Courting Disaster: Judges,Workers and the Case of Johnson Controls

886 F.2d 871 (7th Cir. 1989), cert. granted, 110 s.c.t. 1522 (1990).

680 F.Supp. 309 (E.D. Wis. 1988).

42 U.S.C. 2000e et seq., as amended by the Pregnancy Discrimination Act, 42 U.S.C. 2000e(k).

Hayes v. Shelby Memorial Hosp. , 726 F.2d 1543 (11th Cir. 1984); Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1984); Zuniga v. Kleberg County Hosp., 692 F.2d 986 (5th Cir. 1982).

42 USC 2000 e-2(e)(1).

“Policy Guidance on Fetal and Reproductive Hazards,” 2 EEOC Compl. Man. (CCH) Para. 4301–19. In light of the Johnson Controls decision the EEOC now believes that the analysis should be one of BFOQ and not business neccessity (see id. at Para. 4319).

Johnson Controls, Inc. v. Calif. Fair Employment and Hous. Comm'n and Foster. 218 Cal. App. 3d 517 (1990), petition for rev. denied (Cal. May 17, 1990) (No. S-014910).

Id. at 529.

Id. at 546 n. 14. It is interesting to note that while the California court found the child's exposure to lead could have been from post-natal environmental exposures, the Seventh Circuit accepted on faith that the child's lead exposure was due to the mother's occupational exposure while pregnant, and relied on this case as one of the justifications for Johnson Controls' exclusionary policy. See 886 F.2d at 877.

UAW v. Johnson Controls at 889–90 (emphasis supplied).

Id. at 919 (Easterbrook, J., dissenting).

Id.

Johnson Controls, Inc. v. FEHC and Foster at 537 (emphasis in original).

UAW v. Johnson Controls at 896.

See a discussion of the remoteness of the risk in Judge Easterbrook's dissent at 913.

UAW v. Johnson Controls, Inc. at 898 [quoting Torres v. Wis. Dept. of Health and Social Services, 859 F.2d 1523, 1528 (7th Cir. 1988) (citations omitted)].

Grant v. General Motors, 908 F.2d 1303 (6th Cir. 1990).

Johnson Controls, Inc. v. FEHC and Foster, supra.

Policy Guidance at Para. 4319.

Occupational Exposure to Lead, Preamble to the Final Standard, 43 Fed. Reg. 52960 (1978) (emphasis supplied). In setting the standard, OSHA rejected the lead industry's contention “that OSHA [was] not obligated to set a health standard which would insure equal employment for all persons.” Id.

See 50 Fed. Reg. 9401 (1985).

One should note that although nurses and child care workers are exposed routinely to acknowledged reproductive hazards, these hazards rarely are used to justify excluding women from these traditionally female-dominated and historically lower-paid jobs. See Silverstein M. “Introduction: When Science Doesn't Have All the Answers,” New Solutions 1 (1990): 10. See also Klitzman S. “A Women's Occupational Health Agenda for the 1990s,” New Solutions 1 (1990): 7,10.

Employers representatives already are considering legislative responses to potential Supreme Court holdings. These responses include limiting employers' liability for damage to a child resulting from a parents' workplace exposure.