On March 20, 1991, the Supreme Court decided the case of United Auto Workers v. Johnson Controls. In this case, the Court, unanimously but with factions, held that private sector policies banning women’s work with potentially hazardous materials was a discriminatory act. This upheld the Pregnancy Discrimination Act of 1978 and was an important moment in the battle for equal work.
By the 1970s, the Equal Employment Opportunity Commission was strongly pushing firms to hire women in all lines of work. Many resisted, often using the same sort of special classifications for women that had once been beneficial in gaining women labor rights in a bad era but were now plainly discriminatory. Bunker Hill Mining in Idaho decided if it had to comply, it would require women be sterilized so the company would not be held accountable for any birth defects. I mean, they could make the work safe and clean, but who are we kidding. American Cyanamid did the same thing, until its union sued them and the government finally intervened with a very marginal fine.
By 1973, Johnson Controls succumbed to EEOC pressure and hired some women in its Bennington, Vermont battery plant. In 1977, like the other companies, it put in a sterilization policy, which it called voluntary and a “fetal protection plan.” It required all women who did, against the company’s strong advice, take a job working with the batteries, to sign a waiver saying they had been warned about the dangers of lead poisoning. A lot of women went ahead and did this. But in 1982, Johnson Controls decided to just ban women from the work. They defended their discrimination and ridiculously toxic factory with patriarchal and condescending language, noting: “A child born with lead poisoning is tragic. To knowingly poison unborn children is morally reprehensible. Johnson Control will do everything within its power to avoid having this happen at its manufacturing plants.” The workers and their union, the United Auto Workers knew what this really was about–Johnson Controls didn’t want to get sued.
So the UAW sued on behalf of seven workers. The seven were a variety of workers–four women in their 50s who had not yet gone through menopause but were certainly not planning a pregnancy, one woman in her 30s who had undergone sterilization to keep her job, a woman whose husband had a vasectomy, and a man who was trying to have a child with his wife and had asked for a transfer from the lead-exposed area until they had a child, but who had been denied by management. Of course, underlying all of this was ridiculous levels of sexism from managers. The woman whose husband had a vasectomy assumed she wouldn’t have a problem, but, “However, the plant manager told me that even though my husband had been sterilized, I could still ‘screw around.'” She left the plant after that and got a job working fast-food, which of course meant a major reduction in the amount of money she earned. The woman who had been sterilized received a similar message before she agreed to it. The manager told her, “I could still fool around and get pregnant. I decided to have the sterilization because I needed to keep my job.”
Johnson Controls did not have an easy legal case to make. First, they had to prove that the lead could poison a fetus, but not poison the workers. They also had to prove that their goal was actually to protect fetuses, not protect themselves from liability. Company executives and their lawyers decided the smart strategy was to blame women for their selfish choices putting their future children as risk by working. Some one Johnson Controls executive: “Johnson Controls wants to employ women. We have many in good-paying, responsible jobs. What we do not want is to put their children in jeopardy.” In fact, the company claimed the policy banning potentially fertile women was necessary precisely because they were so selfish: “For years, Johnson Controls encouraged women capable of bearing children to voluntarily transfer out of the high lead exposure jobs. This effort was ineffective as several women failed to do so and became pregnant while their blood levels exceeded the safeyy point for their children.” Because the employer couldn’t determine which women would become pregnant, it had no choice but to exclude all “employees in the excluded class who possess the trait that causes the safety problem.”
Wait a second. “The trait that causes the safety problem.” That’s a new way to classify scary women parts that might get in the way of unfettered profit. Classy.
Unfortunately, early court decisions in the case supported the company’s position. In 1989, the Seventh Circuit Court of Appeals decided that a woman’s “interests in financial reward” did not outweigh “a medically established risk of the birth of a medically or physically deprived baby.” In the decision, Judge John Coffey actually wrote that the case was “about women who want to hurt their fetuses for a slightly higher wage.” In doing so, the decision claimed it was the company providing an unsafe and toxic workplace who was more concerned with protecting the fetus than the parents. Hmmm…..
The UAW appealed the case. In 1991, the Supreme Court overturned the Seventh Circuit and unanimously ruled that fetal protection policies was a violation of Title VII of the Civil Rights At of 1964. Justice Harry Blackmun, who of course had authored the decision of Roe v. Wade, wrote in the very first sentence of his opinion that “The bias in Johnson Controls’ policy is obvious.” that “being potentially pregnant does not render women incapable of making batteries” and that “the threat of tort liability of injured children [could not] justify the exclusion of fertile women.” He ended all fetal protection policies like this, writing “decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to employers who hire those parents.” The decision also noted that the Pregnancy Discrimination Act already required employers to treat pregnant or potentially pregnant workers the same as other workers. This case was so obvious that even Antonin Scalia declared it unconstitutional, albeit in a concurring opinion.
I borrowed from Sara Dubow’s outstanding Ourselves Unborn: A History of the Fetus in Modern America for the writing of the post. You should read it.
This is the 262nd post in this series. Previous posts are archived here.