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Published online by Cambridge University Press: 24 February 2021
“Fetal vulnerability programs,” which are employer attempts to protect employees' unborn fetuses from harm caused by the mothers' exposure to hazardous material in the workplace, have been challenged as a form of employment discrimination. This Note analyzes the recent judicial application of the Pregnancy Discrimination Act (PDA) and the disparate impact theory to fetal vulnerability cases. The Note also examines the business necessity defense's accommodation of legitimate employer interests. The Note concludes that a more potent business necessity defense, a stricter standard for evaluating alternative protective measures, and a judicial interpretation of the PDA which is more consistent with congressional intent are necessary for fair and reasonable resolution of these cases.
1 42 U.S.C. §§ 2000e-2000e-17 (1982).
2 Wright v. Olin Corp., 697 F.2d 1172, 1182-83 (4th Cir. 1982).
3 The Pregnancy Discrimination Act provides that:
The terms 'because of sex' or 'on the basis of sex' 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 conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work…
42 U.S.C. § 2000e(k) (1982).
4 See, e.g., Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir. 1984); Zuniga v. Kleberg County Hospital, 692 F.2d 986 (5th Cir. 1982).
5 See supra note 4.
6 See, e.g., Levin v. Delta Air Lines, Inc., 730 F.2d 994 (5th Cir. 1984); Wright, 697 F.2d at 1182; Burwell v. Eastern Air Lines, Inc., 633 F.2d 361 (4th Cir. 1980).
7 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, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ….
42 U.S.C. § 2000e-2(a)(l) (1982).
8 429 U.S. 125 (1976).
9 Id. at 137-40.
10 42 U.S.C. § 2000e(k) (1982); 1978 U.S. Code Cong. & Ad. News (92 Stat.) 4750-51.
11 See supra note 3; 1978 U.S. Code Cong. & Ad. News (92 Stat.) 4750-51.
It shall be an unlawful employment practice for an employer — … (2) to limit, segregate, or classify his employees or applicants 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 …
42 U.S.C. § 2000e-2(a)(2) (1982).
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 his 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 ….
42 U.S.C. § 2000e-2(e) (1982).
14 See generally Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702 (1978) (facial discrimination); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (pretext discrimination); Griggs v. Duke Power Co., 401 U.S. 424 (1971) (disparate impact discrimination); Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir. 1984) (general overview of frameworks).
15 435 U.S. 702 (1978).
16 Manhart, 435 U.S. at 702.
17 Manhart, 435 U.S. at 711. See also Phillips v. Martin Marietta Co., 400 U.S. 542 (1971) (Under Title VII, an employer may not, in the absence of business necessity, deny employment to women with pre-school age children while hiring men with such children.).
18 See supra note 13 and accompanying text.
19 See, e.g., Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1980) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)); Nashville Gas Co. v. Satty, 434 U.S. 136, 143-44 (1977) (citing Gilbert, 429 U.S. at 135) (quoting Geduldig v. Aiello, 417 U.S. 484, 496-97 n.20 (1974): “Only if a plaintiff through the presentation of other evidence can demonstrate that exclusion of pregnancy from the compensated conditions is a mere 'pretex[t] designed to effect an invidious discrimination against the members of one sex or the other' does Title VII apply.”); McDonnell Douglas Corp., 411 U.S. at 804 (1973) (“While Title VII does not, without more, compel rehiring of respondent, neither does it permit petitioner to use respondent's conduct as a pretext for the sort of discrimination prohibited by § 703(a)(l).”).
20 434 U.S. 136 (1977).
21 Id. at 138-39.
22 Id.
23 Id. at 139-43.
24 Id. at 145 (citing Gilbert, 429 U.S. at 135 (quoting Geduldig, 417 U.S. at 496-97 n.20)).
25 See, e.g., Hayes v. Shelby Memorial Hospital, 726 F.2d 1543; Wright v. Olin Corp., 697 F.2d 1172; Zuniga v. Kleberg County Hospital, 692 F.2d 986.
26 See, e.g., New York City Transit Authority v. Beazer, 440 U.S. 568, 584 (1979) (“A prima facie violation of [Title VII] may be established by statistical evidence showing that an employment practice has the effect of denying members of one race equal access to employment opportunities.”); Dothard v. Rawlinson, 433 U.S. 321, 329 (1977) (A prima facie case of discrimination is established if the plaintiff shows that facially neutral standards select employees in a significantly discriminatory pattern—discriminatory in effect.); Gilbert, 429 U.S. at 137 (“[A] prima facie violation of Title VII can be established in some circumstances upo n proof that the effect of an otherwise facially neutral plan or classification is to discriminate against members of one class or another ….”).
27 See supra note 26.
28 See, e.g., supra text accompanying note 19; McDonnell Douglas, 411 U.S. at 805.
29 Connecticut v. Teal, 457 U.S. 440, 446-47 (1982); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975) (citing McDonnell Douglas, 411 U.S. at 804-05).
30 401 U.S. 424 (1971). “The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.” Id. at 431.
31 Williams, Firing the Woman to Protect the Fetus: The Reconciliation of Fetal Protection with Employment Opportunity Goals under Title VII, 69 Geo. L.J. 672 (1981).
32 Griggs, 401 U.S. at 431. Williams notes that although an appropriate form of analysis when testing and employment qualifications are at issue, the “job-relatedness” test for business necessity cannot easily be applied to situations involving fetal health hazards. In PDA cases, the business purpose of the fetal protection programs, to protect fetal health, is unrelated to job performance. It is therefore inappropriate to determine the validity of fetal vulnerability programs under the rubric of relationship to job performance. Williams, supra note 31, at 689.
33 Griggs, 401 U.S. at 436. The employer in Griggs required employees to take intelligence tests or to possess a high school diploma. Id. at 425-26.
34 Id. at 431-32.
35 Dothard v. Rawlinson, 433 U.S. 32! (1977).
36 Id. at 331, n.14.
37 444 F.2d791 (4th Cir. 1971); Accord Blake v. Los Angeles, 595 F.2d 1367, 1376 (9th Cir. 1979); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1194-98 (5th Cir. 1978); Kinsey v. First Reg. Sec. Inc., 557 F.2d 830, 837 (D.C. Cir. 1977); Green v. Missouri Pac. RR., 523 F.2d 1290, 1297-98 (8th Cir. 1975); Muller v. U.S. Steel Corp., 509 F.2d 923, 928 (10th Cir. 1975); Head v. Timken Roller Bearing Co., 486 F.2d 870, 879 (6th Cir. 1973).
38 Robinson, 444 F.2d at 794.
39 Id. at 798.
40 The notion of an evolving business necessity defense reflects the courts' concern that fetal safety and potential employer liability will be lost in Title VII's antidiscriminatory sweep. The courts have, therefore, created a broader concept of business necessity. See, e.g., Hayes, 726 F.2d at 1548; Wright, 697 F.2d at 1185 n.21 (Inappropriateness of applying overt discrimination bona fide occupational qualification theory is due to its design as an exception to a narrow form of employment discrimination. Title VII, however, does not preclude other business justification defenses as recognized by the inception of the defense mGriggs.).But see Comment, Fetal Protection Programs Under Title VII—Rebutting the Procreation Presumption, 46 Pitt. L. Rev. 755 (1985).
41 Albemarle Paper, 422 U.S. at 425 (citing McDonnell Douglas, 411 U.S. at 801) (“If a n employer does then meet the burden of proving that its tests are 'job related,' it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in 'efficient an d trustworthy workmanship.'”).
42 Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir. 1984); Zuniga v. Kleberg County Hospital, 692 F.2d 986 (5th Cir. 1982).
43 See id.; Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982).
44 See, e.g., Hayes, 726 F.2d at 1552 n.15.
45 726 F.2d 1543 (11th Cir. 1984).
46 Id. at 1546.
47 Hayes v. Shelby Memorial Hospital, 546 F.Supp. 259 (N.D. Ala. 1982).
48 Id.
49 Hayes, 726 F.2d at 1546.
50 Id.
51 Id. at 1552.
52 Id. at 1549.
53 See supra note 32.
54 Hayes, 726 F.2d at 1552 n.15.
55 Id.
56 “Here, the Hospital's emphasis on the avoidance of litigation costs, rather than the health of its employees' offspring, underscores our belief that the Hospital disregarded Hayes' civil rights out of concern for the Hospital's finances, not out of any genuine concern for Hayes' fetus.” Id.
57 Id.
58 Id.
59 Id. at 1553.
60 Id. at 1553-54.
61 692 F.2d 986 (5th Cir. 1982).
62 Id. at 988.
63 Id. at 989.
64 434 U.S. 136 (1977).
65 Id. at 139-40.
66 Zuniga, 692 F.2d at 991.
67 Id. at 991.
68 Id. at 989 (citing Dothard, 433 U.S at 331 n.14.)
69 Id. at 991; see supra text accompanying note 39.
70 Zuniga, 692 F.2d at 992 n.10 (“[T]he economic consequences of a tort suit brought against the Hospital by a congenitally malformed child could be financially devastating, seriously disrupting the 'safe and efficient operation of the business.'”).
71 Id. at 992. For instance, at the time of Zuniga's resignation, the hospital had a formal policy governing leaves of absence from which Zuniga was specially excepted. Id.
72 697 F.2d 1172 (4th Cir. 1984).
73 Id. at 1179.
74 Id. at 1182.
75 Id. at 1183.
76 Id. at 1185.
77 Id. at 1188.
78 Id.
79 Id. (citing Robinson, 444 F.2d at 798).
80 Id. at 1190 n.26.
81 As examples of such national laws the court cited: Occupational Safety and Health Act, 29 U.S.C. §§ 651-678 (1985); Consumer Product Safety Act, 15 U.S.C. §§ 2051-2083 (1982); Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-392 (1972).
82 Id. at 1189.
83 Id. at 1189-90.
84 Wright v. Olin Corp., 585 F. Supp. 1447 (W.D.N.C. 1984).
85 :Id. at 1449.
86 Id. at 1449-51.
87 Id.
88 Id. at 1453.
89 730 F.2d 994 (5th Cir. 1984).
90 Id.
91 Id. at 995.
92 Id. at 1000.
93 Id. at 1001.
94 531 F.2d 224 (5th Cir. 1976).
95 Id. at 238.
96 The “safety factor” is evaluated in direct proportion to the safety of personal service customers of the business. See Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971) (job qualifications invoked by employer must be reasonably necessary to the essence of the business—the safe transport of airline passengers).
97 See supra text accompanying notes 56 and 57.
98 See supra text accompanying note 71.
99 See supra text accompanying notes 82 and 83.
100 See, e.g., Mohasco Corp. v. Silver, 447 U.S. 807, 834 (1980) (Blackmun, J., dissenting) (“[Title VII was] designed to vindicate workers' rights to be free from invidious discrimination in the workplace.”); Nashville Gas Co. v. Satty, 434 U.S. 136, 144 (1977) (citing General Electric Co. v. Gilbert, 429 U.S. 125, 135 (Only if it is shown that a particular policy is “designed to effect an invidious discrimination against the members of one sex or the other does Title VII apply.”)); Johnson v. Railway Express Agency, 421 U.S. 454, 457-58 (1974) (“[Title VII] creates statutory rights against invidious discrimination in employment.”).
101 House Comm. on Education and Labor, Pregnancy Discrimination Act of 1978, H. Rep. No. 948, 95th Cong., 2d Sess. 3, reprinted in 1978 U.S. Code Cong. & Ad. News (92 Stat.) 4749, 4751 (“The assumption that women will become pregnant and leave the labor force leads to the view of women as marginal workers, and is at the root of the discriminatory practices which keep women in low-paying and dead end jobs.”).
102 Although this Note recognizes that economic considerations are a primary impetus for fetal protection programs, the Note would argue that it is overly cynical to believe that an employer under such circumstances has no genuine concern for the health of an employee's fetus in its own right.
103 See supra notes 7 and 12 and accompanying text.
104 See generally Hayes v. Shelby Memorial Hospital, 726 F.2d 1543; Wright v. Olin Corp., 697 F.2d 1172; Zuniga v. Kleberg County Hospital, 692 F.2d 986.
105 Dothard, 433 U.S. at 331 n. 14; Zuniga, 692 F.2d at 992 n.10; Robinson, 444 F.2d at 798.
106 See supra note 70.
107 See supra text accompanying note 71.
108 See supra note 56 and accompanying text.
109 See supra text accompanying note 55.
110 Hayes, 726 F.2d at 1552 n.15.
111 See supra text accompanying note 55.
112 Hayes, 726 F.2d at 1552 n.15.
113 Id.
114 See supra text accompanying note 77.
115 See supra note 81 and accompanying text. (Note that such national laws were not cited by the court in direct support of the employer's business necessity defense, but were deemed a general basis for the court's overall conception of the defense). But see Comment, Fetal Protection Programs Under Title VII-Rebutting the Procreation Presumption, 46 Pitt L Rev 755 (1985).
116 Wright, 697 F.2d at 1189; see supra text accompanying notes 82 and 83.
117 See supra text accompanying notes 95 and 96.
118 Id.
119 See supra note 41 and accompanying text.
120 See supra text accompanying note 60.
121 See supra text accompanying note 93.
122 Levin v. Delta Airlines, Inc., 730 F.2d at 1001 (5th Cir. 1984).
123 Beyond the insurance provided by any antidiscriminatory legal safeguards, society's collective conscience would presumably place upon the pregnant employee the burden of voluntarily removing herself from exposure to hazardous materials to protect her fetus.
124 See generally Levin v. Delta Air Lines, 730 F.2d 994; Hayes v. Shelby Memorial Hospital, 726 F.2d 1543; Wright v. Olin Corp., 697 F.2d 1172; Zuniga v. Kleberg County Hospital, 692 F.2d 986.
125 See supra text accompanying notes 93 and 121.
126 See supra text accompanying note 121.
127 This was a concern over the entire spectrum of Title VII cases. See, e.g., Nashville Gas Co. v. Satty, 434 U.S. at 141-43; Zuniga v. Kleberg County Hospital, 692 F.2d at 991 ; Burwell v. Eastern Air Lines Inc., 633 F.2d 361, 363-65.
128 See supra note 41 an d accompanying text.
129 See supra text accompanying note 62.
130 See supra text accompanying note 60.
131 Id.
132 See supra text accompanying notes 73 and 74.
133 See supra text accompanying notes 90 and 91.
134 See supra note 71 and accompanying text.
135 1978 U.S. Code Cong. & Ad. News at 4753 (The PDA prevents “employers from treating pregnancy, childbirth or other related medical conditions in a manner different from their treatment of other disabilities.”).
136 42 U.S.C. § 2000 e(k) (1982) (“[P]regnancy, 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….”); see supra note 3.
137 In Zuniga, the court found that the Hospital's x-ray department had a high turnover rate, indicating that replacements had been regularly found in the past. Zuniga, 692 F.2d at 993.
