The boundaries of employment discrimination: Fetal protection policies and the bona fide occupational qualification

“ The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries) , Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy) , the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older) , and the Genetic Information Nondiscrimination Act. ”

“ A larger social life, intellectual opportunities and economic independence, these were the three inestimable advantages factory labor gave to women. But hand in hand with its advantages came the evils, evils that have persisted throughout the development of modern industry, until to-day they are recognized to be among the greatest of our social problems. Long hours, poor ventilation, dangerous machinery, the handling of poisonous substances, continuous standing, the nervous strain of speeding and other evils of factory labor have affected both men and women. ”

“ The Tendency of Evolution.—It is as yet impossible to predict the future course of development in this matter, and to foresee whether it will take the form of a further elaboration of motherhood insurance. This much only is certain, that all women will receive proper care in pregnancy, and during and after childbirth. From a certain stage in her pregnancy until a certain period after delivery, no woman will be allowed to work for wages. Women far advanced in pregnancy, during delivery, and throughout the lying-in period, will be cared for almost exclusively in institutions. ”

“ One of the chief social dangers of the age is the effect of industrial work upon the motherhood of the race. Surely, the first duty of society should be to secure healthy conditions for the lives of the young, so as to lay a firm physical foundation for the progress of the race.
This we neglect to do when we look with indifference or complacency upon the present phase of unrestricted competition in industrial work amongst women. ”

“ But they have affected women to a greater degree than men, because women are physically weaker than men and because motherhood is the natural, unalterable portion of womanhood. When work, not adapted to a woman's strength, has a detrimental influence upon her health, it is not only an injury to her as an individual, it is also an even greater injury to her as a potential mother and to her unborn children. Every physician who has patients among factory workers knows from personal experience in how many respects factory labor is injurious to the maternal functions of women. ”

“ Women deserve to be able to take time off to care for a new baby, an ailing parent, or take a sick day for themselves without running into hardship. So let’s make sure all Americans have access to paid family leave.
Pregnant workers deserve to be treated fairly. Even today, women can be fired for taking too many bathroom breaks, or forced on unpaid leave just for being pregnant. That’s wrong -- and we have to choose policies that ensure pregnant workers are treated with dignity and respect. ”

“ 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. ”

“ 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 (PDA) , 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." ”

“ Discrimination can occur on the basis of the sex, sexual orientation, gender identity, pregnancy, childbirth, or a related medical condition of an individual, as well as because of sex-based stereotypes. Each of these factors alone can serve as the basis for discrimination, and each is a form of sex discrimination. (2) A single instance of discrimination may have more than one basis. ”

“ In deciding as we do today, we do not traverse new ground. We have in the past confronted Title VII cases in which an employer has used an illegitimate criterion to distinguish among employees, and have held that it is the employer's burden to justify decisions resulting from that practice. When an employer has asserted that gender is a BFOQ within the meaning of § 703 (e) , for example, we have assumed that it is the employer who must show why it must use gender as a criterion in employment. ”

“ As these examples demonstrate, our assumption always has been that if an employer allows gender to affect its decisionmaking process, then it must carry the burden of justifying its ultimate decision. We have not in the past required women whose gender has proved relevant to an employment decision to establish the negative proposition that they would not have been subject to that decision had they been men, and we do not do so today. ”

“ 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 employment-related 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 . ”

“ Title VII forbids discrimination on the basis of sex, except "in those certain instances where . . . sex . . . 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) . For the fetal-protection policy involved in this case to be a BFOQ, therefore, the policy must be "reasonably necessary" to the "normal operation" of making batteries, which is Johnson Controls' "particular business." ”

“ 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. ”

“ 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. ”

“ We need not leave our common sense at the doorstep when we interpret a statute. It is difficult for us to imagine that, in the simple words "because of," Congress meant to obligate a plaintiff to identify the precise causal role played by legitimate and illegitimate motivations in the employment decision she challenges. We conclude, instead, that Congress meant to obligate her to prove that the employer relied upon sex-based considerations in coming to its decision. ”

“ No one contends, however, that sex must be the sole cause of a decision before there is a Title VII violation. This is a separate question from whether consideration of sex must be a cause of the decision. Under the accepted approach to causation that I have discussed, sex is a cause for the employment decision whenever, either by itself or in combination with other factors it made a difference to the decision. Discrimination need not be the sole cause in order for liability to arise, but merely a necessary element of the set of factors that caused the decision, i.e., a but-for cause. ”

“ According to Price Waterhouse, an employer violates Title VII only if it gives decisive consideration to an employee's gender, race, national origin, or religion in making a decision that affects that employee. On Price Waterhouse's theory, even if a plaintiff shows that her gender played a part in an employment decision, it is still her burden to show that the decision would have been different if the employer had not discriminated. In Hopkins' view, on the other hand, an employer violates the statute whenever it allows one of these attributes to play any part in an employment decision. ”

“ An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.
Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision. In making this showing, stereotyped remarks can certainly be evidence that gender played a part. ”

“ Reliance on such factors is exactly what the threat of Title VII liability was meant to deter. While the main concern of the statute was with employment opportunity, Congress was certainly not blind to the stigmatic harm which comes from being evaluated by a process which treats one as an inferior by reason of one's race or sex. This Court's decisions under the Equal Protection Clause have long recognized that whatever the final outcome of a decisional process, the inclusion of race or sex as a consideration within it harms both society and the individual. ”

“ 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. ”

“ The central point is this: while an employer may not take gender into account in making an employment decision (except in those very narrow circumstances in which gender is a BFOQ) , it is free to decide against a woman for other reasons. We think these principles require that, once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability [10] only by proving that it would have made the same decision even if it had not allowed gender to play such a role. ”

“ The employer has not yet been shown to be a violator, but neither is it entitled to the same presumption of good faith concerning its employment decisions which is accorded employers facing only circumstan ial evidence of discrimination. Both the policies behind the statute, and the evidentiary principles developed in the analogous area of causation in the law of torts, suggest that at this point the employer may be required to convince the factfinder that, despite the smoke, there is no fire. ”

“ On the contrary, a fetal-protection policy would be justified under the terms of the statute if, for example, an employer could show that exclusion of women from certain jobs was reasonably necessary to avoid substantial tort liability. 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. ”

“ Justice WHITE ignores the "essence of the business" test and so concludes that "protecting fetal safety while 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 217. By limiting its discussion to cost and safety concerns and rejecting the "essence of the business" test that our case law has established, he seeks to expand what is now the narrow BFOQ defense. ”

“ 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. ”

“ Even with a business-related requirement, an employer might assert some business reason as a pretext for a discriminatory objective. This possibility is especially great with a factor like prior salary which can easily be used to capitalize on the unfairly low salaries historically paid to women. ”

“ At one extreme are two that would tolerate all but the most blatant discrimination. Kouba asserts that Allstate wrongly reads "factor other than sex" to mean any factor that either does not refer on its face to an employee's gender or does not result in all women having lower salaries than all men. Since an employer could easily manipulate factors having a close correlation to gender as a guise to pay female employees discriminatorily low salaries, it would contravene the Act to allow their use simply because they also are facially neutral or do not produce complete segregation. ”

“ If the fetal-protection policy insists on a risk-avoidance level substantially higher than other risk levels tolerated by Johnson Controls such as risks to employees and consumers, the policy should not constitute a BFOQ. [10]
Second, even without more information about the normal level of risk at Johnson Controls, the fetal-protection policy at issue here reaches too far. This is evident both in its presumption that, absent medical documentation to the contrary, all women are fertile regardless of their age, see id., at 876, n. ”

“ If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations? (6/11/20)
Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children. ”