Byron White

“ The Court first took note of the actual conditions of the prison environment: "In a prison system where violence is the order of the day, where inmate access to guards is facilitated by dormitory living arrangements, where every institution is understaffed, and where a substantial portion of the inmate population is composed of sex offenders mixed at random with other prisoners, there are few visible deterrents to inmate assaults on women custodians." ”

“ Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978) , the Court contends that tort liability cannot justify a fetal-protection policy because the extra costs of hiring women is not a defense under Title VII. Ante, at 21. This contention misrepresents our decision in Manhart. There, we held that a requirement that female employees contribute more than male employees to a pension fund, in order to reflect the greater longevity of women, constituted discrimination against women under Title VII because it treated them as a class rather than as individuals. ”

“ We further noted that although Title VII does not contain a "cost-justification defense comparable to the affirmative defense available in a price discrimination suit," "no defense based on the total cost of employing men and women was attempted in this case." Id., at 716-717, and n. 32, 98 S.Ct., at 1379-1380, and n. 32.
Prior decisions construing the BFOQ defense confirm that the defense is broad enough to include considerations of cost and safety of the sort that could form the basis for an employer's adoption of a fetal-protection policy. ”

“ By affirming on this scanty basis we may be encouraging incautious employers to adopt fetal protection policies that could endanger the jobs of millions of women for minor gains in fetal safety and health. ”

“ It does not, however, alter the standards for employer defenses. The Senate Report, for example, stated that the PDA "defines sex discrimination, as proscribed in the existing statute, to include these physiological occurrences [pregnancy, childbirth, and related medical conditions] peculiar to women; it does not change the application of Title VII to sex discrimination in any other way." ”

“ If the cost of employing women could not be considered, the employer there should have been required to hire more staff and restructure the prison environment rather than exclude women. Similarly, in Criswell the airline could have been required to hire more pilots and install expensive monitoring devices rather than discriminate against older employees. The BFOQ statute, however, reflects "Congress' unwillingness to require employers to change the very nature of their operations." ”

“ We further observed that this inquiry properly takes into account an employer's interest in safety " [w] hen an employer establishes that a job qualification has been carefully formulated to respond to documented concerns for public safety, it will not be overly burdensome to persuade a trier of fact that the qualification is 'reasonably necessary' to safe operation of the business." ”

“ The Court also stressed that " [m] ore [was] at stake" than a risk to individual female employees: "The likelihood that inmates would assault a woman because she was a woman would pose a real threat not only to the victim of the assault but also to the basic control of the penitentiary and protection of its inmates and the other security personnel." ”

“ 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. ”

“ Notes
↑ The Court's heavy reliance on the word " 'occupational' " in the BFOQ statute, ante, at 12, is unpersuasive. Any requirement for employment can be said to be an occupational qualification, since "occupational" merely means related to a job. See Webster's Third New International Dictionary 1560 (1976) . Thus, Johnson Controls' requirement that employees engaged in battery manufacturing be either male or non-fertile clearly is an "occupational qualification." ”