Justices void rule limiting women on job Fetal protection from work hazards is ruled unjust

March 21, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court, in a women's rights ruling that may be as important and controversial as its abortion decision, gave women of childbearing age broad legal freedom yesterday to choose to work in hazardous jobs.

Companies, the court ruled 6-3, may not use their desire to protect the health or life of fetuses that might someday be born to their workers as a reason for barring fertile female employees from exposure to poisons or other job risks.

Singling out women for special on-the-job restrictions, even when doing so to try to assure fetuses' health, is a form of sex bias forbidden by federal law, the court declared in the main opinion written by Justice Harry A. Blackmun -- the justice who also wrote the court's basic abortion ruling in 1973.

Fetal safety, the court declared flatly, is not the kind of justification Congress has allowed for treating female workers of childbearing age differently on the job.

"Concern for a woman's existing or potential offspring historically has been the excuse for denying women equal employment opportunities," Justice Blackmun wrote. But, he said, Congress put a stop to that by passing laws in 1964 and 1978.

Yesterday's ruling marked the first time the court had ever ruled on a direct attempt to protect fetuses by limiting women's rights.

"The decision prevents as many as 20 million jobs from becoming sex-segregated and shut off to women," said Alison Wetherfield, legal director of the National Organization for Women's Legal Defense Fund. Judith L. Lichtman, president of the Women's Legal Defense Fund, hailed the decision as a clear victory in "one of the most important cases for workers that the court has ever handed down."

A group that favors fetal rights, Americans United for Life, said that the ruling "doesn't bode well for a child who could be conceived in risky circumstances." Spokeswoman Wendy Stone added that fetal-protection policies were not designed to threaten fertile women but to protect "a child already conceived."

A business group, the National Association of Manufacturers, lambasted the ruling. It "leaves employers with a difficult choice: Continue operations knowing of unavoidable risk to the unborn, or cease doing business altogether," according to NAM deputy general counsel Quentin Riegel.

The ruling was based solely on the court's interpretation of the 1964 civil rights law's ban on sex bias in the workplace and a 1978 law's ban on discrimination against female workers on the basis of pregnancy.

Thus, the decision says nothing about whether women have a constitutional right to work in hazardous jobs that might pose a risk to fetuses they may carry, and nothing about whether women have a constitutional right not to have their lives regulated during pregnancy to protect fetuses. No constitutional issue was at stake in the ruling.

Justice Blackmun, who read portions of his opinion in a quiet, even tone in a hushed courtroom, declared, "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 woman as hers to make."

Justice Blackmun's opinion was supported in full by four other justices. Justice David H. Souter, who became a member of the court one day before the case was heard last fall, joined the Blackmun opinion. This was his first significant vote as a justice on any issue of women's rights. His views in that area were the only major issue the Senate raised against him last fall during confirmation hearings.

Justice Sandra Day O'Connor, the only woman on the court, also joined the decision, as did two liberal justices, Thurgood Marshall and John Paul Stevens. A sixth justice, Antonin Scalia, went along with most of the decision but noted his "reservations" about its breadth.

Three conservatives -- Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Byron R. White -- filed what amounted to a dissent to the scope and content of the Blackmun opinion. Those three, however, did agree with the other justices that the particular fetal-protection program at issue was illegal and had to be struck down.

The case involved an auto battery manufacturer's flat ban on any fertile woman on its payroll from holding any job involving exposure to more than a minimal amount of lead. Battery-makers have found no way to do without lead -- a potential source of poisoning that threatens the health of adults and fetuses.

The decision does not mean that employers are forbidden to take steps to assure workplace safety, or to minimize exposure to hazardous substances or operations. Employers, in fact, have a duty under federal and state law to assure workplace safety and run legal risks if they do not do so.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.