On the Edge: Johnson Controls Fetal Protection Policy

Johnson Controls, Inc. made batteries whose primary ingredient, lead, can harm a fetus. The company therefore required female employees to sign a statement which read: "that women exposed to lead have a higher rate of abortion . . . [ is] not as clear as the relationship between cigarette smoking and cancer . . . but medically speaking, [ it is] just good sense not to run that risk if you want children and do not want to expose your unborn child to risk, however small."

During the 4 years this policy was in effect, eight employees became pregnant while maintaining blood lead levels in excess of the 30 micrograms per deciliter that OSHA categorizes as critical for pregnant women. The company then announced a new policy:

Women who are pregnant or who are capable of bearing children will not be placed into jobs involving lead exposure or which would expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights. This policy defines women capable of bearing children as all women except those whose inability to bear children is medically documented.

Two years later, three Johnson Controls employees sued the company, claiming that the fetal protection policy was a form of sex discrimination because it applied to fertile women, but not fertile men. The three employees included Mary Craig, who claimed she had to have herself sterilized to avoid losing a job that involved lead exposure; Elsie Nason, a 50- year- old divorcee, who said she had experienced a wage decrease when she had to transfer out of a job in which she was exposed to lead; and Donald Penney, a man who said he was denied a leave of absence so that he could lower his lead level because he intended to become a father.

Johnson Controls stated that it had no intent to discriminate, but wanted to protect the health of unborn children and avoid the possibility of being sued by an employee for the injury or death of her fetus.