908 F.2d 1303 (6th Cir. 1990), 89-3478, Grant v. General Motors Corp.

Docket Nº:89-3478.
Citation:908 F.2d 1303
Party Name:29 Wage & Hour Cas. (BN 1484, Pat L. GRANT, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, et al., Defendants-Appellees.
Case Date:July 20, 1990
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1303

908 F.2d 1303 (6th Cir. 1990)

29 Wage & Hour Cas. (BN 1484,

Pat L. GRANT, Plaintiff-Appellant,

v.

GENERAL MOTORS CORPORATION, et al., Defendants-Appellees.

No. 89-3478.

United States Court of Appeals, Sixth Circuit

July 20, 1990

Argued March 15, 1990.

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Sharon L. Griffin, Toledo, Ohio, Carlin A. Clauss (argued), Madison, Wis., for plaintiff-appellant.

Barry F. Hudgin, Richard M. Kerger (argued), Michael S. Scalzo, Marshall & Melhorn, Toledo, Ohio, for defendant-appellees.

Before GUY and BOGGS, Circuit Judges, and GADOLA, District Judge [*].

RALPH B. GUY, Jr., Circuit Judge.

This appeal presents a challenge to the propriety of an employer's "fetal protection policy" that excludes all fertile female employees from foundry jobs involving exposure to specified concentrations of airborne lead. The district court upheld the defendants' fetal protection policy as a necessary safety measure justifying exclusion of all fertile women from certain jobs, and consequently granted summary judgment for the defendants on the plaintiff's claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and the Equal Pay Act, 29 U.S.C. Sec. 206(d). Because we find that the district court improperly treated the defendants' fetal protection policy as facially neutral, and therefore defensible as a business necessity, rather than overtly discriminatory, and thus justifiable only as a bona fide occupational qualification (BFOQ), we shall vacate the judgment on the plaintiff's Title VII theory and remand the Title VII claim for consideration under the standards governing overt gender-based discrimination. Since we find no error in the district court's analysis of the Equal Pay Act theory, we affirm the entry of summary judgment for the defendants on that claim.

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I.

Plaintiff, Pat L. Grant, has worked for defendant General Motors Corporation (GM) at GM's Central Foundry facility in Defiance, Ohio, since March of 1976. During her tenure with GM, the plaintiff has held several positions. Plaintiff Grant once worked as an iron pourer, but she was removed from that position on December 23, 1983, and reassigned to a lower paying job in the foundry pursuant to GM's fetal protection policy. 1 The fetal protection policy--initially instituted by GM in 1952 and periodically revised by the company--was modified in December 1981 to restrict fertile women from holding jobs involving potential exposure to specified levels of airborne lead. Under the fetal protection policy at issue, which GM devised "to protect fetuses which women of childbearing age may be carrying, knowingly or unknowingly," fertile female GM workers are uniformly prohibited from working in foundry areas with air lead levels in excess of 30 micrograms of lead per cubic meter of air; 2 women can only hold such positions by proving infertility. Additionally, fertile women are required to wear respirators and undergo bi-monthly blood tests in order to engage in work involving exposure to airborne lead levels of 10 to 30 micrograms per cubic meter; a total of two blood lead readings in excess of company standards results in disqualification from such jobs. 3 None of these standards or limitations applies to any male workers at the GM foundry. 4

In response to her reassignment, the plaintiff first lodged several administrative claims, and then filed this action on August 16, 1988. 5 The complaint, which named GM, the GM Central Foundry Division, and three GM supervisory officials as defendants, alleged that the defendants violated Title VII, 42 U.S.C. Sec. 2000e-2, and the Equal Pay Act, 29 U.S.C. Sec. 206(d), by reassigning the plaintiff to a lower paying job strictly on the basis of her gender. 6 The defendants moved for summary judgment on March 8, 1989, interposing the GM fetal protection policy as the sole justification for engaging in the admittedly gender-based exclusion of plaintiff Grant from her previous job as an iron pourer. 7 In support of their motion, the defendants submitted affidavits of former plant safety supervisor John Schuldt and of Dr. Sidney I. Lerner. The plaintiff countered with two affidavits citing a collection of studies discussing the

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impact of lead on men and women in the workplace.

On April 26, 1989, the district court issued an opinion and order granting the defendants' motion for summary judgment. The district court relied heavily upon Dr. Lerner's affidavit, which detailed the effects of lead exposure on men, women, and fetuses. The court rejected the scientific materials cited in the plaintiff's affidavit, and reasoned that Dr. Lerner's affidavit supported the GM policy insofar as the policy sought to protect fetuses by restricting the exposure of fertile women, but not men, to airborne lead. Despite the policy's explicit ban on women performing certain tasks, the district court treated the fetal protection policy as facially neutral and applied disparate impact analysis to resolve the plaintiff's sex discrimination claim. In light of the medical evidence provided by Dr. Lerner, the court deduced that the potential danger to fetuses from lead exposure justified GM's adoption of its fetal protection policy as a matter of "business necessity." Accordingly, the district court granted the defendants' motion for summary judgment in its entirety. This appeal followed. Our review of the district court's ruling on the summary judgment motion is de novo. See, e.g., Storer Communications, Inc. v. National Ass'n of Broadcast Employees and Technicians, AFL-CIO, 854 F.2d 144, 146 (6th Cir.1988).

II.

Title VII expressly states that "[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex[.]" 42 U.S.C. Sec. 2000e-2(a)(1). It is likewise unlawful under Title VII "to limit, segregate, or classify" employees "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect [her] status as an employee because of such individual's ... sex[.]" 42 U.S.C. Sec. 2000e-2(a)(2). Thus, Title VII sets forth a sweeping prohibition of overt gender-based discrimination in the workplace. See, e.g., City of Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 711, 98 S.Ct. 1370, 1377, 55 L.Ed.2d 657 (1978) (Title VII's sex discrimination ban prohibits employers from collecting larger pension fund contributions from women than from men even though women on average live longer than men). Under Title VII, overt gender-based discrimination can only be countenanced if sex "is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise[.]" 42 U.S.C. Sec. 2000e-2(e)(1); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 1786, 104 L.Ed.2d 268 (1989). An employer seeking to justify overt discrimination bears the burden of establishing the BFOQ defense. See, e.g., Price Waterhouse, 109 S.Ct. at 1789.

Although Title VII's proscription of sex discrimination conceivably could have been limited to overt gender-based distinctions, the Supreme Court's 1971 decision in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), determined "that a plaintiff need not necessarily prove intentional discrimination in order to establish that an employer has violated [Title VII]." Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 108 S.Ct. 2777, 2784, 101 L.Ed.2d 827 (1988); see also Griggs, 401 U.S. at 431, 91 S.Ct. at 853 (Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation."). The Supreme Court tempered this "disparate impact" theory, however, by authorizing adoption of facially neutral policies with discriminatory impact based upon a showing of "business necessity." Griggs, 401 U.S. at 431, 91 S.Ct. at 853; see also Watson, 108 S.Ct. at 2787; Albemarle Paper Co. v. Moody, 422 U.S. 405, 425-26, 95 S.Ct. 2362, 2375-76, 45 L.Ed.2d 280 (1975). As the Court recently explained, "the employer carries the burden of producing evidence of a business justification for his employment practices. The burden of persuasion, however, remains with the disparate-impact plaintiff." Wards Cove Packing Co. v. Atonio, --- U.S. ----, 109 S.Ct.

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2115, 2126, 104 L.Ed.2d 733 (1989). Therefore, overt discrimination and the statutorily-defined BFOQ defense must be analytically distinguished from Griggs -type disparate impact and the accompanying judicially-created business necessity defense. 8

The Supreme Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), provided a narrow interpretation of overt sex discrimination under Title VII by holding that "an exclusion of pregnancy from a disability-benefits plan providing general coverage is not gender-based discrimination at all." Id. at 136, 97 S.Ct. at 408. The Gilbert majority reasoned that pregnancy exclusions, though facially neutral, might give rise to disparate impact claims based upon their discriminatory effect. 9 Id. at 137, 97 S.Ct. at 408. The Supreme Court reiterated this view in Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977), by commenting that the defendant's "decision not to treat pregnancy as a disease or disability for purposes of seniority retention is not on its face a discriminatory policy." Id. at 140, 98 S.Ct. at 350. The Court again defined pregnancy-based distinctions as facially neutral yet potentially discriminatory in effect. See id. at 141, 144, 98 S.Ct. at 350, 352.

Congress swiftly indicated its disagreement with the rationale of the Gilbert and Satty decisions by passing the Pregnancy Discrimination Act (PDA), Pub.L. No....

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