International Union, United Auto. Aerospace and Agr. Implement Workers of America UAW v. Johnson Controls, Inc.

• Decision Date: 26 September 1989
• Docket Number: No. 88-1308,I,AFL-CI,88-1308
• Citation: 886 F.2d 871
• Parties: 50 Fair Empl.Prac.Cas. 1627, 51 Empl. Prac. Dec. P 39,359, 58 USLW 2193, 14 O.S.H. Cas.(BNA) 1217, 1989 O.S.H.D. (CCH) P 28,673 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et al., Plaintiffs-Appellants, and Local 322, Allied Industrial Workers of America,ntervening Plaintiff-Appellant, v. JOHNSON CONTROLS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 871

886 F.2d 871

50 Fair Empl.Prac.Cas. 1627,

51 Empl. Prac. Dec. P 39,359, 58 USLW 2193,

14 O.S.H. Cas.(BNA) 1217,

1989 O.S.H.D. (CCH) P 28,673

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et

al., Plaintiffs-Appellants, and Local 322, Allied Industrial Workers of America, AFL-CIO, Intervening Plaintiff-Appellant, v. JOHNSON CONTROLS, INC., Defendant-Appellee.

No. 88-1308.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 15, 1988.

Reargued En Banc June 15, 1989.

Decided Sept. 26, 1989.

Miriam R. Horwitz, Zubrensky, Padden, Graf & Maloney, Milwaukee, Wis., Ralph O. Jones, Jordan Rossen, Detroit, Mich., Carin A. Clauss, University of Wisconsin Law School, Madison, Wis., for plaintiffs-appellants.

Stanley S. Jaspan, Susan R. Maisa, Foley & Lardner, Milwaukee, Wis., for defendant-appellee.

Kenneth R. Loebel, Habush, Habush & Davis, Milwaukee, Wis., for intervenor plaintiff-appellant.

Clifford Zimmerman, Singer & Stein, Chicago, Ill., Nadine Taub, Rutgers University School of Law, Newark, N.J., for amicus curiae American Public Health Ass'n; Nancy J. Koch, Ann G. Daniels, and Norma G. Formanek, Farella, Braun & Martel, San Francisco, Cal., and Patricia A. Shiu, San Francisco, Cal., for amici curiae Queen Elizabeth Foster and the Employment Law Center of the Legal Aid Society of San Francisco; Joan E. Bertin, New York City, for amicus curiae American Civil Liberties Union Foundation.

Before BAUER, Chief Judge, CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Since 1982 Johnson Controls, Inc. (hereinafter "Johnson Controls" or "Johnson") has maintained a fetal protection policy designed to prevent unborn children and their mothers from suffering the adverse effects of lead exposure. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (hereinafter "UAW"), several UAW local unions and a group of individual employees brought suit alleging that this policy violated Title VII, 42 U.S.C. Sec. 2000e, et seq. ¹ The district court granted summary judgment in favor of Johnson Controls and the plaintiffs appealed. This case was originally argued before a panel of this court and the panel's opinion was circulated among all the members of the court pursuant to Circuit Rule 40(f). ² Prior to publication of the panel opinion, a majority of the members voted to hear the case before an en banc court and, following rehearing en banc, a majority of the court voted to affirm the decision of the district court.

I.

The Battery Division of Johnson Controls, Inc., was created upon Johnson Controls' 1978 purchase of Globe Union, Inc. (hereinafter "Globe" or "Globe Union"). ³ Globe Union was formed through the consolidation of two battery companies and had been in the battery business for almost fifty years before Johnson's purchase. Globe Union and Johnson Controls have maintained ongoing efforts to improve industrial safety through measures designed to minimize the risk lead poses to those directly involved in the manufacturing of batteries. ⁴

The steps that Globe Union and Johnson Controls have taken to regulate lead exposure have not been focused merely on complying with governmental safety regulations, but originate from their longstanding corporate concern for the danger lead poses to the health and welfare of their employees, their employees' families and the general public. During the period of the 1970's when OSHA's regulation of employee exposure to lead was virtually non-existent, Johnson Controls' predecessor, Globe Union, initiated a large number of innovative programs in an attempt to control and regulate industrial lead exposure. For example, in 1969, Dr. Charles Fishburn, M.D., who later became one of the primary proponents of Johnson Controls' fetal protection policy, instituted programs for monitoring employee blood lead levels. ⁵ In an attempt to manage lead exposure, other safety programs were initiated at Globe and Johnson including a lead hygiene program, respirator program, biological monitoring program, medical surveillance program and a program regulating the type, use and disposal of employee work clothing and footwear to minimize lead exposure. Globe Union also transferred employees out of high lead environments whenever a physician's medical evaluation report established that the individual had a high blood lead level. In the case of such transfers, medical removal benefits were provided to the employee before OSHA required such compensation. ⁶ Globe Union and Johnson Controls have continued to address their serious concern for industrial safety through efforts to design and regulate lead manufacturing areas to reduce employee lead exposure. For example, laminar flow pumps constantly supply a down draft of low velocity clean air to improve the environment of workstations where employees deal with lead. Central vacuum systems and powered floor scrubbers and sweepers are used to keep the manufacturing area as clear of lead dust as possible. Since Johnson Controls' purchase of Globe Union in 1978, it has spent approximately $15 million on environmental engineering controls at its battery division plants.

Globe Union, Johnson Controls' predecessor, established its first policy regarding fetal protection from lead exposure in 1977 as part of its comprehensive efforts to protect its employees from exposure to lead. Globe Union's announcement of the policy in a memorandum to battery plant and personnel managers stated:

"This change [the announced policy] has come about slowly as more and more medical opinion and evidence is persuasive of the risk to the unborn, developing child.

We have stopped short of excluding women capable of bearing children from lead exposure, but do feel strongly that those women who are working in lead exposure ... and those women who wish to be considered for employment 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."

(Emphasis in original). In its 1977 "Statement of Risks," Globe also observed that at that time scientific and medical evidence had not as yet conclusively established the risk lead exposure posed to the unborn. However, after noting possible risks the 1977 policy statement read:

"We would have to say that it is, medically speaking, just good sense not to run that risk [lead exposure] if you want children and do not wish to expose the unborn child to risk, however small, and so recommend that you counsel with your family doctor and advise us of your wishes to transfer."

Johnson adopted its current fetal protection program in 1982 following its determination, based upon scientific research, that it was medically necessary to bar women from working in high lead exposure positions in the battery manufacturing division. The fetal protection policy applies to work environments in which any current employee has recorded a blood lead level exceeding 30 %e2g/dl during the preceding year or in which the work site has yielded an air sample during the past year containing a lead level in excess of 30 %e2g per cubic meter. ⁷ The policy recites that women with childbearing capacity will neither be hired for nor allowed to transfer into those jobs in which lead levels are defined as excessive. ⁸ A grandfather clause in Johnson's fetal protection policy permits fertile women who were assigned to high lead exposure positions at the time of the adoption of the policy to remain in those job assignments if they are able to maintain blood lead levels below 30 %e2g/dl. ⁹ Those employees who are removed from positions because of excessive lead levels are transferred to another job in Johnson's employ without suffering either a loss of pay or benefits.

The major reason Johnson adopted its current fetal protection policy was the inability of the previous voluntary policy to achieve the desired purpose: protecting pregnant women and their unborn children from dangerous blood lead levels. Between 1979 and 1983, at least six Johnson Controls employees in high lead exposure positions became pregnant while maintaining blood lead levels in excess of 30 micrograms. In addition, at least one of the babies born to this group of employees later recorded an elevated blood lead level. Moreover, Johnson Controls' medical consultant, Dr. Fishburn, testified as follows concerning a specific lead-related incident:

"Q: Now, let's talk in terms of prior to 1983, at any of the other Globe plants, do you have any knowledge or do you have an opinion that in any instances the exposure of the mother--or the bloodlead level of the mother while she was pregnant had an effect on the fetus and, therefore, the child?

A: [Dr. Fishburn] Well, I'm not aware of any specific instances other than the one, which was in the early 80s, about 1981.

Q: And where was that?

A: Pardon?

Q: Where was that? What plant?

A: The Globe plant?

Q: Yes.

A: It was in Owosso.

Q: Where's the Owosso plant?

A: In Owosso, Michigan.

Q: In just simple terms, what was the nature of the problem?

A: The nature of the problem was hyperactivity and control of the child. And the child had elevated blood-leads and protoporphyrinis.

Q: In your medical judgment was the problem of the child affected in any way by the exposure of the mother during pregnancy?

A: In my opinion the history of the hyperactivity and the difficulty she was having with him could very well and probably was due to the lead that he had." ¹⁰

In announcing its new, more defined policy, Johnson Controls emphasized its continuing interest in the protection of employees and their families from occupational health hazards and was responding to the increased understanding of the risk of lead exposure that had developed in the...