Batteries, Babies, and Discrimination: Congress changes the meaning of “sex”

Johnson Controls manufactured batteries, which exposed its factory workers to lead.  From 1982 to 1991, Johnson Controls specifically excluded women capable of becoming pregnant from working in any position requiring exposure to lead citing concern for the women’s future, potential, unborn children.  Johnson Controls did not apply this exclusion to men of childbearing age.  A class of women challenged Johnson Controls’ policy, arguing that the policy discriminated against women on the basis of sex and violated Title VII of the Civil Rights Act of 1964.

Johnson Controls’ policy is arguably understandable if the point of the policy was to protect women and their potential children. Any such concern for Johnson Controls’ female employees’ reproductive health did not make this policy legal, however, and in 1991, the Supreme Court found this policy violated Title VII because it discriminated against women based solely on their sex.

Wait a minute…. when did discrimination based on sex extend to a woman’s unborn child?  Until 1978, the prohibition of discrimination based on a person’s sex meant just what it appears: an employer could not refuse to hire or decide to fire an employee just because, well, that employee happened to be a woman or a man.  But in 1978, “sex” took on a whole new meaning when Congress passed the Pregnancy Discrimination Act, which broadened the definition of “sex” to include pregnancy, childbirth, or related medical conditions. The Pregnancy Discrimination Act further requires that pregnant women be treated the same for all employment-related purposes as the employer would treat any other employee similar in his or her ability or inability to work.

So where does this leave employers?  The practical implication of Johnson Controls’ purported good intentions is that employers cannot make any decision based on sex, including decisions intended to protect either women or men.

For any questions regarding whether a workplace policy in your company discriminates based on sex, or for a review of potential policies affecting your employees, feel free to call the employment lawyers at Briskin, Cross & Sanford, LLC.

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