Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, April 14, 1991 TAG: 9104160447
SECTION: EDITORIAL PAGE: B-3 EDITION: METRO
SOURCE: JAMES J. KILPATRICK
DATELINE: LENGTH: Medium
The opinion set off a jubilation chorus in the ranks of women's liberation. Ecstatic cries arose: This was the most significant judicial opinion in its field since Roe vs. Wade 18 years ago. The movement toward sexual equality had taken a quantum leap. Five justices had agreed that women have the same right that men have, to risk harm to their reproductive organs if they choose.
All right, hooray. To the extent that the opinion opens job opportunities for women working in jobs that involve radiation or chemical reaction, bully for the court. For one reason or another, in the name of a bona fide occupational qualification, women historically have been denied access to risky jobs that are open to men. All nine members of the high court agreed that such discrimination is unlawful.
The facts in the lead-battery case are not in dispute. Johnson Controls Inc. is a manufacturer of lead batteries. Prolonged exposure to lead creates a serious risk to the reproductive capacity of both men and women. For several years, the company formally warned women employees of this risk.
Then, in 1982, the company went beyond a warning. It instituted a policy prohibiting women "who are capable of having children" from working at stations of substantial risk.
In 1984 a group of employees went to court. They contended that the policy amounted to discrimination against women by reason of sex. Women were being denied promotions and higher wages because of the rule. Male employees were not similarly affected. The company policy, said the plaintiffs, violated both the basic Civil Rights Act of 1964 and the newer Pregnancy Discrimination Act of 1978.
The high court agreed. "The bias in Johnson Controls' policy is obvious," said Justice Harry Blackmun. Despite evidence about the adverse effects of lead exposure on the male reproductive system, the company was concerned "only with the harms that may befall the unborn offspring of its female employees." The law will not tolerate such patent discrimination.
Very well. Blackmun insisted that the court's opinion was "neither remarkable nor unprecedented," but in that assertion he was like the queen who did protest too much. This was indeed a remarkable decision, in part because it engenders civil wrongs in the name of expanding women's rights. The manufacturer in this case was not being paternal. It was not the compassion of the employer but the prudence of his lawyers that generated the offending policy. Johnson wasn't afraid of damaging a fetus; Johnson was afraid of being sued.
That quite reasonable apprehension will be enlarged by the court's opinion. Justice Byron White explained why:
"Common sense tells us that it is part of the normal operation of business concerns to avoid causing injury to third parties, as well as to employees, if for no other reason than to avoid tort liability and its substantial costs. This possibility of tort liability is not hypothetical; every state currently allows children born alive to recover in tort for prenatal injuries caused by third parties . . . .
"Warnings may preclude claims by injured employees, [but] they will not preclude claims by injured children because the general rule is that parents cannot waive causes of action on behalf of their children, and the parents' negligence will not be imputed to the children."
Justice Blackmun denied that the court had placed employers in an untenable position, but his denial lacked conviction. He said that as long as an employer "fully informs" a woman of a given risk, "the basis for holding an employer liable seems remote at best." Given the litigious nature of our society, the risk of liability is likely to strike an employer as very close at hand.
What we have here is Catch-22: If a company denies job opportunities on account of sex, it will get sued by an ambitious woman. If it accords equal opportunity, eventually it may be sued by a deformed child. These are not appealing alternatives.
Under these circumstances Congress could help by enacting a carefully fashioned law to protect employers, short of gross negligence, from the consequences of women's liberation. An employer ought not to be punished for doing what the high court commands. Universal Press Syndicate
by CNB