Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, March 28, 1991 TAG: 9103280443
SECTION: EDITORIAL PAGE: A-14 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Medium
But American businesses have a long history of discriminating against women in the work place under the guise of protection for the "weaker sex." Last week, the U. S. Supreme Court - in one of the most important sex-discrimination cases in recent years - ruled that the practice must end.
The case involved Johnson Controls of Milwaukee, the nation's largest manufacturer of automobile batteries. Since 1982 it's been the company's policy to bar fertile women from higher-paying jobs involving exposure to high levels of lead, unless the women could produce medical evidence of sterility.
The policy even barred fertile women from jobs where they might be promoted to jobs with exposure to lead. Johnson's rationale was that pregnant women or those who might become pregnant should be protected from hazards that endanger a fetus.
But the court, in a 5-4 decision, said that a company's legitimate concerns about health risks and potential lawsuits are not justification for blatant discrimination. Writing the decision for the majority - which included the court's newest member, David H. Souter, and its only female member, Sandra Day O'Connor - Justice Harry A. Blackmun said a policy is obviously biased when "fertile men, but not fertile women, are given a choice as to whether they wish to risk their reproductive health for a particular job."
Indeed, the battery company had offered no evidence that exposure to lead had a different effect on women's reproductive systems than on men's. There was insufficient effort to make the work place safe for everyone. There was no offer to pay women the same high salary, in a safer job. The court's ruling certainly was valid with regard to this company and this case.
Still, there is a danger: that the decision will be read to suggest that pregnant women may never be treated differently from men, even if the danger posed to the fetus is proven to be much greater where women are concerned.
The ruling does not say that an unborn fetus has no rights to protection. Rather, it recognizes that it's primarily the pregnant woman's responsibility to avoid risks to a fetus. It suggests that intelligent women, given adequate information, can be expected to avoid those risks. It says they don't need a boss or a government to take such judgments out of their hands.
"Concern for a woman's existing or potential offspring historically has been the excuse for denying women equal employment opportunities," Blackmun wrote. He's right.
The court has reaffirmed a basic tenet of civil rights: What counts in the work place is the individual's ability to do the job; gender has nothing to do with it. That's good news for millions of working women. Even so, questions of fetal rights and fetal protection remain unanswered, and troubling.
by CNB