Denying Women Hazardous Jobs

March 23, 1991

A U.S. Chamber of Commerce official said after the Supreme Court's second big anti-business decision of the term, "conservative doesn't mean pro-business." He's right. On this court (and this has been true for several years now), "conservative" often, perhaps usually, means "majoritarian." The court usually accepts what a majority of Congress or a majority of voters as represented by the presidency wants to do.

In the earlier case, the court allowed juries to continue to impose huge punitive damage awards. In the latest case, a battery company stopped allowing women of child-bearing age to hold certain jobs because the lead involved posed a threat of fetal harm. The argument was that the fetus deserved protection and that the company deserved protection from future damage suits by children whose mothers had been exposed to the lead. Women workers said that was sex discrimination.

In the Civil Rights Act (and in connection with this particular case the Pregnancy Discrimination Act), Congress has said explicitly that jobs could be reserved for one sex or the other only on the basis of an "ability to perform the job" standard. Congress and the courts have allowed for a few exceptions in clear cases of safety involving third parties and for bona fide occupational imperatives, but neither of those was at issue in this case.

The company involved offered no evidence that exposure to lead had harmed its female workers. Nor had it been hit with damage suits. Nor had it demonstrated that lead's effects had a different effect on women's reproductive health than men's. Yet it adopted fetal-protection policies.

Insofar as the battery company is concerned, the Supreme Court's decision was the right one. The court was unanimous about that. However, the opinion of the court, underwritten by only five of the nine justices, went further. It seems to us to say that whenever fertile women are treated differently than men, that is a violation of the law -- even if the danger posed to the fetus, other third parties and the company (in terms of damage suits) is proven to be much greater in the case of women workers than in the case of men. We agree with the four concurring justices that this goes too far.

As an appeals judge said of this case earlier, "The issue of fetal protection is as novel and difficult as it is contentious, and the most sensible way to approach it at this early stage is on a case-by-case basis." The Supreme Court's decision makes that approach unlikely.

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