Fetal Protection Case Blurs Traditional Ideological Lines

AMERICANS widely agree that women should not be discriminated against in employment. Americans also widely agree that unborn children should not be harmed by the job at which their mothers are working.

What happens when these two rights appear to collide?

The US Supreme Court will deal with this question tomorrow when it hears United Auto Workers v. Johnson Controls Inc.

The United Auto Workers (UAW) union is representing a group of employees from Johnson Controls that has complained that the company violated federal anti-discrimination laws by barring all fertile women from making batteries.

The company holds that those jobs involve exposure to lead, and that its policy is necessary to protect unborn children. A federal appeals court upheld this position by a 7-to-4 vote.

Studies hold that exposure to lead is harmful to children - including those unborn - and potentially damaging to reproductive health.

Johnson's policy is ``clearly discrimination against women,'' says Suzanna Sherry, a University of Minnesota law professor. ``The question is whether it's justified.''

Most legal experts consider that because of its ramifications, the case is one of the three or four most important on the Supreme Court's agenda this term.

Legal consultant Bruce Fein says as many as 20 million jobs could be considered to be in the same category as the batterymaking jobs at Johnson Controls.

As it did in the lower courts, this case could divide justices along lines other than traditional liberal vs. conservative. For this reason, David Souter - who is to be sworn in today - may hold the crucial vote.

The ultimate verdict is not ``going to say too much about how [justices] feel about sex discrimination,'' says Prof. Lea Brilmayer of Yale Law School. ``This is a case where, no matter what you believe about sex discrimination, you can come down on either side.

``This is a case where you might care a lot about sex discrimination - but you might also care a lot about fetuses.... The women's community is very confused'' about what position to take in this instance.

The company argues that it adopted its policy because protecting unborn children from ``toxic manufacturing operations'' should prevail over ``gender equality in the workplace.''

Beyond the questions about fetal protection and sex discrimination lies the issue of the company's policy itself: Was a total bar too sweeping?

It was ``not really a clear indication of concern for the fetus because it applied to women beyond childbearing age,'' says John Powell, national legal director of the American Civil Liberties Union. One of the complainants in the case is a divorced 50-year-old woman.

In this case ``a lot turns on whether you believe in carrying out the literal wording of the statute,'' says Professor Brilmayer. ``If you do, you would say - there is sex discrimination and there is no good excuse for it.''

A justice taking that position would hold that the Johnson Controls rule is discriminatory, and that the firm must admit women to batterymaking jobs if they wanted them.

On the other hand, justices may decide decide the statute ``doesn't really mean that,'' and give a broader interpretation of the anti sex discrimination laws, Brilmayer says.

The statutes involved are the 1964 Civil Rights Act, which makes gender discrimination in the workplace illegal, and the 1978 Pregnancy Discrimination Act, which makes it illegal for an employer to bar pregnant women from jobs they are physically able to do.

Two ways already exist for Johnson Controls to protect both unborn children and women's right not to be discriminated against, Professor Sherry says.

One is to tell women that a risk exists in battery making, spell it out and ``leave it up to them.''

``Another possibility is to clean up the environment'' in the parts of the factories where batteries are made. Since lead is potentially health-threatening for adults as well as children, eliminate the threat altogether by finding different manufacturing methods?