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A Bona Fide Occupational Qualification?Although the Court determined that JohnsonControls’ policy was discriminatory, it examinedwhether the policy fell within the exception inthe Civil Rights Act that allows an employer todiscriminate on the basis of “religion, sex, ornational origin in those certain instances wherereligion, sex, or national origin is a bona fideoccupational qualification reasonably necessaryto the normal operation of that particular businessor enterprise.” Johnson Controls argued thatits policy fits within the BFOQ exclusions forsafety reasons. The Court concluded such anexception is limited to those situations in whichgender or pregnancy interferes with theemployee’s ability to perform the job. The Courtnoted that fertile women can manufacturebatteries as well as other employees.The above-cited Pregnancy DiscriminationAct of 1978 provides that unless pregnantemployees differ from other employees “in theirability or inability to work,” theymust be “treated the same” asother employees. The Courtfurther stated that “[w]omen ascapable of doing their jobs astheir male counterparts may notbe forced to choose betweenhaving a child and having ajob.”The Court observed that“[d]ecisions about the welfare offuture children must be left to theparents who conceive, bear, support,and raise them, rather thanto the employers who hire thoseparents.”Holding The Court held that an employermay not exclude a female employee from certainemployment positions to protect the health of afetus if the woman should become pregnant. Sucha policy constitutes sexual discriminationprohibited by the Civil Rights Act of 1964, asamended by the Pregnancy Discrimination Actof 1978.The Court also explained that Johnson Controlswould not likely be held liable for potentialfetal injuries or defects of the children of its femaleemployees. As long as an employer informsemployees of a potential risk, it has not acted negligently.Any actions on the part of Johnson Controlsto avoid hiring women because of fear ofliability, therefore, would not be justified.1. What was the purpose of Johnson Controls’policy of excluding women from employmentpositions that would expose them to lead?2. On what two federal acts did the SupremeCourt base its decision that Johnson Controls’fetal protection policy constituted unlawfulsexual discrimination?3. Did it matter that Johnson Controls possessedgood intentions when it implemented its fetalprotection policy?4. In what instances is an employer permitted todiscriminate against employees based ongender?5. Give an example of a situation wherein anemployer may discriminate based on gender.Go to the Understanding Business and Personal Law Web site at ubpl.glencoe.comfor information about how to access online resources for the Landmark Cases.Chapter 21: Employment Protection and Equal Opportunity 479