” (Id. at p. 193.) The majority held that the “proper standard” was “business necessity,” applied the burden-shifting of Wards Cove Packing Co. v. Atonio to “impose[] the burden on the plaintiffs for all three steps,” and held in the alternative that “industrial safety is part of the essence of respondent’s business” and the policy a permissible BFOQ. (Id. at pp. 193–195.) With that ruling “the Seventh Circuit became the first Court of Appeals to hold that a fetal-protection policy directed exclusively at women could qualify as a BFOQ.” (Id. at pp. 196–197.) Judges Cudahy, Posner, Easterbrook, and Flaum dissented, all agreeing the only available defense was the BFOQ and that summary judgment was improper on “so meager a record.” (Id. at pp. 195–196.) The Supreme Court granted certiorari “to resolve the obvious conflict between the Fourth, Seventh, and Eleventh Circuits.” (Id. at p. 197.)

Issue

The Court framed the question at the outset: “May an employer exclude a fertile female employee from certain jobs because of its concern for the health of the fetus the woman might conceive?” (Id. at p. 190.) Embedded within it were two doctrinal questions: whether a sex-specific fetal-protection policy is facial sex discrimination (testable only as a BFOQ) or instead a facially neutral practice (testable under the more lenient business-necessity framework); and, if the former, whether such a policy can ever satisfy the BFOQ defense of section 703(e)(1).

Holding

Reasoning

The bias is on the face of the policy. The Court began bluntly: “The bias in Johnson Controls’ policy is obvious. Fertile men, but not fertile women, are given a choice as to whether they wish to risk their reproductive health for a particular job.” (Id. at p. 197.) Because the policy “excludes women with childbearing capacity from lead-exposed jobs,” it “creates a facial classification based on gender” — a point respondent itself “assumes … in its brief.” (Ibid.) The lower courts had erred in “assum[ing] … that sex-specific fetal-protection policies do not involve facial discrimination” and in analyzing them “as though they were facially neutral and had only a discriminatory effect.” (Id. at pp. 197–198.)

The policy is not neutral — and a benign motive does not make it so. First, the policy “classifies on the basis of gender and childbearing capacity, rather than fertility alone,” reaching “only … the harms that may befall the unborn offspring of its female employees” despite “evidence in the record about the debilitating effect of lead exposure on the male reproductive system.” (Id. at p. 198.) Drawing on Phillips v. Martin Marietta Corp., the Court found sex discrimination because the rule “requires only a female employee to produce proof that she is not capable of reproducing.” (Ibid.) Second, the Court rejected the notion that an “ostensibly benign” purpose neutralized the classification: “the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect.” (Id. at p. 199.) Whether a practice is disparate treatment “does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.” (Ibid.) Thus “[t]he beneficence of an employer’s purpose does not undermine the conclusion that an explicit gender-based policy is sex discrimination under § 703(a) and thus may be defended only as a BFOQ.” (Ibid.)

The PDA seals the classification. The Court’s “conclusion is bolstered by the … [PDA],” under which “discrimination based on a woman’s pregnancy is, on its face, discrimination because of her sex.” (Id. at pp. 198–199, quoting Newport News Shipbuilding & Dry Dock Co. v. EEOC.) Because the policy used “capable of bearing children” as the exclusion criterion, it “explicitly classifies on the basis of potential for pregnancy,” which “must be regarded, for Title VII purposes, in the same light as explicit sex discrimination.” (Id. at p. 199.) Johnson Controls “has chosen to treat all its female employees as potentially pregnant; that choice evinces discrimination on the basis of sex.” (Ibid.) The EEOC’s January 1990 Policy Guidance “accords with this conclusion,” having stated that placing the burden on the plaintiff “‘is wholly inconsistent with settled Title VII law’” and that “‘BFOQ is the better approach.’” (Id. at pp. 199–200.)

The BFOQ is written narrowly and concerns ability to do the job. Turning to section 703(e)(1), the Court stressed that the “BFOQ defense is written narrowly, and this Court has read it narrowly.” (Id. at p. 201.) The statute’s terms of restriction — “‘certain instances,’” “‘reasonably necessary,’” “‘normal operation,’” “‘particular’ business — “prevent[] the use of general subjective standards and favor[] an objective, verifiable requirement.” (Ibid.) “But the most telling term is ‘occupational’; this indicates that these objective, verifiable requirements must concern job-related skills and aptitudes.” (Ibid.) Answering Justice White’s reading that any employer-imposed condition is “job-related,” the Court held that interpretation “renders the word mere surplusage”: “[b]y modifying ‘qualification’ with ‘occupational,’ Congress narrowed the term to qualifications that affect an employee’s ability to do the job.” (Ibid.)

The safety exception is limited to the essence of the business. The Court confined the “so-called safety exception,” explaining that “discrimination on the basis of sex because of safety concerns is allowed only in narrow circumstances.” (Id. at pp. 201–202.) Dothard v. Rawlinson and Western Air Lines, Inc. v. Criswell allowed sex- and age-based exclusions only because the excluded trait went “to the ‘essence,’ or to the ‘central mission of the employer’s business,’” and because the endangered “third parties were indispensable to the particular business” — inmates in Dothard, passengers in Criswell. (Id. at pp. 202–203.) “The unconceived fetuses of Johnson Controls’ female employees, however, are neither customers nor third parties whose safety is essential to the business of battery manufacturing.” (Id. at p. 203.) The BFOQ “is not so broad that it transforms this deep social concern into an essential aspect of battery making.” (Id. at pp. 203–204.) The lesson: “the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job.” (Id. at p. 204.)

The PDA supplies a BFOQ standard of its own. The Court found the PDA independently dispositive. Its second clause “contains a BFOQ standard of its own: Unless pregnant employees differ from others ‘in their ability or inability to work,’ they must be ‘treated the same’ as other employees ‘for all employment-related purposes.’” (Ibid.) Hence “women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job.” (Ibid.) The legislative history “confirms what the language of the PDA compels”: both Reports show the standard “was chosen to protect female workers from being treated differently … simply because of their capacity to bear children.” (Id. at p. 205.) Congress thus reserved “the decision to become pregnant or to work while being either pregnant or capable of becoming pregnant … for each individual woman to make for herself.” (Id. at pp. 205–206.)

No BFOQ on these facts. The Court had “no difficulty concluding that Johnson Controls cannot establish a BFOQ.” (Id. at p. 206.) “Fertile women … participate in the manufacture of batteries as efficiently as anyone else,” and the company’s “professed moral and ethical concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility.” (Ibid.) “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.” (Ibid.) Quoting Judge Easterbrook, the Court added: “‘It is word play to say that “the job” at Johnson [Controls] is to make batteries without risk to fetuses in the same way “the job” at Western Air Lines is to fly planes without crashing.’” (Id. at p. 207.) Even on the “sparse record,” the company had shown no “‘factual basis for believing that all or substantially all women would be unable to perform safely and efficiently the duties of the job.’” (Ibid., quoting Weeks v. Southern Bell Tel. & Tel. Co.)

Cost and tort-liability fears do not save the policy. The Court conceded that Title VII “does not prevent the employer from having a conscience,” but “does prevent sex-specific fetal-protection policies. These two aspects of Title VII do not conflict.” (Id. at p. 208.) On tort exposure, the Court reasoned that where “Title VII bans sex-specific fetal-protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best.” (Ibid.) Because Johnson Controls “has not argued that it faces any costs from tort liability,” the “pre-emption question is not before us,” and the Court “say[s] no more than that the concurrence’s speculation appears unfounded as well as premature.” (Id. at p. 210.) On cost, “the incremental cost of hiring women cannot justify discriminating against them,” for “[t]he extra cost of employing members of one sex … does not provide an affirmative Title VII defense for a discriminatory refusal to hire members of that gender.” (Id. at pp. 210–211, citing Manhart.) The Court closed by noting its holding is “neither remarkable nor unprecedented,” since “[c]oncern for a woman’s existing or potential offspring historically has been the excuse for denying women equal employment opportunities,” citing Muller v. Oregon. (Id. at p. 211.)

The concurrences: a contested view of the BFOQ’s breadth. Justice White, joined by Chief Justice Rehnquist and Justice Kennedy, “concur[red] in part and concur[red] in the judgment.” He agreed the policy “overtly discriminates against women” and that summary judgment “was improperly entered,” but objected that the Court “erroneously holds … that the BFOQ defense is so narrow that it could never justify a sex-specific fetal-protection policy.” (Id. at pp. 211–212.) In his view a policy could qualify “if … exclusion of women … was reasonably necessary to avoid substantial tort liability,” because “avoid[ing] causing injury to third parties” is “part of the normal operation of business.” (Id. at pp. 212–213.) He read Dothard and Criswell to confirm “that the defense is broad enough to include considerations of cost and safety,” disputed the Court’s reliance on “‘occupational,’” and argued the PDA “did not restrict the scope of the BFOQ defense.” (Id. at pp. 212, n. 1, 214–218.) He nonetheless concurred in reversal because the Seventh Circuit failed to assess Johnson Controls’ “normal” risk-avoidance level, ignored that the policy “reaches too far,” misallocated the BFOQ burden — which “rests with the employer” — and wrongly discounted the male-exposure evidence as “speculative.” (Id. at pp. 220–222.)

Scalia, J., concurring in the judgment. Justice Scalia “generally agree[d] with the Court’s analysis” but added reservations. He thought it “irrelevant” whether lead also harms the male reproductive system: “treating women differently ‘on the basis of pregnancy’ constitutes discrimination ‘on the basis of sex,’ because Congress has unequivocally said so.” (Id. at p. 223.) Likewise it “would not matter if all pregnant women placed their children at risk.” (Ibid.) On tort liability he parted from the majority’s reasoning, finding it “alone enough” that “Johnson has not demonstrated a substantial risk of tort liability … to defeat a tort-based assertion of the BFOQ.” (Id. at pp. 223–224.) And he criticized the Court for “go[ing] far afield” in suggesting “increased cost alone … cannot support a BFOQ defense.” (Id. at p. 224.)

Significance

Johnson Controls is the Supreme Court’s definitive rejection of “protective” exclusion of women from hazardous work, and it draws a bright doctrinal line that practitioners still litigate against. Its first move — treating a sex-specific fetal-protection rule as facial disparate treatment rather than a neutral practice with disparate impact — removed such policies from the more lenient Wards Cove business-necessity framework and confined the employer to the narrow statutory BFOQ defense. (Id. at pp. 198, 200.) Its second move narrowed the BFOQ itself: a qualification must “affect an employee’s ability to do the job,” and the safety exception reaches only third parties “indispensable to the particular business” and within its “essence.” (Id. at pp. 201, 203.)

For California practitioners the decision maps directly onto FEHA sex-discrimination and BFOQ analysis and onto the CACI series governing disparate treatment and bona-fide-occupational-qualification defenses. The opinion notes that a California Court of Appeal had already invalidated this very policy under state fair-employment law. (Id. at pp. 196–197, fn. 1.) The case is also a cornerstone of reproductive-autonomy doctrine in employment: it locates the choice to work while fertile or pregnant “with the woman as hers to make,” not the employer or the courts. (Id. at p. 211.) Its limits matter too. The Court did not decide the pre-emption of state tort law, did not address privacy-based BFOQs, and reserved the case of “costs … so prohibitive as to threaten the survival of the employer’s business.” (Id. at pp. 207, fn. 4, 210–211.) And the BFOQ’s breadth remains contested: four Justices (White, Rehnquist, Kennedy, and Scalia) rejected the majority’s view that the defense “could never” support a fetal-protection policy. (Id. at p. 212.)

Key quotes

“The beneficence of an employer’s purpose does not undermine the conclusion that an explicit gender-based policy is sex discrimination under § 703(a) and thus may be defended only as a BFOQ.” (Johnson Controls, supra, 499 U.S. at p. 199.)

“By modifying ‘qualification’ with ‘occupational,’ Congress narrowed the term to qualifications that affect an employee’s ability to do the job.” (Id. at p. 201.)

“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.” (Id. at p. 206.)

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Practice pointer

Open questions

The Court expressly reserved several issues. Pre-emption of state tort law. Because “Johnson Controls has not argued that it faces any costs from tort liability … the pre-emption question is not before us,” and the Court “say[s] no more than that the concurrence’s speculation appears unfounded as well as premature.” (Id. at p. 210.) Privacy-based BFOQs. The Court “ha[d] never addressed privacy-based sex discrimination and sh[ould] not do so here,” adding that “[n]othing in our discussion of the ‘essence of the business’ test … suggests that sex could not constitute a BFOQ when privacy interests are implicated.” (Id. at p. 206, fn. 4.) Business-threatening cost. The Court was “not presented with, nor do we decide, a case in which costs would be so prohibitive as to threaten the survival of the employer’s business.” (Id. at pp. 210–211.) Justice Scalia would leave open whether “Title VII has accommodated state tort law through the BFOQ exception,” resolving the case only on the absence of a demonstrated “substantial risk of tort liability.” (Id. at pp. 223–224.) And the majority and the White-led concurrence left genuinely unsettled, for future cases, whether the BFOQ can ever reach cost and third-party-harm concerns beyond an employee’s own job performance — the precise scope of that defense being the heart of the disagreement among the Justices. (Id. at p. 212.)