Johnson Controls, Inc. v. Fair Employment & Housing Com.

• Decision Date: 28 February 1990
• Docket Number: No. G007029,G007029
• Citation: 218 Cal.App.3d 517,267 Cal.Rptr. 158
• Court: California Court of Appeals Court of Appeals
• Parties: , 52 Fair Empl.Prac.Cas. (BNA) 585, 53 Empl. Prac. Dec. P 39,758, 58 USLW 2530, 14 O.S.H. Cas. (BNA) 1457, 1990 O.S.H.D. (CCH) P 28,849 JOHNSON CONTROLS, INC., Plaintiff and Respondent, v. CALIFORNIA FAIR EMPLOYMENT AND HOUSING COMMISSION, Defendant and Appellant. Queen Elizabeth FOSTER, Real Party in Interest.

Page 158

267 Cal.Rptr. 158

218 Cal.App.3d 517, 52 Fair Empl.Prac.Cas. (BNA) 585,

53 Empl. Prac. Dec. P 39,758, 58 USLW 2530,

14 O.S.H. Cas. (BNA) 1457,

1990 O.S.H.D. (CCH) P 28,849

JOHNSON CONTROLS, INC., Plaintiff and Respondent, v. CALIFORNIA FAIR EMPLOYMENT AND HOUSING COMMISSION, Defendant and Appellant.

Queen Elizabeth FOSTER, Real Party in Interest.

No. G007029.

Court of Appeal, Fourth District, Division 3, California.

Feb. 28, 1990.

As Modified March 14, 1990.

As Modified on Denial of Rehearing March 27, 1990.

Review Denied May 17, 1990.

John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Marian M. Johnston and Manuel M. Medeiros, Deputy Attys. Gen., for defendant and appellant.

Foley & Lardner, Stanley S. Jaspan, Susan R. Maisa, Milwaukee, Wis., Wickwire, Gavin & Gibbs and Gerald A. Griffin, Los Angeles, for plaintiff and respondent.

Joan M. Graff, Robert Barnes and Patricia A. Shiu, San Francisco, for real party in interest.

OPINION

STANIFORTH, Associate Justice. ^*

The California Fair Employment and Housing Commission (Commission) appeals the trial court's order granting a writ of mandate, vacating the decision of the Commission which struck down the Fetal Protection Program introduced and implemented by Respondent, Johnson Controls, Inc. (the Company) at its Globe automotive battery plant located in Fullerton, California.

The real party in interest here, Queen Elizabeth Foster (Foster), applied for one of the jobs subject to female exclusion. She was denied employment because she declined to produce medical evidence of infertility. She thereafter filed a complaint with the Commission, and the Commission in turn issued an accusation initiating administrative proceedings. The decision of the Commission is presently brought before this court.

This dispute is fraught with public policy considerations. On one hand, society certainly has an interest in safeguarding the well being of its employees, their families and, indeed, the public generally from industrial hazards. This societal interest has found its expression in many state and federal occupational and environmental standards. On the other hand, society also has a substantial interest in safeguarding equal employment opportunities for women. This interest finds its expression in state and federal anti-discrimination statutes, and in the California Constitution, article I, section 8. (See also Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.); Rojo v. Kliger (1988) 205 Cal.App.3d 646, 252 Cal.Rptr. 605.)

Globe Battery, a division of the Company, manufactures automobile batteries, the principle component of which is lead oxide. Lead is dangerous to the health and well being of humans and presently available research indicates that lead may be hazardous to children and fetal offspring at exposure levels lower than those which appear adversely to affect adults. Globe Battery has a comprehensive lead hygiene program for the protection of its adult employees. It also has a "Fetal Protection Program" implemented for the stated purpose of protecting the health and well being of unborn offspring. Under this program, women of child-bearing age and capacity are categorically excluded from certain jobs. Admission to those jobs requires proof of infertility. Globe Battery asserts it is not necessary to exclude men from these jobs because existing research appears to indicate that, although fetal offspring may be affected, sex cells themselves are not affected by lower levels of lead exposure.

The Company's Fetal Protection Program was not mandated by any state or federal rules. It was voluntarily adopted and enforced by Globe Battery. The program unquestionably discriminates against women. Only women are affected by its terms. Thus, the question presented to the Commission was whether Globe Battery was exempt from the statutory and constitutional prohibitions against sex discrimination because the employer sought to justify the discrimination as necessary to effectuate a voluntarily assumed responsibility for the protection of unborn offspring. The Commission concluded that Globe Battery could claim no such exemption.

FACTS

Queen Elizabeth Foster (Foster) was and is a young, physically-able woman seeking and needing employment. She applied for a job as cast-on-strap loader (COS loader) at the Globe Battery plant in Fullerton. ¹ "a. Women of childbearing capacity would not be hired in those jobs where, within the past year, a single blood lead sample result from any incumbent worker was at least 30ug/100ml or a single air lead sample result from any one incumbent was at least 30ug/m3 (the 'unacceptable' jobs.)

The Company refused to hire Ms. Foster pursuant to its Fetal Protection Program,because she declined to provide medical verification of an inability to bear children. At the time she applied for the job, she was neither pregnant nor planning to [218 Cal.App.3d 526] become pregnant. The Company's Fetal Protection Program (FPP) had been adopted some three months before Foster applied for a job. Its major provisions were:

"b. Women of childbearing capacity would not be hired in any job where the blood lead sample result of incumbent workers was below 30ug/100ml (the 'acceptable' jobs) but from which the woman employee would have job bidding, bumping, promotion or transfer rights to an 'unacceptable' job, pursuant to the union agreement.

"c. Any woman employee who worked in an 'unacceptable' job at the time of the adoption of the FPP and who was capable of bearing children would be allowed to continue working in her job if she maintained a blood lead reading of below 30ug/100ml (the 'grandmother' clause.) Incumbent female employees whose blood lead levels exceeded 30ug/100ml were to be given time to try to bring their own blood lead levels down and, if unsuccessful, were to be transferred to an 'acceptable' job at no loss of pay or benefits.

"d. Blood lead samples were to be taken of all women employees of childbearing capacity on a frequent basis. These women were also to receive counseling regarding lead effects and the importance of good personal hygiene and work practices.

"e. Johnson specifically discouraged its female employees from being sterilized in order to comply with the FPP."

Because the Company refused to hire Foster, she filed a complaint with the Commission. After an extensive hearing, the Commission found the Company's hiring practices were discriminatory on the basis of sex, that the FPP was not based upon a bona fide occupational qualification (BFOQ), and ordered the Company to hire Foster and to cease and desist from implementation of the FPP.

Evidence before the Commission shows the Company's Fullerton plant manufactures lead acid batteries for use in automobiles. A principle component in the manufacturing of the battery is lead oxide. Lead is a highly toxic substance which causes a variety of health effects in human beings, ranging from fatigue and irritability at relatively low levels of exposure to loss of consciousness and seizures at high exposure levels. Lead absorption may be measured in the amount of lead in the blood of an exposed individual, stated in micrograms of lead per hundred milliters of whole blood (ug/100ml).

Young children experience adverse effects from lead absorption at lower blood levels than do adults. The federal Centers for Disease Control (CDC) considers children with blood lead levels of 25ug/100ml to have an excessive level absorption which requires monitoring and treatment to avoid long term effects, such as fatigue, hyperactivity, irritability and sudden behavioral changes. Medical science has found no practical way to measure blood lead levels in a fetus. Medical experts, by the process of extrapolation, conclude a fetus is at least as susceptible to the effects of lead as are young children. Because lead in the blood of a pregnant woman passes directly to the fetus through the placenta, a fetus carried by a woman with an elevated blood lead level is at risk of adverse effects. There is an increased risk of spontaneous abortion. A child born alive has an increased risk of neurological effects manifested by irritability, hyperactivity, lessened attention span, and learning difficulty.

Both the California Occupational Safety and Health Administration (CAL/OSHA) and the federal Occupational Safety and Health Administration (OSHA) have adopted lead exposure standards to protect health of workers. These standards require The preamble to the OSHA lead standard and its attachments states that the male and female workers who are exposed to lead should keep their blood lead levels below 30ug/100ml if they plan to conceive because of the increased adverse effects upon the offspring. These OSHA lead standards do not include a different standard for female workers, nor do they require that fertile women be excluded from jobs involving lead exposure.

                that workers be removed from worksites if their blood lead level equals of exceeds 50ug/100ml, based on an average of three consecutive blood tests.   Workers who have been removed pursuant to the lead standard may be returned to their former jobs when their blood lead level is reduced to 40ug/100ml or lower
                

The Company maintains a comprehensive lead hygiene program at its Fullerton plant. This includes biological monitoring and medical surveillance of employees, education, counseling and training of employees. A personal hygiene program, a respirator wear program, air sampling, housekeeping measures and engineering controls are in effect. Thus the Company is in substantial compliance with OSHA standards for control of lead exposure in its workplace. Pursuant to the Company's lead exposure policies described above, any worker having a blood lead level of 50ug/100ml or higher, will be transferred without loss of pay or benefits to a job where the average blood lead level of the incumbent...