INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et al. v. JOHNSON CONTROLS, INC.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
Justice Blackmun delivered the opinion of the Court.
In this case we are concerned with an employer's genderbased fetal-protection policy. 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?
Respondent Johnson Controls, Inc., manufactures batteries. In the manufacturing process, the element lead is a primary ingredient. Occupational exposure to lead entails health risks, including the risk of harm to any fetus carried by a female employee.
Before the Civil Rights Act of 1964, 78 Stat. 241, became law, Johnson Controls did not employ any woman in a battery-manufacturing job. In June 1977, however, it announced its first official policy concerning its employment of women in lead-exposure work:
"[P]rotection of the health of the unborn child is the immediate and direct responsibility of the prospective parents. While the medical profession and the company can support them in the exercise of this responsibility, it cannot assume it for them without simultaneously infringing their rights as persons.
. . . . .
". . . . Since not all women who can become mothers wish to become mothers (or will become mothers), it would appear to be illegal discrimination to treat all who are capable of pregnancy as though they will become pregnant." App. 140.
Consistent with that view, Johnson Controls "stopped short of excluding women capable of bearing children from lead exposure," id., at 138, but emphasized that a woman who expected to have a child should not choose a job in which she would have such exposure. The company also required a woman who wished to be considered for employment to sign a statement that she had been advised of the risk of having a child while she was exposed to lead. The statement informed the woman that although there was evidence "that women exposed to lead have a higher rate of abortion," this evidence was "not as clear . . . as the relationship between cigarette smoking and cancer," but that it was, "medically speaking, just good sense not to run that risk if you want children and do not want to expose the unborn child to risk, however small . . . ." Id., at 142-143.
Five years later, in 1982, Johnson Controls shifted from a policy of warning to a policy of exclusion. Between 1979 and 1983, eight employees became pregnant while maintaining blood lead levels in excess of 30 micrograms per deciliter. Tr. of Oral Arg. 25, 34. This appeared to be the critical level noted by the Occupational Health and Safety Administration (OSHA) for a worker who was planning to have a family. See 29 CFR 1910.1025 (1989). The company responded by announcing a broad exclusion of women from jobs that exposed them to lead:
". . . [I]t is [Johnson Controls'] policy that women who are pregnant or who are capable of bearing children will not be placed into jobs involving lead exposure or which could expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights." App. 85-86.
The policy defined "women . . . capable of bearing children" as "[a]ll women except those whose inability to bear children is medically documented." Id., at 81. It further stated that an unacceptable work station was one where, "over the past year," an employee had recorded a blood lead level of more than 30 micrograms per deciliter or the work site had yielded an air sample containing a lead level in excess of 30 micrograms per cubic meter. Ibid.
In April 1984, petitioners 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 of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000eetseq. Among the individual plaintiffs were petitioners 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. Upon stipulation of the parties, the District Court certified a class consisting of "all past, present and future production and maintenance employees" in United Auto Workers bargaining units at nine of Johnson Controls' plants "who have been and continue to be affected by [the employer's] Fetal Protection Policy implemented in 1982." Order of Feb. 25, 1985.
The District Court granted summary judgment for defendant-respondent Johnson Controls. 680 F. Supp. 309 (1988). Applying a three-part business necessity defense derived from fetal-protection cases in the Courts of Appeals for the Fourth and Eleventh Circuits, the District Court concluded that while "there is a disagreement among the experts regarding the effect of lead on the fetus," the hazard to the fetus through exposure to lead was established by "a considerable body of opinion"; that although "[e]xpert opinion has been provided which holds that lead also affects the reproductive abilities of men and women . . . [and] that these effects are as great as the effects of exposure of the fetus . . . a great body of experts are of the opinion that the fetus is more vulnerable to levels of lead that would not affect adults"; and that petitioners had "failed to establish that there is an acceptable alternative policy which would protect the fetus." Id., at 315-316. The court stated that, in view of this disposition of the business necessity defense, it did not "have to undertake a bona fide occupational qualification's (BFOQ) analysis." Id., at 316, n. 5.
The Court of Appeals for the Seventh Circuit, sitting en banc, affirmed the summary judgment by a 7-to-4 vote. 886 F. 2d 871 (1989). The majority held that the proper standard for evaluating the fetal-protection policy was the defense of business necessity; that Johnson Controls was entitled to summary judgment under that defense; and that even if the proper standard was a BFOQ, Johnson Controls still was entitled to summary judgment.
The Court of Appeals, see id., at 883-885, first reviewed fetal-protection opinions from the Eleventh and Fourth Circuits. See Hayes v. Shelby Memorial Hospital, 726 F. 2d 1543 (CA11 1984), and Wright v. Olin Corp., 697 F. 2d 1172 (CA4 1982). Those opinions established the three-step business necessity inquiry: whether there is a substantial health risk to the fetus; whether transmission of the hazard to the fetus occurs only through women; and whether there is a less discriminatory alternative equally capable of preventing the health hazard to the fetus. 886 F. 2d, at 885. The Court of Appeals agreed with the Eleventh and Fourth Circuits that "the components of the business necessity defense the courts of appeals and the EEOC have utilized in fetal protection cases balance the interests of the employer, the employee and the unborn child in a manner consistent with Title VII." Id., at 886. The court further noted that, under Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), the burden of persuasion remained on the plaintiff in challenging a business necessity defense, and — unlike the Fourth and Eleventh Circuits — it thus imposed the burden on the plaintiffs for all three steps. 886 F. 2d, at 887-893. Cf. Hayes, 726 F. 2d, at 1549, and Wright, 697 F. 2d, at 1187.
Applying this business necessity defense, the Court of Appeals ruled that Johnson Controls should prevail. Specifically, the court concluded that there was no genuine issue of material fact about the substantial health-risk factor because the parties agreed that there was a substantial risk to a fetus from lead exposure. 886 F. 2d, at 888-889. The Court of Appeals also concluded that, unlike the evidence of risk to the fetus from the mother's exposure, the evidence of risk from the father's exposure, which petitioners presented, "is, at best, speculative and unconvincing." Id., at 889. Finally, the court found that petitioners had waived the issue of less discriminatory alternatives by not adequately presenting it. It said that, in any event, petitioners had not produced evidence of less discriminatory alternatives in the District Court. Id., at 890-893.
Having concluded that the business necessity defense was the appropriate framework and that Johnson Controls satisfied that standard, the court proceeded to discuss the BFOQ defense and concluded that Johnson Controls met that test, too. Id., at 893-894. The en banc majority ruled that industrial safety is part of the essence of respondent's business, and that the fetal-protection policy is reasonably necessary to further that concern. Quoting Dothard v. Rawlinson, 433 U.S. 321, 335 (1977), the majority emphasized that, in view of the goal of protecting the unborn, "more is at stake" than simply an individual woman's decision to weigh and accept the risks of employment. 886 F. 2d, at 898.
Judges Cudahy and Posner dissented and would have reversed the judgment and remanded the case for trial. Judge Cudahy explained: "It may (and should) be difficult to establish a BFOQ here but I would afford the defendant an opportunity to try." Id., at 901. "[T]he BFOQ defense need not be narrowly limited to matters of worker productivity, product quality and occupational safety." Id., at 901, n. 1. He concluded that this case's "painful complexities are manifestly unsuited for summary judgment." Id., at 902.
Judge Posner stated: "I think it is a mistake to suppose that we can decide this case once and for all on so meager a record." Ibid. He, too, emphasized that, under Title VII, a fetal-protection policy which explicitly applied just to women could be defended only as a BFOQ. He observed that Title VII defines a BFOQ defense as a "bona fide occupational qualification reasonably necessary to the normal operation" of a business, and that "the `normal operation' of a business encompasses ethical, legal, and business concerns about the effects of an employer's activities on third parties." Id., at 902 and 904. He emphasized, however, that whether a particular policy is lawful is a question of fact that should ordinarily be resolved at trial. Id., at 906. Like Judge Cudahy, he stressed that "it will be the rare case where the lawfulness of such a policy can be decided on the defendant's motion for summary judgment." Ibid.
Judge Easterbrook, also in dissent and joined by Judge Flaum, agreed with Judges Cudahy and Posner that the only defense available to Johnson Controls was the BFOQ. He concluded, however, that the BFOQ defense would not prevail because respondent's stated concern for the health of the unborn was irrelevant to the operation of its business under the BFOQ. He also viewed the employer's concern as irrelevant to a woman's ability or inability to work under the Pregnancy Discrimination Act's amendment to Title VII, 92 Stat. 2076, 42 U.S.C. 2000e(k). Judge Easterbrook also stressed what he considered the excessive breadth of Johnson Controls' policy. It applied to all women (except those with medical proof of incapacity to bear children) although most women in an industrial labor force do not become pregnant, most of those who do become pregnant will have blood lead levels under 30 micrograms per deciliter, and most of those who become pregnant with levels exceeding that figure will bear normal children anyway. 886 F. 2d, at 912-913. "Concerns about a tiny minority of women cannot set the standard by which all are judged." Id., at 913.
With its 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. We granted certiorari, 494 U. S. 1055 (1990), to resolve the obvious conflict between the Fourth, Seventh, and Eleventh Circuits on this issue, and to address the important and difficult question whether an employer, seeking to protect potential fetuses, may discriminate against women just because of their ability to become pregnant. [n.1]
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. Section 703(a) of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U.S.C. 2000e-2(a), prohibits sexbased classifications in terms and conditions of employment, in hiring and discharging decisions, and in other employment decisions that adversely affect an employee's status. [n.2] Respondent's fetal-protection policy explicitly discriminates against women on the basis of their sex. The policy excludes women with childbearing capacity from lead-exposed jobs and so creates a facial classification based on gender. Respondent assumes as much in its brief before this Court. Brief for Respondent 17, n. 24.
Nevertheless, the Court of Appeals assumed, as did the two appellate courts who already had confronted the issue, that sex-specific fetal-protection policies do not involve facial discrimination. 886 F. 2d, at 886-887; Hayes, 726 F. 2d, at 1547; Wright, 697 F. 2d, at 1190. These courts analyzed the policies as though they were facially neutral, and had only a discriminatory effect upon the employment opportunities of women. Consequently, the courts looked to see if each employer in question had established that its policy was justified as a business necessity. The business necessity standard is more lenient for the employer than the statutory BFOQ defense. The Court of Appeals here went one step further and invoked the burden-shifting framework set forth in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), thus requiring petitioners to bear the burden of persuasion on all questions. 886 F. 2d, at 887-888. The court assumed that because the asserted reason for the sex-based exclusion (protecting women's unconceived offspring) was ostensibly benign, the policy was not sex-based discrimination. That assumption, however, was incorrect.
First, Johnson Controls' policy classifies on the basis of gender and childbearing capacity, rather than fertility alone. Respondent does not seek to protect the unconceived children of all its employees. Despite evidence in the record about the debilitating effect of lead exposure on the male reproductive system, Johnson Controls is concerned only with the harms that may befall the unborn offspring of its female employees. Accordingly, it appears that Johnson Controls would have lost in the Eleventh Circuit under Hayes because its policy does not "effectively and equally protec[t] the offspring of all employees." 726 F. 2d, at 1548. This Court faced a conceptually similar situation in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), and found sex discrimination because the policy established "one hiring policy for women and another for men — each having pre-school-age children." Id., at 544. Johnson Controls' policy is facially discriminatory because it requires only a female employee to produce proof that she is not capable of reproducing.
Our conclusion is bolstered by the Pregnancy Discrimination Act of 1978 (PDA), 92 Stat. 2076, 42 U.S.C. 2000e(k), in which Congress explicitly provided that, for purposes of Title VII, discrimination "on the basis of sex" includes discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." [n.3] "The Pregnancy Discrimination Act has now made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex." Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983). In its use of the words "capable of bearing children" in the 1982 policy statement as the criterion for exclusion, Johnson Controls explicitly classifies on the basis of potential for pregnancy. Under the PDA, such a classification must be regarded, for Title VII purposes, in the same light as explicit sex discrimination. Respondent has chosen to treat all its female employees as potentially pregnant; that choice evinces discrimination on the basis of sex.
We concluded above that Johnson Controls' policy is not neutral because it does not apply to the reproductive capacity of the company's male employees in the same way as it applies to that of the females. Moreover, the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination. In Martin Marietta, supra, the motives underlying the employers' express exclusion of women did not alter the intentionally discriminatory character of the policy. Nor did the arguably benign motives lead to consideration of a business necessity defense. The question in that case was whether the discrimination in question could be justified under 703(e) as a BFOQ. 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.
The enforcement policy of the Equal Employment Opportunity Commission accords with this conclusion. On January 24, 1990, the EEOC issued a Policy Guidance in the light of the Seventh Circuit's decision in the present case. App. to Pet. for Cert. 127a. The document noted: "For the plaintiff to bear the burden of proof in a case in which there is direct evidence of a facially discriminatory policy is wholly inconsistent with settled Title VII law." Id., at 133a. The Commission concluded: "[W]e now think BFOQ is the better approach." Id., at 134a.
In sum, Johnson Controls' policy "does not pass the simple test of whether the evidence shows `treatment of a person in a manner which but for that person's sex would be different.' " Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 711 (1978), quoting Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1170 (1971). We hold that Johnson Controls' fetal-protection policy is sex discrimination forbidden under Title VII unless respondent can establish that sex is a "bona fide occupational qualification."
Under 703(e)(1) of Title VII, an employer may discriminate on the basis of "religion, sex, or national origin in those certain instances where religion, sex, or national origin 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). We therefore turn to the question whether Johnson Controls' fetal-protection policy is one of those "certain instances" that come within the BFOQ exception.
The BFOQ defense is written narrowly, and this Court has read it narrowly. See, e. g., Dothard v. Rawlinson, 433 U.S. 321, 332-337 (1977); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 122-125 (1985). We have read the BFOQ language of 4(f) of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 603, as amended, 29 U.S.C. 623(f)(1), which tracks the BFOQ provision in Title VII, just as narrowly. See Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985). Our emphasis on the restrictive scope of the BFOQ defense is grounded on both the language and the legislative history of 703.
The wording of the BFOQ defense contains several terms of restriction that indicate that the exception reaches only special situations. The statute thus limits the situations in which discrimination is permissible to "certain instances" where sex discrimination is "reasonably necessary" to the "normal operation" of the "particular" business. Each one of these terms — certain, normal, particular — prevents the use of general subjective standards and favors an objective, verifiable requirement. But the most telling term is "occupational"; this indicates that these objective, verifiable requirements must concern job-related skills and aptitudes.
The concurrence defines "occupational" as meaning related to a job. Post, at 2, n. 1. According to the concurrence, any discriminatory requirement imposed by an employer is "job-related" simply because the employer has chosen to make the requirement a condition of employment. In effect, the concurrence argues that sterility may be an occupational qualification for women because Johnson Controls has chosen to require it. This reading of "occupational" renders the word mere surplusage. "Qualification" by itself would encompass an employer's idiosyncratic requirements. By modifying "qualification" with "occupational," Congress narrowed the term to qualifications that affect an employee's ability to do the job.
Johnson Controls argues that its fetal-protection policy falls within the so-called safety exception to the BFOQ. Our cases have stressed that discrimination on the basis of sex because of safety concerns is allowed only in narrow circumstances. In Dothard v. Rawlinson, this Court indicated that danger to a woman herself does not justify discrimination. 433 U. S., at 335. We there allowed the employer to hire only male guards in contact areas of maximum-security male penitentiaries only because more was at stake than the "individual woman's decision to weigh and accept the risks of employment." Ibid. We found sex to be a BFOQ inasmuch as the employment of a female guard would create real risks of safety to others if violence broke out because the guard was a woman. Sex discrimination was tolerated because sex was related to the guard's ability to do the job — maintaining prison security. We also required in Dothard a high correlation between sex and ability to perform job functions and refused to allow employers to use sex as a proxy for strength although it might be a fairly accurate one.
Similarly, some courts have approved airlines' layoffs of pregnant flight attendants at different points during the first five months of pregnancy on the ground that the employer's policy was necessary to ensure the safety of passengers. See Harriss v. Pan American World Airways, Inc., 649 F. 2d 670 (CA9 1980); Burwell v. Eastern Air Lines, Inc., 633 F. 2d 361 (CA4 1980), cert. denied, 450 U.S. 965 (1981); Condit v. United Air Lines, Inc., 558 F. 2d 1176 (CA4 1977), cert. denied, 435 U.S. 934 (1978); In re National Airlines, Inc., 434 F. Supp. 249 (SD Fla. 1977). In two of these cases, the courts pointedly indicated that fetal, as opposed to passenger, safety was best left to the mother. Burwell, 633 F. 2d, at 371; National Airlines, 434 F. Supp., at 259.
We considered safety to third parties in Western Airlines, Inc. v. Criswell, supra, in the context of the ADEA. We focused upon "the nature of the flight engineer's tasks," and the "actual capabilities of persons over age 60" in relation to those tasks. 472 U. S., at 406. Our safety concerns were not independent of the individual's ability to perform the assigned tasks, but rather involved the possibility that, because of age-connected debility, a flight engineer might not properly assist the pilot, and might thereby cause a safety emergency. Furthermore, although we considered the safety of third parties in Dothard and Criswell, those third parties were indispensable to the particular business at issue. In Dothard, the third parties were the inmates; in Criswell, the third parties were the passengers on the plane. We stressed that in order to qualify as a BFOQ, a job qualification must relate to the "essence," Dothard, 433 U. S., at 333, or to the "central mission of the employer's business," Criswell, 472 U. S., at 413.
The concurrence ignores the "essence of the business" test and so concludes that "the safety to fetuses in carrying out the duties of battery manufacturing is as much a legitimate concern as is safety to third parties in guarding prisons (Dothard) or flying airplanes (Criswell)." Post, at 6. By limiting its discussion to cost and safety concerns and rejecting the "essence of the business" test that our case law has established, the concurrence seeks to expand what is now the narrow BFOQ defense. Third-party safety considerations properly entered into the BFOQ analysis in Dothard and Criswell because they went to the core of the employee's job performance. Moreover, that performance involved the central purpose of the enterprise. Dothard, 433 U. S., at 335 ("The essence of a correctional counselor's job is to maintain prison security"); Criswell, 472 U. S., at 413 (the central mission of the airline's business was the safe transportation of its passengers). The concurrence attempts to transform this case into one of customer safety. 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. No one can disregard the possibility of injury to future children; the BFOQ, however, is not so broad that it transforms this deep social concern into an essential aspect of battery-making.
Our case law, therefore, makes clear that the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform the job. This approach is consistent with the language of the BFOQ provision itself, for it suggests that permissible distinctions based on sex must relate to ability to perform the duties of the job. Johnson Controls suggests, however, that we expand the exception to allow fetal-protection policies that mandate particular standards for pregnant or fertile women. We decline to do so. Such an expansion contradicts not only the language of the BFOQ and the narrowness of its exception but the plain language and history of the Pregnancy Discrimination Act.
The PDA's amendment to Title VII 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 employmentrelated purposes." 42 U.S.C. 2000e(k). This language clearly sets forth Congress' remedy for discrimination on the basis of pregnancy and potential pregnancy. Women who are either pregnant or potentially pregnant must be treated like others "similar in their ability . . . to work." Ibid. In other words, 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.
The concurrence asserts that the PDA did not alter the BFOQ defense. Post, at 7. The concurrence arrives at this conclusion by ignoring the second clause of the Act which states that "women affected by pregnancy, childbirth, or related medical conditions 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). Until this day, every Member of this Court had acknowledged that "[t]he second clause [of the PDA] could not be clearer: it mandates that pregnant employees `shall be treated the same for all employment-related purposes' as nonpregnant employees similarly situated with respect to their ability or inability to work." California Federal S. & L. Assn. v. Guerra, 479 U.S. 272, 297 (1987) (White, J., dissenting). The concurrence now seeks to read the second clause out of the Act.
The legislative history confirms what the language of the Pregnancy Discrimination Act compels. Both the House and Senate Reports accompanying the legislation indicate that this statutory standard was chosen to protect female workers from being treated differently from other employees simply because of their capacity to bear children. See Amending Title VII, Civil Rights Act of 1964, S. Rep. No. 95-331, pp. 4-6 (1977):
"Under this bill, the treatment of pregnant women in covered employment must focus not on their condition alone but on the actual effects of that condition on their ability to work. Pregnant women who are able to work must be permitted to work on the same conditions as other employees . . . .
. . . . .
". . . [U]nder this bill, employers will no longer be permitted to force women who become pregnant to stop working regardless of their ability to continue."
See also Prohibition of Sex Discrimination Based on Pregnancy, H. R. Rep. No. 95-948, pp. 3-6 (1978).
This history counsels against expanding the BFOQ to allow fetal-protection policies. The Senate Report quoted above states that employers may not require a pregnant woman to stop working at any time during her pregnancy unless she is unable to do her work. Employment late in pregnancy often imposes risks on the unborn child, see Chavkin, Walking a Tightrope: Pregnancy, Parenting, and Work, in Double Exposure 196, 196-202 (W. Chavkin ed. 1984), but Congress indicated that the employer may take into account only the woman's ability to get her job done. See Becker, From Muller v. Oregon to Fetal Vulnerability Policies, 53 U. Chi. L. Rev. 1219, 1255-1256 (1986). With the PDA, Congress made clear that the decision to become pregnant or to work while being either pregnant or capable of becoming pregnant was reserved for each individual woman to make for herself.
We conclude that the 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. We reiterate our holdings in Criswell and Dothard that an employer must direct its concerns about a woman's ability to perform her job safely and efficiently to those aspects of the woman's job-related activities that fall within the "essence" of the particular business. [n.4]
We have no difficulty concluding that Johnson Controls cannot establish a BFOQ. Fertile women, as far as appears in the record, participate in the manufacture of batteries as efficiently as anyone else. Johnson Controls' professed 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. Congress has mandated this choice through Title VII, as amended by the Pregnancy Discrimination Act. Johnson Controls has attempted to exclude women because of their reproductive capacity. Title VII and the PDA simply do not allow a woman's dismissal because of her failure to submit to sterilization.
Nor can concerns about the welfare of the next generation be considered a part of the "essence" of Johnson Controls' business. Judge Easterbrook in this case pertinently observed: "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." 886 F. 2d, at 913.
Johnson Controls argues that it must exclude all fertile women because it is impossible to tell which women will become pregnant while working with lead. This argument is somewhat academic in light of our conclusion that the company may not exclude fertile women at all; it perhaps is worth noting, however, that Johnson Controls has 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 involved." Weeks v. Southern Bell Tel. & Tel. Co., 408 F. 2d 228, 235 (CA5 1969), quoted with approval in Dothard, 433 U. S., at 333. Even on this sparse record, it is apparent that Johnson Controls is concerned about only a small minority of women. Of the eight pregnancies reported among the female employees, it has not been shown that any of the babies have birth defects or other abnormalities. The record does not reveal the birth rate for Johnson Controls' female workers but national statistics show that approximately nine percent of all fertile women become pregnant each year. The birthrate drops to two percent for blue collar workers over age 30. See Becker, 53 U. Chi. L. Rev., at 1233. Johnson Controls' fear of prenatal injury, no matter how sincere, does not begin to show that substantially all of its fertile women employees are incapable of doing their jobs.
A word about tort liability and the increased cost of fertile women in the workplace is perhaps necessary. One of the dissenting judges in this case expressed concern about an employer's tort liability and concluded that liability for a potential injury to a fetus is a social cost that Title VII does not require a company to ignore. 886 F. 2d, at 904-905. It is correct to say that Title VII does not prevent the employer from having a conscience. The statute, however, does prevent sex-specific fetal-protection policies. These two aspects of Title VII do not conflict.
More than 40 States currently recognize a right to recover for a prenatal injury based either on negligence or on wrongful death. See, e. g., Wolfe v. Isbell, 291 Ala. 327, 333-334, 280 So. 2d 758, 763 (1977); Simon v. Mullin, 34 Conn. Supp. 139, 147, 380 A. 2d 1353, 1357 (1977). See also Note, 22 Suffolk U. L. Rev. 747, 754-756, and nn. 54, 57, and 58 (1988) (listing cases). According to Johnson Controls, however, the company complies with the lead standard developed by OSHA and warns its female employees about the damaging effects of lead. It is worth noting that OSHA gave the problem of lead lengthy consideration and concluded that "there is no basis whatsoever for the claim that women of childbearing age should be excluded from the workplace in order to protect the fetus or the course of pregnancy." 43 Fed. Reg. 52952, 52966 (1978). See also id., at 54354, 54398. Instead, OSHA established a series of mandatory protections which, taken together, "should effectively minimize any risk to the fetus and newborn child." Id., at 52966. See 29 CFR 1910.125(k)(ii) (1989). Without negligence, it would be difficult for a court to find liability on the part of the employer. 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, the basis for holding an employer liable seems remote at best.
Although the issue is not before us, the concurrence observes that "it is far from clear that compliance with Title VII will preempt state tort liability." Post, at 3. The cases relied upon by the concurrence to support its prediction, however, are inapposite. For example, in California Federal S. & L. Assn. v. Guerra, 479 U.S. 272 (1987), we considered a California statute that expanded upon the requirements of the PDA and concluded that the statute was not pre-empted by Title VII because it was not inconsistent with the purposes of the federal statute and did not require an act that was unlawful under Title VII. Id., at 291-292. Here, in contrast, the tort liability that the concurrence fears will punish employers for complying with Title VII's clear command. When it is impossible for an employer to comply with both state and federal requirements, this Court has ruled that federal law pre-empts that of the States. See, e. g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963).
This Court faced a similar situation in Farmers Union v. WDAY, Inc., 360 U.S. 525 (1959). In WDAY, it held that 315(a) of the Federal Communications Act of 1934 barred a broadcasting station from removing defamatory statements contained in speeches broadcast by candidates for public office. It then considered a libel action which arose as a result of a speech made over the radio and television facilities of WDAY by a candidate for the 1956 senatorial race in North Dakota. It held that the statutory prohibition of censorship carried with it an immunity from liability for defamatory statements made by the speaker. To allow libel actions "would sanction the unconscionable result of permitting civil and perhaps criminal liability to be imposed for the very conduct the statute demands of the licensee." Id., at 531. It concluded:
"We are aware that causes of action for libel are widely recognized throughout the States. But we have not hesitated to abrogate state law where satisfied that its enforcement would stand `as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."' Id., at 535, quoting Bethlehem Steel Co. v. New York Labor Board, 330 U.S. 767, 773 (1947).
If state tort law furthers discrimination in the workplace and prevents employers from hiring women who are capable of manufacturing the product as efficiently as men, then it will impede the accomplishment of Congress' goals in enacting Title VII. Because Johnson Controls has not argued that it faces any costs from tort liability, not to mention crippling ones, the pre-emption question is not before us. We therefore say no more than that the concurrence's speculation appears unfounded as well as premature.
The tort-liability argument reduces to two equally unpersuasive propositions. First, Johnson Controls attempts to solve the problem of reproductive health hazards by resorting to an exclusionary policy. Title VII plainly forbids illegal sex discrimination as a method of diverting attention from an employer's obligation to police the workplace. Second, the spectre of an award of damages reflects a fear that hiring fertile women will cost more. The extra cost of employing members of one sex, however, does not provide an affirmative Title VII defense for a discriminatory refusal to hire members of that gender. See Manhart, 435 U. S., at 716-718, and n. 32. Indeed, in passing the PDA, Congress considered at length the considerable cost of providing equal treatment of pregnancy and related conditions, but made the "decision to forbid special treatment of pregnancy despite the social costs associated therewith." Arizona Governing Committee v. Norris, 463 U.S. 1073, 1084, n. 14 (1983) (opinion of Marshall, J.). See Price Waterhouse v. Hopkins, 490 U.S. 228 (1988).
We, of course, are 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. We merely reiterate our prior holdings that the incremental cost of hiring women cannot justify discriminating against them.
Our holding today that Title VII, as so amended, forbids sex-specific fetal-protection policies is neither remarkable nor unprecedented. Concern for a woman's existing or potential offspring historically has been the excuse for denying women equal employment opportunities. See, e. g., Muller v. Oregon, 208 U.S. 412 (1908). Congress in the PDA prohibited discrimination on the basis of a woman's ability to become pregnant. We do no more than hold that the Pregnancy Discrimination Act means what it says.
It is no more appropriate for the courts than it is for individual employers to decide whether a woman's reproductive role is more important to herself and her family than her economic role. Congress has left this choice to the womanas hers to make.
The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Can discrimination be legal? The short answer is yes. In this age of political correctness and an overabundance of litigation based on age and gender discrimination, don't you wonder if there are rules about the age of the pilot flying the airliner you're sitting in? Or whether the law permits certain restaurants to hire only female waitresses? Or why you don't see 80-year-old police officers running down the streets after purse-snatchers? These are some of the everyday instances in which we observe blatant discrimination, but it seems to make sense. So how can such discrimination be legal?
The above scenarios are examples of bona fide occupational qualifications (BFOQs). A BFOQ is a defense to acknowledged discrimination, usually based on the existence of a facially discriminatory policy, such as "individuals over the age of 50 shall not be hired as police officers." Title VII of the Civil Rights Act of 1964 permits you to discriminate on the basis of "religion, sex, or national origin in those instances in which religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise." This narrow exception has also been extended to age discrimination through the Age Discrimination in Employment Act. It does not, however, apply to race discrimination.
Whether a particular policy amounts to a BFOQ requires an analysis of the facts of each particular case. The Equal Employment Opportunity Commission (EEOC) has a list of BFOQs it recognizes. But just because a particular policy or rule doesn't appear on the EEO's list doesn't mean it can't be a BFOQ. This is ultimately a factual determination for the court or jury.
In determining whether a discriminatory policy constitutes a BFOQ, you must first look at the particular job and what it requires. You must then look at the discriminatory policy and determine if it's necessary to performing the job. For example, the Federal Aviation Administration has a rule that airline pilots may not serve as captains after reaching age 60. That rule is obviously based on the probability that a pilot's skills have deteriorated with age and that the safety of the crew and passengers depends most heavily on the captain. The rule pertains only to the position of captain and doesn't prevent pilots 60 years of age or older from serving as flight engineers because age isn't a BFOQ for that position.
In claiming the BFOQ defense, the employer has the burden of proving the discriminatory policy is a valid BFOQ. You must demonstrate "plainly and unmistakably" that your discriminatory employment practice meets the terms and spirit of the Title VII exception. In other words, you must demonstrate that a discriminatory practice is reasonably related to an essential operation of your business. There is no requirement that formal studies be conducted to ascertain the need for a BFOQ. Such a qualification can be demonstrated through expert witnesses, empirical data, or just plain common sense.
BFOQs in age discrimination claims
The courts have developed a two-step test for analyzing BFOQ defenses in dealing with policies that bar a certain age group from a job. You must show either (1) there is a substantial basis for believing that all or nearly all employees above a certain age lack the qualifications for the position in question or (2) that reliance on an age classification is necessary because it's highly impractical for you to ensure by individual testing that your employees will have the necessary qualifications for the job. These BFOQs usually apply to jobs that involve driving or flying or physically demanding jobs.
BFOQs in gender discrimination claims
While BFOQs related to gender discrimination don't have a specific two-step test, the analysis does require that the discriminatory practice be reasonably necessary to the normal operation of a particular business or enterprise. In other words, gender discrimination is valid only when the "essence" of the business operation would be undermined if the business eliminated its discriminatory policy.
For example, corrections facilities and mental institutions that maintain gender- segregated wards usually have rules requiring at least one staff member of the same gender as the patients to always be on duty. That policy was found to be a valid BFOQ because the privacy rights of the individual patients necessitated that a staff member of the same sex be available to assist them in using the restroom, showering, and disrobing. Another example would be the argument that the essence or identity of a restaurant is based on its exclusive employment of female bartenders and waitresses and the business would be undermined if it was forced to hire male bartenders and waiters.
Surprisingly, gender discrimination based on an employer''s concern for the safety of its female employees isn''t a recognized BFOQ. In one case, a battery manufacturer enacted a policy that prohibited pregnant women and women capable of bearing children from being placed in jobs involving lead exposure. The purpose of that rule was to protect against any risk of harm to fetuses that female employees might conceive. While the policy was well intended, it was found illegal because it wasn''t reasonably necessary to the normal production of batteries. To put it another way, fertile women were as efficient in manufacturing batteries as anyone else.
How effective is the BFOQ defense?
The BFOQ defense is very narrowly restricted to limited instances and shouldn''t be relied in most situations. In determining whether a discriminatory policy can be justified as a BFOQ, you must think about the nature of your business, the requirement of the specific job in question, and whether the discriminatory practice is necessary to preserving the normal operation and essence of your business. Would Hooters be Hooters if the person taking your drink order was a 300-pound man, or would it become a nondescript hamburger joint? Does the safe operation of a school bus reasonably require that the drivers be under age 65? Are drivers above that age more likely to get into accidents? Should male corrections officers in a female facility be limited to certain duties? Should police officers or firefighters be a certain age?
There is no single answer or test that can be applied to these various situations. Each situation must be examined individually, taking into account the many factors concerning the nature of the business, the goods or services to be provided, and the duties and responsibilities of the job in question.
Copyright 2002 M. Lee Smith Publishers LLC.
This article is an excerpt from Connecticut Employment Law Letter written by the law firm of Halloran & Sage. Connecticut Employment Law Letter should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney.