INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, ET AL., PETITIONERS V. JOHNSON CONTROLS,
INC.

   No. 89-1215

   In the Supreme Court of the United States

   October Term, 1989

   On Writ Of Certiorari To The United States Court Of Appeals For The
Seventh Circuit

   Brief For The United States And The Equal Employment Opportunity
Commission As Amici Curiae Supporting Petitioners

            TABLE OF CONTENTS
   Questions Presented
   Interest of amici curiae
   Statement
   Summary of argument
   Argument:
      I. The only available defense to a sex-based, facially
         discriminatory employment policy is the statutory bona fide
         occupational qualification defense
         A. The exclusion of fertile women from specified jobs
            constitutes sex-based discrimination
         B. The only available defense to explicit, gender-based
            discrimination is the statutory BFOQ defense
     II. It is possible for a sex-based, fetal protection policy to
         be justified as a BFOQ
         A. Nothing in the language or scope of the BFOQ provision
            precludes its use to defend a fetal protection policy
         B. An employer bears a rigorous burden to justify use of a
            sex-based, fetal protection policy
    III. The court of appeals misapplied the bona fide occupational
         qualification defense
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether, in a Title VII challenge to a gender-based fetal
protection policy, the bona fide occupational qualification defense,
rather than the business necessity defense, is the appropriate
standard for analyzing an employer's defense of such a policy.

   2. Whether the bona fide occupational qualification defense may
justify an employer's use of a gender-based fetal protection policy.

   3. Whether the court of appeals correctly applied the bona fide
occupational qualification defense.

                       INTEREST OF AMICI CURIAE

   This case presents important questions concerning the meaning and
application of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seq.  Both the Equal Employment Opportunity Commission (EEOC)
and the Attorney General have significant enforcement responsibilities
under the Act.  The United States, as the nation's largest employer,
is also subject to Title VII requirements.

                               STATEMENT

   1. Since its purchase of Globe Union in 1978, respondent has been
engaged in manufacturing batteries, a process which requires the use
of lead as a primary ingredient.  In 1977, in response to medical
evidence of risks to unborn children, Globe Union adopted a fetal
protection policy for lead exposure.  Pet. App. 2a-5a.  The policy
statement noted that Globe Union had "stopped short of excluding women
capable of bearing children from lead exposure," but it emphasized
that "those women who are working in lead exposure . . . and those
women who wish to be considered for employment (should) be advised
that there is risk, that we recommend not working in lead if they are
considering a family, and further that we ask them to sign a statement
that they have been advised of this risk." Id. at 5a.

   Five years later, in 1982, respondent adopted the fetal protection
policy at issue in this litigation;  it shifted from a policy of
warnings to a policy of exclusion.  /1/ Respondent announced its
policy that "women who are pregnant or who are capable of bearing
children will not be placed into jobs involving lead exposure or which
could expose them to lead through the exercise of job bidding,
bumping, transfer or promotion rights." Pet. App. 9a.  The policy
defines women capable of bearing children as "(a)ll women except those
whose inability to bear children is medically documented." Id. at 6a
n.8.  The policy further defines areas of lead exposure as areas in
which (1) a current employee has recorded a blood level of lead
exposure exceeding 30 micrograms per deciliter during the preceding
year, or (2) the work site has yielded an air sample during the past
year containing a lead level in excess of 30 micrograms per cubic
meter.  Id. at 5a.  The policy permits employees in areas of lead
exposure to keep their jobs if they are able to maintain certain blood
lead levels (id. at 6a n.9);  it contains no such option for new
hires.  Employees removed from a position because of excessive lead
levels are transferred to another job without loss of pay or benefits
(id. at 6a);  the policy provides no similar compensation, however,
for employees denied an opportunity to accept a job in lead exposure
environment.  /2/

   2. In April 1984, petitioners filed a class action challenging the
fetal protection policy as sex discrimination in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.  The
district court certified a class consisting of past, present, and
future production and maintenance employees in UAW bargaining units at
nine of respondent's plants who have been and continue to be affected
by respondent's fetal protection policy.  Pet. App. 103a.

   In January 1988, the district court granted respondent's motion for
summary judgment.  Applying a three-part business necessity defense
derived from fetal protection cases in the Fourth and Eleventh
Circuits, the court concluded that (1) although "there is a
disagreement among the experts regarding the effect of lead on the
fetus," the hazard to the fetus through exposure to lead was
established by "a considerable body of opinion" (Pet. App. 113a-114a);
 (2) although "(e)xpert opinion has been provided which holds that
lead also affects the reproductive abilities of men and women * * *
(and) that these effects are as great as the effects of exposure of
the fetus, * * * a great body of experts (is) of the opinion that the
fetus is more vulnerable at levels of lead that would not affect
adults" and "(m)en simply cannot expose a fetus to lead in the same
way women can" (id. at 115a, 117a);  and (3) petitioners had "failed
to establish that there is an acceptable alternative policy which
would protect the fetus." Id. at 116.  The court also observed that,
in view of this disposition of the business necessity defense, it did
not "have to undertake a bona fide occupational qualification() (BFOQ)
analysis." Id. at 116a n.5.  /3/

   3. In September 1989, the Seventh Circuit affirmed in an en banc
opinion.

   a. The majority held that (1) the proper standard for evaluating
the fetal protection policy was the business necessity defense;  (2)
respondent was entitled to summary judgment under the business
necessity defense;  and (3) even if the proper standard was a BFOQ,
respondent was entitled to summary judgment.  The court first reviewed
the fetal protection opinions from the Fourth and Eleventh Circuits.
/4/ Those opinions established a three-step business necessity defense
-- whether there is a substantial health risk to the unborn child;
whether transmission of the hazard to the unborn child occurs only
through women;  and whether there are no less discriminatory
alternatives equally capable of preventing the health hazard TO THE
FETUS> Pet. App. 25a.  The Seventh Circuit agreed that "the components
of the business necessity defense the courts of appeals and EEOC have
utilized in fetal protection cases balance the interests of the
employer, the employee, and the unborn child in a manner consistent
with Title VII." Id. at 27a-28a.  /5/ The court further noted that,
under Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 (1989), the
burden of persuasion always remains on the plaintiff in challenging a
business necessity defense, and -- unlike the Fourth and Eleventh
Circuits -- it thus imposed the burden on the plaintiffs for all three
steps.  Pet. App. 28a-31a.  Cf. Hayes v. Shelby Memorial Hospital, 726
F.2d 1543, 1549 (11th Cir. 1984);  Wright v. Olin Corp., 697 F.2d 1187
(4th Cir. 1982).

   Applying this business necessity defense, the court then concluded
that (1) there was no genuine issue of material fact on the
substantial health risk factor because the parties agreed that there
was a substantial health risk to an unborn child from lead exposure;
(2) unlike the evidence of risk to the unborn resulting from the
mother's exposure, petitioners' evidence of risk to the unborn from a
father's exposure was "speculative and unconvincing" (Pet. App. 34a);
and (3) petitioners had waived the issue of less discriminatory
alternatives by not adequately presenting it to the court of appeals.
On the last point, the court also concluded that, in any event,
petitioners had not produced evidence of less discriminatory
alternatives in the district court.  Id. at 32a-41a.

   Having concluded that the business necessity defense was the
appropriate framework and that respondent satisfied that standard, the
court went on to discuss the BFOQ defense and concluded that
respondent also met that test.  Pet. App. 42a-59a.  The en banc
majority concluded that industrial safety is part of the essence of
respondent's business, and that the fetal protection policy is
reasonably necessary to further that concern.  Quoting from Dothard v.
Rawlinson, 433 U.S. 321, 335 (1977), the majority emphasized that, in
view of the goal of protecting the unborn, "more is at stake" than
simply an individual woman's decision to weigh and accept the risks of
employment.  Pet. App. 51a.

   b. Judges Cudahy and Posner dissented and would have reversed and
remanded for trial.  Judge Cudahy explained that "(i)t may (and
should) be difficult to establish a BFOQ here but I would afford the
defendant an opportunity to try.  * * * (T)he BFOQ defense need not be
narrowly limited to matters of worker productivity, product quality
and occupational safety.  The employer may permissibly consider the
possible risks to (even potential) third parties in the normal course
of business decisionmaking.  However, the employer must demonstrate 'a
factual basis for believing that all or substantially all women would
be unable to perform safely (i.e., without inordinate risk to third
parties, including fetuses) and efficiently the duties of the job
involved.'" Pet. App. 60a & n.1.  He regarded a trial as necessary
because "substantial factual questions remain concerning whether
occupational exposure to lead presents a substantial risk to the
fetus, whether this risk is transmitted only through the pregnant
woman and whether less restrictive alternatives would adequately
safeguard the employer's interest in fetal health and safety." Ibid.

   Judge Posner similarly emphasized that, under Title VII, a fetal
protection policy which explicitly applies only to women can be
defended only as a BFOQ.  He also observed that Title VII defines the
defense as a "bona fide occupational qualification reasonably
necessary to the normal operation" of a business, and that "the
'normal operation' of a business encompasses ethical, legal, and
business concerns about the effects of an employer's activities on
third parties." Pet. App. 62a, 65a.  He emphasized, however, that
whether a particular policy is lawful is a question of fact that
should ordinarily be resolved at trial, and cited a variety of factual
questions not susceptible to resolution on the current state of this
record.  Id. at 70a-74a.  Like Judge Cudahy, he stressed that he
viewed it "a mistake to suppose that we can decide this case once and
for all on so meager a record." Id at 61a.

   c. Judge Easterbrook, in a dissent joined by Judge Flaum, concluded
that BFOQ is the proper mode of analysis, but that a fetal protection
policy cannot be justified as a BFOQ.  Judge Easterbrook noted that
BFOQ is the appropriate framework because respondent explicitly "uses
sex as a ground of decision." Pet. App. 75a.  He then concluded that
the BFOQ defense was not available because respondent's stated concern
for the health of the unborn was irrelevant to the "operation of (its)
business" under the BFOQ;  similarly, he viewed the employer's concern
as irrelevant to a woman's "ability or inability to work" under the
Pregnancy Discrimination Act's amendment to Title VII.  Id. at 81a.
/6/

   Judge Easterbrook also stressed what he considered the excessive
breadth of respondent's policy -- it applies to all women (except
those with medical proof of incapacity to bear children) despite the
fact that most women in an industrial labor force do not become
pregnant, that most of those who do become pregnant will have blood
lead levels under 30 micrograms per deciliter, and that most of those
who become pregnant with levels exceeding 30 micrograms per deciliter
will nonetheless bear normal children.  Pet. App. 83a-84a.  As a
result, "(c)oncerns about a tiny minority of women cannot set the
standard by which all are judged." Id. at 84a.

   Finally, Judge Easterbrook concluded that, if the business
necessity defense rather than BFOQ is the governing standard, summary
judgement was inappropriate, and the case should be remanded for
trial.  In an extensive discussion of the evidence, he found material
factual disputes on all three of the factors addressed by the majority
-- whether there was a substantial risk to fetuses from lead in the
mother's blood at the levels to which respondent exposes its employees
(Pet. App. 88a-95a);  whether harm to offspring comes only from
exposure of the mother (id. at 95a-97a);  and whether there were less
discriminatory alternatives (id. at 97a-99a).  He also emphasized that
respondent's evidence was contradicted, not only by petitioners'
evidence, but also by findings of the Occupational Safety and Health
Administration (OSHA).  In 1978, OSHA concluded that "both men and
women are subject to genetic damage which may affect both the course
and outcome of pregnancy" and that "(g)iven the data in this record,
OSHA believes there is no basis whatsoever for the claim that women of
childbearing age should be excluded from the workplace in order to
protect the fetus or the course of pregnancy." Id. at 93a (quoting 43
Fed. Reg. 52,966 (1978)).  /7/

                          SUMMARY OF ARGUMENT

   1. Respondent's fetal protection policy explicitly excludes women
from certain employment positions on the basis of their sex.  The
policy is not a facially neutral policy with a "disparate impact" on
women.  Compare Griggs v. Duke Power Co., 401 U.S. 424 (1971).
Rather, it is facially discriminatory, and thus represents overt
discrimination and disparate treatment under Section 703(a) of Title
VII, 42 U.S.C. 2000e-2(a).  See City of Los Angeles Dep't of Water &
Power v. Manhart, 435 U.S. 702, 711 (1978);  Dothard v. Rawlinson, 433
U.S. 321, 332 (1977).

   Such an explicitly discriminatory policy is not necessarily illegal
under Title VII, but may be justified under that statute only if it is
a "bona fide occupational qualification reasonably necessary to the
normal operation of (the) particular business or enterprise." Section
703(e)(1), 42 U.S.C. 2000e-2(e)(1).  The court of appeals incorrectly
applied the business necessity defense developed in "disparate impact"
cases, with its corresponding burden of persuasion on employees.
Wards Cove, 109 S. Ct. at 2125-2126.  The BFOQ defense is the
appropriate standard for evaluating respondent's defense of such a
facially discriminatory policy, and the burden rests on respondent to
justify the policy as a valid BFOQ.  Western Air Lines, Inc. v.
Criswell, 472 U.S. 400, 414-415, 421-423 (1985).

   2. It is possible that a bona fide occupational qualification
defense can be used to sustain a sex-based fetal protection policy,
but an employer defending such a policy must carry its burden of
justification.  The language of the BFOQ provision -- "reasonably
necessary to the normal operation of that particular business or
enterprise" -- is not in terms limited to concerns regarding an
employee's effect on product quality.  A concern with direct harm to
third parties from the manufacturing process is "reasonably necessary
to the normal operation of (a) business." Indeed, in other contexts,
this Court has recognized the validity of safety-related concerns in
applying BFOQ analysis.  See, e.g., Western Air Lines, Inc. v.
Criswell, 472 U.S. at 412-417;  Dothard v. Rawlinson, 433 U.S. at 336.
 A contrary conclusion that a BFOQ defense could never consider harm
to third parties from the manufacturing process would render invalid
any gender-based fetal protection policy, and would mean that
employers could not exclude pregnant women from particular kinds of
employment, even if there was absolute certainty of harm to the fetus
from exposure to a toxic substance in the course of employment.

   To justify a gender-based fetal protection policy, however, an
employer must prove with specificity that such a policy is "reasonably
necessary." This Court has outlined the elements of a satisfactory
showing by an employer that a facially discriminatory policy is a
valid BFOQ.  Under the standard explicated in Criswell, the employer
must show that the claimed hazard from worker exposure is reasonably
necessary to the normal operation of its business, and that the
discriminatory policy is reasonably necessary to the operation of the
particular business because it is a valid "proxy" for safety-related
job qualifications and employment procedures.  Thus, the employer must
prove that the claimed hazard is genuine;  that the substance or
process causing the hazard is reasonably necessary to the employer's
business;  and that worker exposure to the substance or process
causing the hazard is also reasonably necessary.  Additionally, to
establish that the policy of distinguishing among employees on the
basis of sex is a valid "proxy" to address legitimate safety concerns,
the employer must prove that exposure of male employees to the claimed
hazard does not create a similar degree of risk to offspring;  that
all or substantially all of the excluded class cannot perform the job
safely or that individualized consideration is impossible or highly
impractical;  and that there are no reasonably available, less
discriminatory alternatives.  Because the BFOQ is a limited exception
to Title VII's general prohibition on sex-based classifications,
careful judicial attention to factual findings and disputes is
essential.

   3. The court of appeals misapplied the elements of the BFOQ
standard.  The court failed to consider, under the BFOQ standard with
the burden properly imposed on respondent, the evidence of possible
harm to offspring from the exposure of male employees.  Establishing
that exposure of men does not pose a similar degree of risk as
exposure of women is vitally important because, in the absence of such
a showing, the exclusion of fertile women cannot be a valid method for
serving the employer's asserted interest in preventing direct harm to
third parties from the manufacturing process.  In view of this error,
and in view of the importance of careful attention to factual findings
and disputes, the judgment should be reversed, and the case remanded
to the court of appeals for reconsideration in light of a clarified
standard.

                               ARGUMENT

   I. THE ONLY AVAILABLE DEFENSE TO A SEX-BASED, FACIALLY
DISCRIMINATORY EMPLOYMENT POLICY IS THE STATUTORY BONA FIDE
OCCUPATIONAL QUALIFICATION DEFENSE

   A. The exclusion of fertile women from specified jobs constitutes
sex-based discrimination

   Section 703(a) of the Civil Rights Act of 1964 (42 U.S.C.
2000e-2(a)) prohibits sex-based classifications in the terms and
conditions of employment, in hiring and discharge decisions, and in
other employment decisions that adversely affect an employee's status.
 /8/ Respondent's explicit policy of excluding "women with
childbearing capacity" from lead-exposed jobs creates a facial
classification based on gender.  Respondent's policy is not a facially
neutral policy that simply has a "disparate impact" on women.  Compare
Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (disparate impact
claim may be raised against "practices that are fair in form, but
discriminatory in operation");  Wards Cove, 109 S. Ct. at 2118-2119
(same).  Rather, it explicitly uses sex as the basis for its
classification and exclusion.  It is thus an overt form of "disparate
treatment" because it "treats some people less favorably than others
because of their * * * sex." Teamsters v. United States, 431 U.S. 324,
335 n.15 (1977).  See also City of Los Angeles Dep't of Water & Power
v. Manhart, 435 U.S. 702, 711 (1978) (requirement that female
employees pay more than male employees to pension fund is facial
discrimination because it "shows 'treatment of a person in a manner
which but for that person's sex would be different'");  Dothard v.
Rawlinson, 433 U.S. 321, 332 (1977) (exclusion of women as prison
guards represents "overt discrimination").  /9/

   The policy's classification on the basis of gender and childbearing
capacity, rather than gender alone, unquestionably remains sex
discrimination.  As an initial matter, the policy is discriminatory
because it requires only female employees to produce proof that they
are not capable of reproducing.  See Phillips v. Martin Marietta
Corp., 400 U.S. 542, 544 (1971) (policy of excluding only women with
pre-school-age children was sex discrimination because the policy
established "one hiring policy for women and another for men -- each
having pre-school-age children").  Additionally, in the Pregnancy
Discrimination Act (PDA), Congress explicitly provided that, for
purposes of Title VII, discrimination "on the basis of sex" includes
discrimination "because of or on the basis of pregnancy, childbirth,
or related medical conditions." Section 701(k), 42 U.S.C. 2000e(k).
See note 6, supra.  "The Pregnancy Discrimination Act has now made
clear that, for all Title VII purposes, discrimination based on a
woman's pregnancy is, on its face, discrimination because of her sex."
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684
(1983).  In its use of "childbearing capacity" as the criterion for
exclusion, respondent explicitly classifies on the basis of potential
for pregnancy;  under the Pregnancy Discrimination Act, such a
classification must be regarded, for Title VII purposes, in the same
light as explicit sex discrimination.  See Pet. App. 65a (Posner, J.,
dissenting);  id. at 75a-76a (Easterbrook, Jr., dissenting).  /10/

   B. The only available defense to explicit, gender-based
discrimination is the statutory BFOQ defense

   The only statutory defense to explicit, facial discrimination under
Title VII is the BFOQ defense in Section 703(e)(1), 42 U.S.C.
2000e-2(e)(1).  This statutory exemption provides that it is not
unlawful to use sex, religion, or national origin as a basis for
employment decisions if that otherwise prohibited criterion "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).  See note 3, supra.  In decisions addressing the
permissibility of explicit, sex-based discrimination, this Court has
considered only the possible availability of the BFOQ defense.  See
Dothard v. Rawlinson, 433 U.S. at 332-337;  Phillips v. Martin
Marietta Corp., 400 U.S. at 544.  A conclusion that only the BFOQ
defense is available to justify explicit, facial discrimination
reflects the statutory structure:  explicit, facial discrimination
represents an unlawful employment practice under Section 703(a) of
Title VII (note 8, supra), and may be justified only by the explicit
statutory authorization provided in Section 703(e) (note 3, supra).

   The business necessity defense, in contrast, developed not as a
defense to explicit facial discrimination, but rather as an element to
be considered in the context of a disparate impact claim.  "Though we
have phrased the query differently in different cases, it is generally
well-established that at the justification stage of * * * a disparate
impact case, the dispositive issue is whether a challenged practice
serves, in a significant way, the legitimate employment goals of the
employer." Wards Cove, 109 S. Ct. at 2125-2126 (emphasis added).  See
also Griggs, 401 U.S. at 431.  This business necessity test has not,
however, been employed in cases of disparate treatment.

   Despite the explicit, facial discrimination in respondent's fetal
protection policy, the court below concluded that the "business
necessity defense" explicated in Wards Cove was the appropriate
standard for evaluating the policy.  Pet. App. 28a-30a.  The court
emphasized that this business necessity defense was appropriate
because respondent's gender-based fetal protection policy was not
instituted with the purpose of discriminating against women.  See id.
at 23a & n.25 (citing Fourth Circuit's conclusion that "a fetal
protection policy involves motivations and consequences most closely
resembling a disparate impact case" and noting that respondent's
"primary interest in this case is protecting the development and
health of female employees and their unborn children").  /11/ The
absence of a discriminatory motive, however, does not convert a
facially discriminatory policy into a neutral policy with a
discriminatory effect.  The question whether an employment practice
involves disparate treatment through explicit, facial discrimination
does not depend on the nature of the employer's motive for adopting
the practice, but rather on the explicit terms of the practice.  In
Martin Marietta, for instance, a possible benign motive did not
prevent a conclusion that the exclusion of women with pre-school-age
children constituted discrimination under Section 703(a), nor did it
lead to consideration of a business necessity defense;  the
dispositive question became whether a BFOQ defense under Section
703(e) could justify the discrimination.  400 U.S. at 543.  See also
Connecticut v. Teal, 457 U.S. 440, 455 (1982) (discussing Martin
Marietta).  Similarly, in Dothard, the safety concerns underlying
exclusion of women as prison guards did not prevent the policy from
being sex discrimination under Section 703(a), nor did it lead to
consideration of a business necessity defense;  again, the question
became whether the explicit, facial discrimination could be justified
as a BFOQ under Section 703(e).  433 U.S. at 332-333.  In sum, the
beneficence of an employer's purpose does not undermine the conclusion
that an explicitly gender-based policy is sex discrimination under
Section 703(a), and may thus be defended only as a BFOQ under Section
703(e).

   The Seventh Circuit's application of the business necessity
doctrine rather than the statutory BFOQ defense to the facially
discriminatory fetal protection policy has important consequences.
The elements of the business necessity and BFOQ standards differ in
significant respects.  Compare, e.g., Wards Cove, 109 S. Ct. at 2126
(standard for business necessity defense in disparate impact case)
with Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 412-417 (1985)
(standard for BFOQ in context of age discrimination claim).  /12/ Most
fundamentally, the burden of persuasion in the two standards is
different.  In Wards Cove, this Court explained that the burden of
persuasion remains on the plaintiff at all times in a disparate
impact/business necessity case.  109 S. Ct. at 2125-2126.  Applying
this standard here, the Seventh Circuit imposed the burden on
petitioners.  Pet. App. 32a-41a.  The burden of establishing a BFOQ
defense, in contrast, rests on the employer.  See Price Waterhouse v.
Hopkins, 109 S. Ct. 1775, 1789 (1989) (plurality opinion) (in BFOQ
analysis, "it is the employer who must show why it must use gender as
a criterion in employment");  id. at 1811 (Kennedy, J., dissenting)
("In the BFOQ context this is a sensible, indeed necessary, allocation
of the burden, for there by definition sex is the but-for cause of the
employment decision and the only question remaining is how the
employer can justify it.");  Dothard, 433 U.S. at 332-337.  See also
Criswell, 472 U.S. at 414-415, 422-423 (BFOQ burden of proof on
employer under the ADEA).

   The court of appeals thus erred in applying a business necessity
defense to explicit facial discrimination and in imposing the burden
on petitioners;  the only appropriate defense to explicit facial
discrimination under Title VII is a BFOQ defense, and the burden of
establishing such a defense is on respondent.

   II. IT IS POSSIBLE FOR A SEX-BASED, FETAL PROTECTION POLICY TO BE
JUSTIFIED AS A BFOQ

   A. Nothing in the language or scope of the BFOQ provision precludes
its use to defend a fetal protection policy

   The BFOQ defense provides a limited exception to Title VII's
prohibition of sex discrimination.  As this Court explained in
Dothard, "the restrictive language of Section 703(e), the relevant
legislative history, and the consistent interpretation of the Equal
Employment Opportunity Commission" establish that "the (BFOQ)
exception was in fact meant to be an extremely narrow exception to the
general prohibition of discrimination on the basis of sex." 433 U.S.
at 334.  See also 29 C.F.R. 1604.2(a) (EEOC Guidelines on
Discrimination Because of Sex) (BFOQ should be narrowly interpreted).

   Despite the narrow scope of the BFOQ exception, there is no legal
or logical impediment to its application in this context.  It cannot
be doubted that a concern with industrial safety -- and with the
direct harm caused by a manufacturing process or product -- is
appropriately an essential element of business operations.  A broad
variety of societal sanctions -- ranging from statutes and regulations
to tort liability, and from administrative fines to criminal penalties
-- reflect the importance of this concern.  /13/

   The statutory language of the BFOQ exception fully supports the
conclusion that a concern with direct harm to third parties from a
manufacturing process may be analyzed under the framework of the BFOQ.
 The statute provides that an employer may show that the challenged
practice 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).  A concern with direct harm to
third parties from the manufacturing process fits comfortably within
the scope of an element "reasonably necessary to the normal operation
of (a) particular business or enterprise." As Judge Posner emphasized
(Pet. App. 64a), the language of the statutory provision is not framed
in absolutes;  the BFOQ provision refers to a practice that is
"reasonably necessary" (not absolutely necessary) and to the "normal
operation" of the business (not an unusual or exceptional operation of
the business).  Nothing in the language or limited scope of the
exception requires a view that a concern for direct harm to third
parties from the manufacturing process must be deemed inherently
incapable of being "reasonably necessary" to the "normal operation" of
a business.  On the contrary, the BFOQ exception reflects "Congress'
unwillingness to require employers to change the very nature of their
operations in response to the statute." Price Waterhouse v. Hopkins,
109 S. Ct. at 1786 (plurality opinion).  /14/

   In our view, the contention that a BFOQ defense is absolutely
unavailable for a sex-based fetal protection policy thus reflects a
misreading of the BFOQ provision of Title VII.  Judge Easterbrook
suggests that, in this context, the BFOQ provision relates only to the
"ability to make batteries." Pet. App. 81a.  Because harm to a fetus
does not affect a woman's ability to make a battery, the argument
goes, the BFOQ defense is unavailable.  /15/ The problem with this
analysis is that it requires an unduly restricted view of the BFOQ
provision -- one which is not supported by the language of the
statute.  Contrary to Judge Easterbrook's analysis, that language is
not limited to concerns about an employee's effect on product quality.
 The language of the provision has a broader scope -- it refers to a
"bona fide occupational qualification reasonably necessary to the
normal operation of that particular business or enterprise." Although
a concern for direct harm to third parties from the manufacturing
process may not relate to the effectiveness of an employee's job
performance in the sense of effect on product quality, such a concern
logically relates to the "normal operation" of a business.  /16/
Society can and does shut down businesses that inflict harm on third
parties through their operations;  a concern with the safety of third
parties is thus unquestionably "reasonably necessary to the normal
operation of (a) particular business or enterprise."

   The importance of safety to third parties, moreover, has been
recognized as an appropriate element of the BFOQ analysis in prior
decisions.  In Dothard v. Rawlinson, supra, for instance, this Court
upheld, as a BFOQ, the exclusion of women as security guards in a
particularly violent, all-male maximum security prison, in part
because "(t)he 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." 433 U.S.
at 336.  Similarly, in Western Air Lines, Inc. v. Criswell, 472 U.S.
at 412-417, this Court upheld consideration of safety to passengers as
an element in the BFOQ analysis of an age limit on flight engineers.
According to Judge Easterbrook's analysis, a case such as Criswell can
be distinguished because the concern about the safety to passengers is
related to the individual's ability to "do the job." Pet. App. 85a.
Again, however, there is no persuasive reason, under the explicit
language of the BFOQ provision, why the concern for injuries to third
parties may not include a concern for injuries to third parties
resulting directly from the manufacturing process as an aspect of the
"normal operation" of the business.  Judge Easterbrook observes that
respondent "is not using sex to avert harm to customers" (ibid.
(emphasis added)), but he fails to point to language in the BFOQ
provision suggesting that "normal operation of business" concerns may
only be customer-directed.

   In addition to lacking support in the statutory language and
logical scope of the provision, the view that the BFOQ defense is
completely unavailable for a sex-based fetal protection policy leads
to harsh and incongruous results.  A necessary consequence of that
view is that, even if there is absolute certainty that a pregnant
woman's exposure to a hazardous substance would unalterably injure the
fetus, an employer is barred by Title VII from adopting a policy of
exclusion focused only on pregnant women.  The difference between the
exclusion of fertile women and the exclusion of pregnant women is a
question of the scope of the policy;  if the BFOQ defense is
unavailable at all to defend a sex-based fetal protection policy, then
it is equally unavailable, under Title VII as amended by the Pregnancy
Discrimination Act, to defend a policy directed only at pregnant
women.  /17/ Nothing in the language or purpose of the BFOQ requires
this result.  /18/

   B. An employer bears a rigorous burden in justifying use of a
sex-based, fetal protection policy

   The standards for the BFOQ defense in the context of a fetal
protection policy can be readily derived from this Court's explication
of the BFOQ standard in other contexts.  Application of the standards
in this context suggests that the employer's burden is exacting, and
that the defense must be supported by specific factual showings.

   As an initial matter, and as has been discussed, it is critically
important that the employer bear the burden of proof in establishing
this BFOQ defense.  The BFOQ defense is a limited exception provided
by Title VII to its general prohibition of sex-based discrimination,
and, as such, the burden must be borne by the employer asserting the
exception.  See pp. 14-15, supra.

   The statute provides a defense to an employer who shows that its
facially discriminatory policy is "a bona fide occupational
qualification reasonably necessary to the normal operation of (its)
particular business or enterprise." 42 U.S.C. 2000e-2(e)(1).  In the
context of a safety-related BFOQ defense to a claim of age
discrimination from the exclusion of flight engineers over the age of
60, this Court in Criswell parsed this language as posing two basic
inquiries:  (1) whether the objective served by the policy is
"reasonably necessary to the normal operation of the particular
business," as opposed to being "peripheral to the central mission of
the employer's business," /19/ and (2) whether the discriminatory
aspect of the qualification is itself reasonably necessary, as opposed
to being merely "convenient" or "reasonable" -- i.e., is the employer
"compelled to rely on (the discriminatory factor) as a proxy for the
safety-related job qualifications validated in the first inquiry." 472
U.S. at 413-414.  This "proxy" factor, in turn, could be established
if the employer proved either that it had a factual basis for
believing that "all or substantially all (persons in the excluded
category) 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 the (excluded) employees on an individualized basis." Id.
at 414 (internal quotation marks omitted).

   This standard should be applied to the context of fetal protection
policies.  First, the employer must establish that avoidance of the
claimed hazard is "reasonably necessary to the normal operation of the
particular business." Criswell, 472 U.S. at 413.  In this context, the
employer thus must establish that the claimed hazard is, in fact, a
genuine hazard -- that worker exposure to the claimed hazard leads to
a substantial risk of injury to the fetus.  The employer must also
establish that the substance or process causing the claimed hazard is
itself reasonably necessary to the normal operation of its business.
Finally, the employer must establish that exposure to the claimed
hazard is also reasonably necessary to the normal operation of its
business.

   Second, the employer must establish that the policy is reasonably
necessary to the particular business because the employer is compelled
to rely on the discriminatory criterion as a "proxy" for
safety-related qualifications and procedures that would avoid the
claimed hazard.  As an initial matter, it is essential that the
employer establish that the exposure of male employees to the claimed
hazard does not present a similar degree of risk of harm to offspring;
 if exposure of men does lead to a similar degree of risk, the
exclusion of women cannot be a valid "proxy" for addressing the
asserted safety concerns.  As in Criswell, the employer must also
establish either that "all or substantially all" of the excluded group
cannot perform the job without jeopardizing the safety of the fetus,
or that it is "impossible or highly impractical" to assess safety on
an individualized basis.  /20/ Finally, the employer must prove that
the policy it has adopted eliminates the risk while excluding the
narrowest possible group of employees, and that there are no
reasonably available, less discriminatory alternatives.

   These particularized inquiries are essential to assure that fetal
protection policies are narrowly tailored to accomplish legitimate
goals without sacrificing the rights of individuals to be free from
discrimination.  "The statute's focus on the individual is
unambiguous.  It precludes treatment of individuals as simply
components of a racial, religious, sexual, or national class.  * * *
Even a true generalization about the class is an insufficient reason
for disqualifying an individual to whom the generalization does not
apply." City of Los Angeles Dep't of Water & Power v. Manhart, 435
U.S. 702, 708 (1978).  "Practices that classify employees in terms of
religion, race, or sex, tend to preserve traditional assumptions about
groups rather than thoughtful scrutiny of individuals." Id. at 709.
To assure that an exclusionary policy is accepted only with a rigorous
justification, and to assure that the narrowest possible group is
affected by such an exclusionary policy, an employer thus must prove
the specific correlation between the identified hazard and the basis
for exclusion.

   As a result, the importance of careful factual findings must also
be emphasized.  Title VII cases are, of course, subject to the same
rules of procedure and practice as other areas of civil litigation.
United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711,
716 (1983);  id. at 718 (Blackmun, J., concurring).  Nevertheless, the
emphasis which Judges Cudahy and Posner placed on the importance of
factual findings in this area (and the emphasis which Judge
Easterbrook placed on the importance of factual findings in his
alternative argument (Pet. App. 88a-99a)) is entirely appropriate.
The BFOQ analysis of sex-based, fetal protection policies is a "novel
and difficult" area in which "careful examination of the facts as
developed by the full adversary process of a trial" is likely to be
particularly important.  Pet. App. 73a (Posner, J., dissenting).  This
emphasis on the importance of factual findings is fully consistent
with concerns expressed by this Court in other BFOQ cases.  See, e.g.,
Criswell, 472 U.S. at 423 (employer's argument concerning its experts'
conclusions "virtually ignores the function of the trier of fact in
evaluating conflicting testimony");  Johnson v. Mayor & City Council
of Baltimore, 472 U.S. 353, 362 (1985) (BFOQ in age discrimination
context requires a "particularized, factual showing");  Phillips v.
Martin Marietta Corp., 400 U.S. 542, 544 (1971) (employer's BFOQ
justification was a "matter of evidence" and "(s)ummary judgment was
therefore improper").  Such concerns are particularly salient in the
sensitive area of fetal protection policies.

   III. THE COURT OF APPEALS MISAPPLIED THE BONA FIDE OCCUPATIONAL
QUALIFICATION DEFENSE

   Although the court of appeals upheld respondent's gender-based
fetal protection policy on the alternative ground that it satisfied
the BFOQ standard (Pet. App. 42a-59a), the court misapplied the
elements of that defense.  The most glaring error -- and an error of
sufficient magnitude to require reversal -- is that the court of
appeals failed to consider, under the BFOQ standard and with the
burden on respondent, petitioners' evidence of harm to offspring from
the exposure of males.  /21/ As has been discussed, a showing that a
similar degree of risk is not created by the exposure of men is
central to an employer's BFOQ defense, and to the validity of the use
of the sex-based criterion as a proxy for individualized
consideration.  /22/

   The court of appeals did consider petitioners' proffered evidence
regarding the effects of exposure of men, but it did so only in the
context of its principal holding that petitioners had failed to carry
their burden with regard to the business necessity defense.  Pet. App.
33a-36a.  /23/ The court first noted that respondent's experts
"testified that a male worker's exposure to lead at levels within the
50 (microgram/deciliter) maximum set forth in OSHA's current (1978)
lead exposure guidelines did not pose a substantial risk of
genetically transmitted harm from the male to the unborn child." Pet.
App. 33a.  The court then observed that petitioners' witnesses
"posited that animal studies had demonstrated that there was a
possible risk of genetic damage to human offspring as a result of male
lead exposure" (id. at 33a-34a), but that petitioners had not
"presented any medical evidence in the record of any human study
scientifically documenting genetic defects in human beings resulting
from male lead exposure" (ibid.), and that their experts' research was
"at best, speculative and unconvincing." Ibid.

   In rejecting the significance of petitioners' evidence, the court
repeatedly emphasized that, under its application of "the Title VII
disparate impact/business necessity proof scheme" (Pet. App. 34a),
petitioners bore the burden of persuasion.  Id. at 29a, 31a, 34a-35a.
The court thus mistakenly considered the evidence of exposure to men
under the business necessity defense, with the burden placed on
petitioners.  /24/

   In its alternative holding that respondent had satisfied the BFOQ,
the court then failed to consider, under that standard and with its
imposition of the burden on respondent, the evidence of the
consequences from the exposure of men.  Although the court appeared to
recognize that the burden of establishing the BFOQ was on respondent
(Pet. App. 52a-53a, 58a-59a), the court discussed only evidence that
(1) exposure of pregnant women created a risk to fetuses (id. at 53a);
 (2) exposure of fertile women created a risk to fetuses (ibid.);  (3)
respondent's use of a 30 micrograms per deciliter level of lead in the
blood was appropriate (id. at 54a);  and (4) there had not been a
"convincing exposition in the record of any suitable alternative" (id
at 58a).  The court simply failed to consider, under the BFOQ standard
with its reallocation of the burden, the evidence concerning harm from
the exposure of males.  /25/ This element, however, is an essential
element of an employer's burden in justifying a BFOQ defense, and the
court of appeals' failure to consider that evidence in light of that
burden represents a fundamental error in its analysis.

   Because the court of appeals failed to consider this critical
element of the BFOQ defense with the burden placed on respondent to
justify its policy, and because the nature of the BFOQ defense in this
area requires careful attention to precise factual findings and
disputes, the case should be remanded to the court of appeals for
further consideration in light of a clarified standard for evaluating
the defense of a sex-based fetal protection policy.

                              CONCLUSION

   The judgment of the court of appeals should be reversed and the
case remanded for further proceedings.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JOHN R. DUNNE

      Assistant Attorney General

   JOHN G. ROBERTS, JR.

      Deputy Solicitor General

   ROGER CLEGG

      Deputy Assistant Attorney General

   CLIFFORD M. SLOAN

      Assistant to the Solicitor General

   DAVID K. FLYNN

   SUSAN D. CARLE

      Attorneys

   CHARLES A. SHANOR

      General Counsel

   GWENDOLYN YOUNG REAMS

      Associate General Counsel

   LORRAINE C. DAVIS

      Assistant General Counsel

   CAROLYN L. WHEELER

      Attorney Equal Employment Opportunity Commission

   JUNE 1990

   /1/ Between 1979 and 1983, at least six of respondent's employees
became pregnant while maintaining blood lead levels in excess of 30
micrograms per deciliter, and one of the babies born to one of these
employees was found to have an elevated blood lead level.  Pet. App.
6a-7a.

   /2/ Respondent recently changed its policy in two respects.  It
eliminated the exclusion of fertile women from jobs which could lead
to transfers to lead exposure jobs, and it lowered the level from 30
micrograms to 25 micrograms.  Resp. Br. in Opp. 8 n.16.  Both of these
changes were adopted after the case was submitted to the court of
appeals, and neither is in the record.  Ibid.

   /3/ The BFOQ defense provides, in pertinent part (42 U.S.C.
2000e-2(e)):

         Notwithstanding any other provision of this subchapter, (1)
      it shall not be an unlawful employment practice for an employer
      to hire and employ employees * * * on the basis of (the
      employee's) religion, sex or national origin in those certain
      instances where religion, sex, or national origin is a bona fide
      occupational qualification reasonably necessary to the normal
      operation of that particular business or enterprise * * *.

   /4/ See Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir.
1984);  Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982).  In
Wright, the court treated a fetal protection policy as a policy with
disparate impact, even though it explicitly applied only to fertile
women;  in Hayes, the court treated a fetal protection policy as a
policy of disparate treatment, but permitted a prima facie case of
facial discrimination to be rebutted by the elements of the business
necessity defense established in Wright.

   /5/ In October 1988, while this case was pending on appeal, EEOC
issued a policy statement in which it stated that "(a)lthough the BFOQ
defense is normally the only one available in cases of overt
discrimination, the Commission follows the lead of every court of
appeals to have addressed the question * * * and concluded that the
business necessity defense applies to these cases." Policy Guidance on
Reproductive and Fetal Hazards (Oct. 3, 1988) at 4, reprinted in Fair
Empl. Prac. Manual (BNA) 405:6613, 6614-6615 (hereinafter Policy
Guidance).  EEOC noted its view, however, that the district court in
this case had incorrectly granted summary judgment for respondent.
See Policy Guidance 9 n.22;  Fair Empl. Prac. Manual (BNA) at 405:6618
n.22 ("(T)he district court purported to apply the Hayes/Wright
analysis.  It concluded, on summary judgment that the exclusionary
policy was justified, despite the fact that, as we understand it,
there was conflicting evidence about harm mediated through men.  In
the Commission's view, when conflicting evidence exists, summary
judgment is not appropriate.").

   /6/ The Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555,
92 Stat. 2076 (42 U.S.C. 2000e(k)) amended Title VII to provide, in
pertinent part:

         The terms "because of sex" or "on the basis of sex" (in Title
      VII) include, but are not limited to, because of or on the basis
      of pregnancy, childbirth, or related medical conditions;  and
      women affected by pregnancy, childbirth, or related medical
      conditions shall be treated the same for all employment-related
      purposes * * * as other persons not so affected but similar in
      their ability or inability to work * * *.

   /7/ On January 24, 1990, EEOC issued a Policy Guidance on the en
banc decision.  The Commission modified its prior view that the
business necessity defense could apply to a fetal protection policy.
See note 5, supra.  In its 1988 Policy Guidance, the Commission had
emphasized that, consistent with the analysis in Wright and Hayes, the
burden of proving business necessity was on the employer.  Policy
Guidance at 4-5 (1988);  Fair Empl. Prac. Manual (BNA) at 405:6615.
In its 1990 Policy Guidance, the Commission noted that it had not
contemplated "the Seventh Circuit's application of the Wards Cove
business necessity standard" and the imposition of the burden on the
plaintiff to disprove business necessity;  "(f)or the plaintiff to
bear the burden of proof in a case in which there is direct evidence
of a facially discriminatory policy is wholly inconsistent with
settled Title VII law." Pet. App. 132a-133a.  The Commission observed
that the "application of Wards Cove to a facially discriminatory
policy has convinced the Commission that the hybrid approach to fetal
protection cases is problematic" and that "we now think BFOQ is the
better approach." Id. at 134a.  The Commission rejected the view,
however, that the BFOQ defense is not available to defend a fetal
protection policy, and set forth the elements which it believes should
govern such a defense.  The Commission also stated that, in its view,
this case presented conflicting issues of material fact, quoting Judge
Cudahy's statement that the "painful complexities are manifestly
unsuited for summary judgment." Id. at 139a.  The Commission
emphasized that "Commission investigators should not overlook or
dismiss conflicting evidence on the basis of the Seventh Circuit
decision." Ibid.  See also Johnson Controls v. California FEHC, 52
Fair Empl. Prac. Cas (BNA) 585 (Cal. Ct. App. 1990) (holding
respondent's fetal protection policy invalid under state fair
employment law).

   /8/ Section 703(a) provides:  It shall be an unlawful employment
practice for an employer --

         (1) to fail or refuse to hire or to discharge any individual,
      or otherwise to discriminate against any individual with respect
      to his compensation, terms, conditions, or privileges of
      employment, because of such individual's race, color, religion,
      sex, or national origin;  or

         (2) to limit, segregate, or classify his employees or
      applicants for employment in any way which would deprive or tend
      to deprive any individual of employment opportunities or
      otherwise adversely affect his status as an employee, because of
      such individual's race, color, religion, sex, or national
      origin.

   /9/ Because the policy by its terms discriminates on the basis of
sex, there is no need to undertake the allocation of proof suggested
by cases such as McDonnell Douglas v. Green, 411 U.S. 792 (1973) and
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981);  the
terms of the policy itself establish that sex, rather than a
"legitimate, nondiscriminatory reason" (McDonnell Douglas, 411 U.S. at
802) is the criterion for exclusion.  See Trans World Airlines, Inc.
v. Thurston, 469 U.S. 111, 121 (1985) (McDonnell Douglas test
inapplicable because employer's policy "is discriminatory on its
face").  See also Pet. App. 80a (Easterbrook, J., dissenting) ("Our
case does not concern the order of proof and methods of inference;
(respondent) expressly uses sex to make decisions.").  The fact that
the asserted reason for the sex-based exclusion (concern for the
health of the fetus) may be benign does not prevent the policy from
being sex-based discrimination.  See pp. 13-14, infra.

   /10/ The legislative history of the Pregnancy Discrimination Act
contains repeated references to the problem of discrimination
resulting from employers' perceptions that women may become pregnant.
See, e.g., H.R. Rep. No. 948, 95th Cong., 2d Sess. 6-7 (1978) ("Women
are still subject to the stereotype that all women are marginal
workers.  Until a woman passes the childbearing age, she is viewed by
employers as potentially pregnant.");  124 Cong. Rec. 21,435 (1978)
(statement of sponsor Rep. Hawkins) ("many of the disadvantages
imposed on women are predicated upon their capacity to become
pregnant").

   /11/ See also Wright, 697 F.2d at 1186 (application of business
necessity defense appropriate because of principle that
"disproportionate consequences of an employment practice, even if
unintended or indeed benignly motivated, may, like intentional
invidiously discriminatory employer actions, constitute violations of
Title VII");  Hayes 726 F.2d at 1548 (employer can show that
gender-based fetal protection policy is "neutral" if "it effectively
and equally protects the offspring of all employees").

   /12/ Similar standards govern the BFOQ provisions in Title VII and
the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621
et seq.  See Western Air Lines, Inc. v. Criswell, 472 U.S. at 412-417
(noting that, in adopting a BFOQ in the ADEA, Congress "borrow(ed) a
concept and statutory language from Title VII of the Civil Rights Act
of 1964" and approving BFOQ defense for ADEA derived from Title VII
precedents).  See also Trans World Airlines, Inc. v. Thurston, 469
U.S. 111, 121 (1985) (Title VII interpretation "applies with equal
force in the context of age discrimination, for the substantive
provisions of the ADEA 'were derived in haec verba from Title VII'")
(quoting Lorillard v. Pons, 434 U.S. 575, 584 (1978)).

   /13/ See, e.g., 15 U.S.C. 2601 et seq. (Toxic Substances Control
Act);  29 U.S.C. 651 et seq. (Occupational Safety and Health Act of
1970);  42 U.S.C. 6901 et seq. (Resource Conservation and Recovery Act
of 1976);  42 U.S.C. 6901 et seq. (Comprehensive Environmental
Response, Compensation and Liability Act of 1980).  See generally W.
Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law
of Torts Sections 4, 31, 75, 95 (5th ed. 1984);  Midlantic National
Bank v. New Jersey Dep't of Environmental Protection, 474 U.S. 494,
505-506 (1986);  United States v. International Minerals & Chemical
Corp., 402 U.S. 558, 564-565 (1971);  Morissette v. United States, 342
U.S. 246, 253-254 (1952);  United States v. Dotterweich, 320 U.S. 277,
280 (1943).

   Legally imposed concern for harm to third parties includes harm to
fetuses.  See W. Keeton, D. Dobbs, R. Keeton & D. Owen, supra, Section
55 at 368 (every State currently allows children born alive to recover
in tort for prenatal injuries inflicted by third parties);  Williams,
Firing the Woman to Protect the Fetus:  The Reconciliation of Fetal
Protection with Employment Opportunity Goals under Title VII, 69 Geo.
L.J. 641, 646 & n.24 (1981) (courts will hold unenforceable contracts
between an employee and employer waiving an unborn child's cause of
action against the employer).  There has been no determination that
federal or state law immunizes employers for injury to fetuses caused
by workplace conditions, or that state tort liability for harm to
fetuses is preempted by Title VII.  Cf. Rosenfeld v. Southern Pacific
Co., 444 F.2d 1219 (9th Cir. 1971) (invalidating State's sex-specific
protective labor legislation under Title VII).  The existence of a
reasonably perceived legal obligation is distinct from a justification
resting solely on economic concerns (cf. Manhart, 435 U.S. at
716-717), or solely on moral concerns (cf. Pet. App. 82a (Easterbrook,
J., dissenting)).  It is not necessary in this case to consider
whether the latter categories of concern, standing alone, might
justify a BFOQ defense.

   /14/ We note that this case involves a claim of harm to third
parties, not a claim that the policy is necessary to protect the women
themselves.  Cf.  Dothard, 433 U.S. at 335 ("In the usual case, the
argument that a particular job is too dangerous for women may
appropriately be met by the rejoinder that it is the purpose of Title
VII to allow the individual woman to make that choice for herself.").

   /15/ The Fourth and Eleventh Circuits also assumed that the BFOQ
analysis would be unavailable to defend a sex-based fetal protection
policy.  See Wright, 697 F.2d at 1185 n.21;  Hayes, 726 F.2d at 1549.

   /16/ See Pet. App. 60a n.1 (Cudahy, J., dissenting) ("(T)he BFOQ
defense need not be narrowly limited to matters of worker
productivity, product quality and occupational safety.  The employer
may permissibly consider the possible risks to (even potential) third
parties in the normal course of business decisionmaking.");  id. at
64a (Posner, J., dissenting) (The words "'normal operation' * * *
should dispel concern that consideration of all interests other than
the employer's interest in selling a quality product at the lowest
possible price is precluded.  It is possible to make batteries without
considering the possible consequences for people who might be injured
in the manufacturing process, just as it would be possible to make
batteries with slave laborers, but neither mode of operation would be
normal.").

   /17/ Cf. Pet. App. 64a (Posner, J., dissenting) ("To confine the
occupational qualification defense to concerns with price and product
quality would deny a defense to (respondent) even if the company
excluded only pregnant women, as distinct from all women who might
become pregnant, from making batteries.").

   /18/ Because a BFOQ defense under Section 703(e) can include
concern for harm to third parties from direct exposure to the
manufacturing process, moreover, Judge Easterbrook's Pregnancy
Discrimination Act (Section 701(k)) objection (Pet. App. 82a, 85a) is
also met.  The structure and language of Section 701(k) -- including
its definition of pregnancy-based discrimination as sex discrimination
for purposes of Title VII and its provision that "women affected by
pregnancy, childbirth, or related medical conditions shall be treated
the same for all employment-related purposes * * * as other persons
not so affected but similar in their ability or inability to work" --
requier that pregnancy-based discrimination be treated like other
forms of sex discrimination in Title VII;  like other forms of sex
discrimination, pregnancy-based discrimination is thus subject to the
general BFOQ defense.  Nothing in Section 701(k) suggests a special
exemption from Section 703(e);  indeed, the language of the provision
suggests exaclty the contrary because, within the context of Title
VII, it puts pregnancy-based discrimination on the same footing as
other forms of sex discrimination.  The applicability of Section
703(e) to pregnancy as a form of sex discrimination within the context
of Title VII's provisions is, of course, distinct from the issue of
the permissibility of state statutes according special benefits to
pregnancy.  Cf. California Federal Savings & Loan Ass'n v. Guerra, 479
U.S. 272 (1987) (upholding state law pregnancy leave provision).

   /19/ The Court in Criswell also quoted the Fifth Circuit's
statement in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (1976),
that the qualification invoked by the employer "must be reasonably
necessary to the essence of his business." 472 U.S. at 413 (emphasis
in Fifth Circuit opinion).  The Criswell Court further noted the Fifth
Circuit's decision in Diaz v. Pan American World Airways, Inc., 442
F.2d 385, cert. denied, 404 U.S. 950 (1971), holding that a
female-only qualification for flight attendants, defended on the
grounds that "the airline's passengers preferred the 'pleasant
environment' and the 'cosmetic effect' provided by female attendants,"
was not a valid BFOQ because it was "'tangential to the essence of the
business involved.'" 472 U.S. at 413 n.18.

   /20/ It is likely that, in justifying fetal protection policies,
the impossibility-of-individual-assessment claim will be more
pertinent than the all-or-substantially-all-cannot-perform claim.
Unless the employer has a factual basis for believing that (1) all or
substantially all of the excluded women will bear children and (2)
harm will be transmitted to the fetus through all or substantially all
of the excluded women, the all-or-substantially-all claim will be
unavailing.

   /21/ We note that the dissenting Judges concluded that, in addition
to conflicting evidence regarding the consequences from the exposure
of men, the record also contains material conflicts and gaps regarding
the nature of the risk to the fetus and the possibility of less
discriminatory alternatives, including improved warnings, alternative
employment opportunities, individualized monitoring, and increased
emphasis on industrial hygiene, employee education, and respirators.
See Pet. App. 60a n.1 (Cudahy, J., dissenting);  id. at 70a-73a
(Posner, J., dissenting);  id. at 88a-95a, 97a-99a (Easterbrook, J.,
dissenting).  We take no position on whether these issues have been
properly presented or preserved in this litigation or in the petition
(cf. Resp. in Opp. 19-25;  Pet. Reply Br. 3-9), but we emphasize that
these are precisely the kinds of issues which are vitally important
for evaluating the validity of a gender-based fetal protection policy,
and which require careful, precise factual findings.  See pp. 22-23,
supra.

   We note also that OSHA concluded in promulgating its occupational
lead exposure standard in 1978 that, in light of the evidence before
it, there was "no basis whatsoever for the claim that women of
childbearing age should be excluded from the workplace in order to
protect the fetus or the course of pregnancy." 43 Fed. Reg. 52,966.
Instead, OSHA emphasized the use of various protective measures.  Id.
at 54,423.  OSHA's 1978 conclusions, while not dispositive of the
issues in this case, nevertheless represent important evidence in this
type of litigation.

   /22/ It would, of course, not invalidate respondent's policy if
exposure of men to lead created some risk to offspring, but the risk
was substantially more attenuated than the risk posed by exposure of
women to the same hazard.

   /23/ Petitioners had submitted evidence in support of their
argument that exposure of men to lead also created potential hazards
for offspring.  See Pet. App. 95a (Easterbrook, J., dissenting)
("Three affidavits in the record, and papers in medical journals,
maintain that lead in the blood creates risks for offspring of both
male and female employees.").  See also J.A. 261 (Silverstein Aff.)
("On the basis of the animal and human data, damage to the male can
include malformed and dysfunctional sperm, chromosomal damage and
aberrations and testicular damage.  Defects in reproductive functions
that are associated with lead exposure include fetal death * * *,
sterility, low birth weight, birth defects as well as developmental
abnormalities in offspring.  Some of these risks can be associated
with blood lead levels in males and females as low as 20 micrograms *
* *");  J.A. 249 (Legator Dep.) ("There are very few chemicals that we
know of * * * where there is evidence that would indicate the exposure
to the male has an effect on spermatogenesis which can then be
transmitted to the progeny * * * and lead falls into this group that
has an effect as far as we now know from the literature, on
spermatogensis.").

   /24/ To the extent that the court of appeals' decision may be read
as holding that animal studies are never probative (Pet. App. 34a), we
disagree.  The reliance on well-conducted animal studies in
establishing mandatory health standards, and by analogy in evaluating
the validity of exclusionary fetal protection policies, is proper.
See Industrial Union Dep't v. American Petroleum Institute, 448 U.S.
607, 657 n.64 (1980) (plurality opinion);  Public Citizen Health
Research Group v. Tyson, 796 F.2d 1479, 1488-1489, 1496-1497 (D.C.
Cir. 1986).

   /25/ At the outset of its BFOQ discussion, the court made one
reference, in the context of discussing the nature of respondent's
business, to the harm posed to "the offspring of female employees."
Pet. App. 48a.  In light of the dispute regarding evidence of harm
from exposure of males -- and in light of the importance of that
dispute -- this conclusory reference to the "offspring of female
employees" cannot substitute for a considered analysis of the evidence
of effects from the exposure of men, with the burden placed properly
on respondent, rather than on petitioners.  Nor can the court's
reference to the lack of available alternatives (id. at 58a) be
construed as encompassing a consideration of the evidence relating to
exposure of men with the burden properly on the employer;  in its
business necessity defense analysis (with the burden on the
petitioners), the court explicitly considered the evidence of exposure
of men and the possibility of less restrictive alternatives as
distinct subjects.  Compare id. at 33a-36a with id. at 36a-41a.