OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

July 11, 1991

 

 

MEMORANDUM FOR: BOWLAND(ASP) S-2006
KOMAREK(OASAM S-2514
WALKER(ROBINSON)(ESA) C-3321
VARTANIAN(WB) S-3002
SCANNELL(LINSENMAYER)(OSHA) N-3641
FELDMAN(SASCL) N-2700
GUTTMAN(OSHEL)(OLMS) N-5613
SPRING(ONANIAN)(LMRCP) N-5402
HENRY(CR) N-2464
GALLAGHER(FLS) N-2716
ATTWOOD(SWAIN)(OSH) S-4004
DEPENBROCK(LML) N-2474
 
FROM: Robert A. Shapiro
Associate Solicitor for Legislation and Legal Counsel
 
SUBJECT: Clearance of EEOC Policy Guidance on the Supreme Court Decision in International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc.

 


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].

Attachment

[Corrected 10/22/2004]

 

 

EEOC NOTICE      NUMBER N-915.064      DATE 6/28/91

  1. SUBJECT. Policy guidance on the Supreme Court Decision in International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc..
     
  2. Purpose. This policy guidance analyzes the Supreme Court's decision in Johnson Controls and its effect on Commission investigations.
     
  3. EFFECTIVE DATE. Upon issuance.
     
  4. EXPIRATION DATE. As an exception to EEOC Order 205.001, Appendix B, Attachment 4, a(5), this notice will remain in effect until rescinded or superseded.
     
  5. ORIGINATOR. Title VII/EPA Division, Office of Legal Counsel.
     
  6. INSTRUCTIONS. File behind page 625-25 of Section 625 (Bona Fide Occupational Qualifications) in Volume II of the Compliance Manual.
     
  7. SUBJECT MATTER.
    1. The Decision

      On March 20, 1991, the Supreme Court decided the case of International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc., 111 S. Ct. 1196, 55 EPD 40,605 (1991). The Court overruled a decision by the Seventh Circuit1 upholding a battery manufacturing company's broad exclusion of all fertile females from jobs in its workplace that exposed them to lead.

      The fetal protection policy at issue in Johnson Controls was devised by the employer for the purpose of "protecting pregnant women and their unborn children from dangerous blood lead levels." 886 F.2d at 876. That policy excluded all women, except those whose inability to bear children was medically documented, from jobs in which lead levels were defined as excessive.2

      The Supreme Court granted certiorari to resolve a conflict between the Fourth, Seventh and Eleventh Circuits as to the legality of fetal protection policies,3 and to address "whether an employer, seeking to protect potential fetuses, may discriminate against women just because of their ability to become pregnant." 111 S. Ct. at 1202. It held that Title VII forbids sex-specific fetal protection policies.

      The Court turned first to the question of whether the policy at issue was a neutral one to which the business necessity defense applies, or a facially discriminatory one for which BFOQ analysis is appropriate. It found that Johnson Controls' policy was facially discriminatory. Id. The policy created a facial classification based on sex, according to the Court, since it denied fertile women a choice given to fertile men "as to whether they wish[ed] to risk their reproductive health for a particular job." Id. Furthermore, by making capability of bearing children the criterion for exclusion, "Johnson Controls explicitly classifie[d] on the basis of potential for pregnancy," and under the Pregnancy Discrimination Act, such a classification must be regarded in the same light as explicit sex discrimination. Id. at 1203. On that ground, it rejected the lower courts' use of business necessity and ruled that BFOQ was the only possible defense.

      The Court next considered whether Johnson Controls' fetal protection policy came within the BFOQ exception. It emphasized that the BFOQ defense is written narrowly and has been read narrowly by the Court. Id. at 1204.4 It further stated that the term "occupational" in the wording of the defense reflected an intent by Congress to narrow the exception to qualifications "that affect an employee's ability to do the job." Id. at 1205.

      Johnson Controls argued that its fetal protection policy fell within the "safety exception" to the BFOQ, under which third party safety concerns may justify application of the defense. The Court rejected this argument, holding that the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee's ability to safety perform those aspects of the job that fall within the "essence" of the particular business. ID. at 1206-07.5

      The Court stated that the third-party safety concerns raised by Johnson Controls did not relate to the female employees' ability to perform the job or to the essence of its business.6 Fertile women, as far as appeared in the record, "participate in the manufacture of batteries as efficiently as anyone else." Id. at 1207. Furthermore, according to the Court, "[t]he unconceived fetuses of Johnson Controls' female employees . . . are neither customers nor third parties whose safety is essential to the business of battery manufacturing." Id. at 1206. Finally, the Court held that "the incremental cost of hiring women cannot justify discriminating against them."7 Id. at 1209. Thus, Johnson Controls could not establish a BFOQ.
       
    2. Analysis and EEOC Charge Processing

      As a result of the Supreme Court's decision in Johnson Controls, policies that exclude members of one sex8 from a workplace for the purpose of protecting fetuses cannot be justified under Title VII. Thus, if a charging party alleges that the respondent has excluded members of one sex from employment based on a fetal protection policy, and if the investigation confirms this allegation, "cause" should be found.9 It does not matter whether the employer can prove that a substance to which its workers are exposed will endanger the health of a fetus. It also does not matter whether the employer can prove that it will incur a higher cost as a result of hiring women. Individuals who can perform the essential functions of a job must be considered eligible for employment, regardless of the presence of workplace hazards to fetuses.

      In light of the Supreme Court's decision in Johnson Controls, Compliance Manual Section 624 (Reproductive and Fetal Hazards) and the Commission's prior policy guidance issuances on fetal protection policies10 are hereby rescinded, and the mode of analysis set forth in those documents should no longer be applied.
       

Date: 6-28-91 Approved: Evan J. Kemp, Jr. Chairman

 

 

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 ]