No. 89-1215

[March 20, 1991]

Justice White, with whom The Chief Justice and Justice Kennedy join, concurring in part and concurring in the judgment.

The Court properly holds that Johnson Controls' fetal protection policy overtly discriminates against women, and thus is prohibited by Title VII unless it falls within the bona fide occupational qualification (BFOQ) exception, set forth at 42 U.S.C. 2000e-2(e). The Court erroneously holds, however, that the BFOQ defense is so narrow that it could never justify a sex-specific fetal protection policy. I nevertheless concur in the judgment of reversal because on the record before us summary judgment in favor of Johnson Controls was improperly entered by the District Court and affirmed by the Court of Appeals.


In evaluating the scope of the BFOQ defense, the proper starting point is the language of the statute. Cf. Demarest v. Manspeaker, 498 U. S. 177 (1991); Board of Ed. of Westside Community Schools v. Mergens, 496 U. S. 226, 227 (1990) (slip op., at 7). 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." Although that is a difficult standard to satisfy, nothing in the statute's language indicates that it could never support a sex-specific fetal protection policy. [n.1]

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. 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, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 55 p. 368 (5th ed. 1984), and an increasing number of courts have recognized a right to recover even for prenatal injuries caused by torts committed prior to conception, see 3 F. Harper, F. James, & O. Gray, Law of Torts 18.3, pp. 677-678, n. 15 (2d ed. 1986).

The Court dismisses the possibility of tort liability by no more than speculating that if "Title VII bans sex-specific fetal-protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best." Ante, at 19. Such speculation will be small comfort to employers. First, it is far from clear that compliance with Title VII will pre-empt state tort liability, and the Court offers no support for that proposition. [n.2] Second, although warnings may preclude claims by injured employees, 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. [n.3] Finally, although state tort liability for prenatal injuries generally requires negligence, it will be difficult for employers to determine in advance what will constitute negligence. Compliance with OSHA standards, for example, has been held not to be a defense to state tort or criminal liability. See National Solid Wastes Management Assn. v. Killian, 918 F. 2d 671, 680, n. 9 (CA7 1990) (collecting cases); see also 29 U.S.C. 653(b)(4). Moreover, it is possible that employers will be held strictly liable, if, for example, their manufacturing process is considered "abnormally dangerous." See Restatement (Second) of Torts 869, comment b (1979).

Relying on Los Angeles Dept. of Water and Power v. Man hart, 435 U.S. 702 (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. 435 U. S., at 708, 716-717. We did not in that case address in any detail the nature of the BFOQ defense, and we certainly did not hold that cost was irrelevant to the BFOQ analysis. Rather, we merely stated in a footnote that "there has been no showing that sex distinctions are reasonably necessary to the normal operation of the Department's retirement plan." Id., at 716, n. 30. 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.

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. In Dothard v. Rawlinson, 433 U.S. 321 (1977), the Court held that being male was a BFOQ for "contact" guard positions in Alabama's maximum-security male penitentiaries. 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." Id., at 335-336. 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." Ibid. Under those circumstances, the Court observed that "it would be an oversimplification to characterize [the exclusion of women] as an exercise in `romantic paternalism.' Cf. Frontiero v. Richardson, 411 U.S. 677, 684." Id., at 335.

We revisited the BFOQ defense in Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985), this time in the context of the Age Discrimination in Employment Act of 1967 (ADEA). There, we endorsed the two-part inquiry for evaluating a BFOQ defense used by the Fifth Circuit Court of Appeals in Usery v. Tamiami Trail Tours, Inc., 531 F. 2d 224 (1976). First, the job qualification must not be "so peripheral to the central mission of the employer's business" that no discrimination could be " `reasonably necessary to the normal operation of the particular business.' " 472 U. S., at 413. Although safety is not such a peripheral concern, id., at 413, 419, [n.4] the inquiry " `adjusts to the safety factor' " — " `[t]he greater the safety factor, measured by the likelihood of harm and the probable severity of that harm in case of an accident, the more stringent may be the job qualifications,' " id., at 413 (quoting Tamiami, supra, at 236). Second, the employer must show either that all or substantially all persons excluded " ` "would be unable to perform safely and efficiently the duties of the job involved," ' " or that it is " ` "impossible or highly impractical" ' " to deal with them on an individual basis. 472 U. S., at 414 (quoting Tamiami, supra, at 235 (quoting Weeks v. Southern Bell Telephone & Telegraph Co., 408 F. 2d 228, 235 (CA5 1969))). 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." 472 U. S., at 419.

Dothard and Criswell make clear that avoidance of substantial safety risks to third parties is inherently part of both an employee's ability to perform a job and an employer's "normal operation" of its business. Indeed, in both cases, the Court approved the statement in Weeks v. Southern Bell Telephone & Telegraph Co., 408 F. 2d 228 (CA5 1969), that an employer could establish a BFOQ defense by showing that "all or substantially all women would be unable to perform safely and efficiently the duties of the job involved." Id., at 235 (emphasis added). See Criswell, 472 U. S., at 414; Dothard, supra, at 333. The Court's statement in this case that "the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform the job," ante, at 14, therefore adds no support to its conclusion that a fetal protection policy could never be justified as a BFOQ. On the facts of this case, for example, 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). [n.5]

Dothard and Criswell also confirm that costs are relevant in determining whether a discriminatory policy is reasonably necessary for the normal operation of a business. In Doth ard, the safety problem that justified exclusion of women from the prison guard positions was largely a result of inadequate staff and facilities. See 433 U. S., at 335. 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." Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989) (plurality opinion).

The Pregnancy Discrimination Act (PDA), 42 U.S.C. 2000e(k), contrary to the Court's assertion, ante, at 15, did not restrict the scope of the BFOQ defense. The PDA was only an amendment to the "Definitions" section of Title VII, 42 U.S.C. 2000e and did not purport to eliminate or alter the BFOQ defense. Rather, it merely clarified Title VII to make it clear that pregnancy and related conditions are included within Title VII's antidiscrimination provisions. As we have already recognized, "the purpose of the PDA was simply to make the treatment of pregnancy consistent with general Title VII principles." Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073, 1085, n. 14 (1983). [n.6]

This interpretation is confirmed by the PDA's legislative history. As discussed in Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678-679, and n. 17 (1983), the PDA was designed to overrule the decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), where the Court had held that "an exclusion of pregnancy from a disability benefits plan providing general coverage is not a genderbased discrimination at all." Id., at 136. The PDA thus "makes clear that it is discriminatory to treat pregnancyrelated conditions less favorably than other medical conditions." Newport News, supra, at 684. 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." S. Rep. No. 95-331, pp. 3-4 (1977) (emphasis added). Similarly, the House Report stated that "[p]regnancy-based distinctions will be subject to the same scrutiny on the same terms as other acts of sex discrimination proscribed in the existing statute." H. R. Rep. No. 95-948, p. 4 (1978) (emphasis added). [n.7]

In enacting the BFOQ standard, "Congress did not ignore the public interest in safety." Criswell, supra, at 419. The Court's narrow interpretation of the BFOQ defense in this case, however, means that an employer cannot exclude even pregnant women from an environment highly toxic to their fetuses. It is foolish to think that Congress intended such a result, and neither the language of the BFOQ exception nor our cases requires it. [n.8]


Despite my disagreement with the Court concerning the scope of the BFOQ defense, I concur in reversing the Court of Appeals because that court erred in affirming the District Court's grant of summary judgment in favor of Johnson Controls. First, the Court of Appeals erred in failing to consider the level of risk-avoidance that was part of Johnson Controls' "normal operation." Although the court did conclude that there was a "substantial risk" to fetuses from lead exposure in fertile women, 886 F. 2d 871, 879-883, 898 (CA7 1989), it merely meant that there was a high risk that some fetal injury would occur absent a fetal protection policy. That analysis, of course, fails to address the extent of fetal injury that is likely to occur. [n.9] 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. [n.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. 8, and in its exclusion of presumptively fertile women from positions that might result in a promotion to a position involving high lead exposure, id., at 877. There has been no showing that either of those aspects of the policy is reasonably necessary to ensure safe and efficient operation of Johnson Controls' battery-manufacturing business. Of course, these infirmities in the company's policy do not warrant invalidating the entire fetal protection program.

Third, it should be recalled that until 1982 Johnson Controls operated without an exclusionary policy, and it has not identified any grounds for believing that its current policy is reasonably necessary to its normal operations. Although it is now more aware of some of the dangers of lead exposure, id., at 899, it has not shown that the risks of fetal harm or the costs associated with it have substantially increased. Cf. Manhart, 435 U. S., at 716, n. 30, in which we rejected a BFOQ defense because the employer had operated prior to the discrimination with no significant adverse effects.

Finally, the Court of Appeals failed to consider properly petitioners' evidence of harm to offspring caused by lead exposure in males. The court considered that evidence only in its discussion of the business necessity standard, in which it focused on whether petitioners had met their burden of proof. 886 F. 2d, at 889-890. The burden of proving that a discriminatory qualification is a BFOQ, however, rests with the employer. See, e. g., Price Waterhouse, 490 U. S., at 248; Dothard, 433 U. S., at 333. Thus, the court should have analyzed whether the evidence was sufficient for petitioners to survive summary judgment in light of respondent's burden of proof to establish a BFOQ. Moreover, the court should not have discounted the evidence as "speculative," 886 F. 2d, at 889, merely because it was based on animal studies. We have approved the use of animal studies to assess risks, see Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607, 657, n. 64 (1980), and OSHA uses animal studies in establishing its lead control regulations, see United Steelworkers of America, AFL-CIO-CLC v. Marshall, 208 U. S. App. D. C. 60, 128, 647 F. 2d 1189, 1257, n. 97 (1980), cert. denied, 453 U.S. 913 (1981). It seems clear that if the Court of Appeals had properly analyzed that evidence, it would have concluded that summary judgment against petitioners was not appropriate because there was a dispute over a material issue of fact.

As Judge Posner observed below:

"The issue of the legality of fetal protection is as novel and difficult as it is contentious and the most sensible way to approach it at this early stage is on a case-by-case basis, involving careful examination of the facts as developed by the full adversary process of a trial. The record in this case is too sparse. The district judge jumped the gun. 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.

"But although the defendant did not present enough evidence to warrant the grant of summary judgment in its favor, there is no ground for barring it from presenting additional evidence at trial. Therefore it would be equally precipitate for us to direct the entry of judgment in the plaintiffs' favor . . . ." 886 F. 2d, at 908.


1 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." The issue, of course, is whether that qualification is "reasonably necessary to the normal operation" of Johnson Controls' business. It is telling that the Court offers no case support, either from this Court or the lower Federal Courts, for its interpretation of the word "occupational."

2 Cf. English v. General Electric Co., 496 U. S. — (1990) (state law action for intentional infliction of emotional distress not pre-empted by Energy Reorganization Act of 1974); California Federal Savings and Loan Assn. v. Guerra, 479 U.S. 272, 290-292 (1987) (state statute requiring the provision of leave and pregnancy to employees disabled by pregnancy not preempted by the PDA); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984) (state punitive damage claim not pre-empted by federal laws regulating nuclear power plants); Bernstein v. Aetna Life & Cas., 843 F. 2d 359, 364-365 (CA9 1988) ("It is well-established that Title VII does not preempt state common law remedies"); see also 42 U.S.C. 2000e-7.

3 See, e. g., In re Estate of Infant Fontaine, 128 N. H. 695, 700, 519 A. 2d 227, 230 (1986); Collins v. Eli Lilly Co., 116 Wis. 2d 166, 200, n. 14, 342 N. W. 2d 37, 53, n. 14 (1984), cert. denied, 469 U.S. 826 (1984); Doyle v. Bowdoin College, 403 A. 2d 1206, 1208, n. 3 (Me. 1979); Littleton v. Jordan, 428 S. W. 2d 472 (Tex. Civ. App. 1968); Fallaw v. Hobbs, 113 Ga. App. 181, 182-183, 147 S. E. 2d 517, 519 (1966); see also Restatement (Second) of Torts 488(1) (1965).

4 An example of a "peripheral" job qualification was in Diaz v. Pan American World Airways, Inc., 442 F. 2d 385 (CA5), cert. denied, 404 U.S. 950 (1971). There, the Fifth Circuit held that being female was not a BFOQ for the job of flight attendant, despite a determination by the trial court that women were better able than men to perform the "nonmechanical" functions of the job, such as attending to the passengers' psychological needs. The court concluded that such non-mechanical functions were merely "tangential" to the normal operation of the airline's business, noting that "[n]o one has suggested that having male stewards will so seriously affect the operation of an airline as to jeopardize or even minimize its ability to provide safe transportation from one place to another." 442 F. 2d, at 388.

5 I do not, as the Court asserts, ante, at 14, reject the "essence of the business" test. Rather, I merely reaffirm the obvious — that safety to third parties is part of the "essence" of most if not all businesses. Of course, the BFOQ inquiry " `adjusts to the safety factor.' " Criswell, 472 U. S., at 413 (quoting Tamiami, 531 F. 2d, at 236). As a result, more stringent occupational qualifications may be justified for jobs involving higher safety risks, such as flying airplanes. But a recognition that the importance of safety varies among businesses does not mean that safety is completely irrelevant to the essence of a job such as battery manufacturing.

6 Contrary to the Court's assertion, ante, at 15, neither the majority decision nor the dissent in California Federal S. & L. Assn. v. Guerra, 479 U.S. 272 (1987), is relevant to the issue whether the PDA altered the BFOQ standard for pregnancy-related discrimination. In that case, the Court held that the PDA did not preempt a state law requiring employers to provide leave and reinstatement to pregnant employees. The Court reasoned that the PDA was not intended to prohibit all employment practices that favor pregnant women. Id., at 284-290. The dissent disagreed with that conclusion, arguing that the state statute was preempted because the PDA's language that pregnant employees "shall be treated the same for all employment-related purposes" appeared to forbid preferential treatment of pregnant workers. Id., at 297-298. Obviously, the dispute in that case between the majority and the dissent was purely over what constituted discrimination under Title VII, as amended by the PDA, not over the scope of the BFOQ defense.

7 Even if the PDA did establish a separate BFOQ standard for pregnancy-related discrimination, if a female employee could only perform the duties of her job by imposing substantial safety and liability risks, she would not be "similar in [her] ability or inability to work" as a male employee, under the terms of the PDA. See 42 U.S.C. 2000e(k).

8 The Court's cramped reading of the BFOQ defense is also belied by the legislative history of Title VII, in which three examples of permissible sex discrimination were mentioned — a female nurse hired to care for an elderly woman, an all-male professional baseball team, and a masseur. See 110 Cong. Rec. 2718 (1964) (Rep. Goodell); id., at 7212-7213 (interpretive memorandum introduced by Sens. Clark and Case); id., at 2720 (Rep. Multer). In none of those situations would gender "actually interfer[e] with the employee's ability to perform the job," as required today by the Court, ante, at 14.

The Court's interpretation of the BFOQ standard also would seem to preclude considerations of privacy as a basis for sex-based discrimination, since those considerations do not relate directly to an employee's physical ability to perform the duties of the job. The lower federal courts, however, have consistently recognized that privacy interests may justify sexbased requirements for certain jobs. See, e. g., Fesel v. Masonic Home of Delaware, Inc., 447 F. Supp. 1346 (Del. 1978), aff'd, 591 F. 2d 1334 (CA3 1979) (nurse's aide in retirement home); Jones v. Hinds General Hospital, 666 F. Supp. 933 (SD Miss. 1987) (nursing assistant); Local 567 American Federation of State, County, and Municipal Employees, AFL-CIO v. Michigan Council 25, American Federation of State, County, and Municipal Employees, AFL-CIO, 635 F. Supp. 1010 (ED Mich. 1986) (mental health workers); Norwood v. Dale Maintenance System, Inc., 590 F. Supp. 1410 (ND Ill. 1984) (washroom attendant); Backus v. Baptist Medical Center, 510 F. Supp. 1191 (ED Ark. 1981), vacated as moot, 671 F. 2d 1100 (CA8 1982) (nursing position in obstetrics and gynecology department of hospital).

9 Apparently, between 1979 and 1983, only eight employees at Johnson Controls became pregnant while maintaining high blood lead levels, and only one of the babies born to this group later recorded an elevated blood lead level. See ante, at 2; 886 F. 2d, at 876-877.

10 It is possible, for example, that alternatives to exclusion of women, such as warnings combined with frequent bloodtestings, would sufficiently minimize the risk such that it would be comparable to other risks tolerated by Johnson Controls.