Fertile Women May Now Apply: Fetal Protection Policies after Johnson Controls Barbara Ruhe Grumet*
. . . . . . . . . . . . . . . . . . . . The Narrow Issue in Johnson Controls Traditionally, employment policies or practices have been found to impermissibly discriminate in one of two ways, through disparate treatment or workers or disparate effects on them. Different treatment because of gender is facially forbidden but may be permitted if gender is a bona fide occupational qualification [BOFQ]; this would be the case with, e.g., sperm donors or wet nurses. Moreover, a practice neutral on its face may violate the act if it systematically excludes members of one gender. Classic examples of impact discrimination are height, weight and body strength requirements. These may be upheld if the employer can demonstrate business necessity. In most circumstances, height or weight limits would be rejected, but a minimum strength requirement for jobs such as firefighting would pass muster. Few cases were decided under the Act prior to Johnson Controls. In one, a pregnant x-ray technician was fired rather than transferred under a hospital's pregnancy policy.11 The hospital said that no other job was available, but the court found this unproven. The court found the policy prima facie discriminatory and said that it could be allowed only with a showing of substantial risk to fetuses or fertile or pregnant women, but not to men. The hospital could not meet the test. Besides these deficiencies in its case, the woman was fired after any damage was apt to have already been done. In another case, an employer won.12 Its practices were found permissible under a disparate impact analysis. In reaching that result, unborn children were analogized to invitees and licensees, to whom businesses may be liable for injuries. Regardless of outcome, both courts recognized circumstances where gender discrimination based on fetal risk would be appropriate. However, the rationale for the Supreme Court's conclusion in Johnson Controls seems to leave little room for such occupational policies to withstand future challenges. Of particular importance are its statements that:13 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. ...[T]reat[ing] all its female employees as potentially pregnant... evinces discrimination on the basis of sex. . . . [T]he language of both the BFOQ provision and the PDA which amended it, as well as the legislative history and the case law, 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. ...[P]rofessed moral and ethical concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility. 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. Thus, the Court has decided that a proper interpretation of the Act gives the choice of whether and where to work to a woman herself, not to her employer. Reproductive Freedom One major question this raises is the legal culpability of women who choose to expose their potential offspring to risks that others would find unacceptable. Some scholars have argued that, once a woman makes a commitment to continue a pregnancy, she has an obligation to behave reasonably towards that fetus, including protecting it from known hazards.14 Others have argued that the woman's right to decide what to do to her own body supersedes any rights of the fetus, at least until the third trimester of pregnancy.15 Beyond abortion rights cases, such issues have arisen in a variety of ways. Some cases seem to allow women to expose fetuses to risks potentially even more severe than those normally encountered in the workplace. Consider, for example, criminal charges that may be brought against pregnant women who continue to abuse drugs during pregnancy. Charges such as child abuse, homicide, or endangering the welfare of a minor are often dismissed and are unlikely to result in conviction.16 However, babies may be removed from parental custody under laws creating, e.g., a "presumption of neglect" if a child is born suffering from symptoms of drug addiction.17 These laws have been upheld on the basis of states' obligations to act in the "best interests of the child."18 Also, courts may require pregnant women to undergo treatment such as blood transfusion or cesarian birth.19 In the vast majority of these cases, the woman is in the third trimester of pregnancy. In such circumstances, the fetus is viable, and, if it is likely to die without the recommended medical intervention, the state's responsibility to the fetus may outweigh the mother's right to decide what should be done to her body. Beyond this, there seems to be a new interest in fetal health. For example, New York State has recently enacted legislation requiring restaurant and liquor store owners to post signs warning pregnant women that alcohol is harmful to the fetus.20 Lawsuits against pregnant women who behave irresponsibly toward their fetuses are on the increase. Fears that "pregnancy police" are crusading to protect the unborn are being raised throughout the country.21 Thus far, concern for the unborn seems to be focusing on such things as illegal activity, smoking and drinking. Pregnant women are being criticized for knowingly endangering the future well being of unborn children. To the extent that women are accountable for doing so, Johnson Controls may extend the reach of this concern into the workplace. However, should women be coerced into avoiding occupational settings that pose a threat to their offspring, this will be a result of state action or social pressure -- and not the policies of any given employer. FULL TEXT: <http://www.piercelaw.edu/risk/vol2/summer/grumet.htm> -- Yoshie <http://montages.blogspot.com/> <http://mrzine.org> <http://monthlyreview.org/>
