
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: THURSDAY, March 21, 1991                   TAG: 9103210314
SECTION: NATIONAL/INTERNATIONAL                    PAGE: A-1   EDITION: METRO 
SOURCE: The Washington Post
DATELINE: WASHINGTON                                LENGTH: Medium

RULING WILL LOWER JOB BARRIER/ JUSTICES' OPINION LIMITS FETAL-PROTECTION

The Supreme Court Wednesday swept aside a major barrier to women in the work place, telling employers they could almost never cite gender as a reason to keep a woman from holding a specific job.

The decision, striking down a battery manufacturer's exclusion of fertile women from jobs exposing them to lead, removed an employment restriction that treated women differently on the ground of protecting them.

It also shifted a difficult question from employers to women: Should they risk harm to unborn children to hold a high-paying job?

Five justices said laws prohibiting discrimination on the basis of sex and pregnancy forbid such treatment, even for women who are actually pregnant.

The majority, which included the court's newest member, David Souter, and its only woman, Sandra Day O'Connor, said that neither employers' legitimate concerns about health risks nor fear of exposure to lawsuits can justify such gender-based policies. Also in the majority were Justices Harry Blackmun, Thurgood Marshall and John Paul Stevens.

Justice Antonin Scalia said he generally agreed with the majority's analysis. Three others - Byron White, Anthony Kennedy and Chief Justice William Rehnquist, agreed that the federal appeals court in Chicago was wrong when it threw out a challenge to Johnson Controls's fetal-protection policy. But they said the majority went too far in absolutely prohibiting such rules.

"It's a very strong statement of a woman's right to choose for herself and to make life choices for herself," said Ellen Vargyas, an attorney with the National Women's Law Center.

In addition to what women's groups said was a stunning psychological victory, the decision is expected to have broad impact.

Legal experts and business groups said employers will have to revise a host of so-called fetal-protection policies. Women across a range of occupations are now free to apply for jobs that were previously unopen to them.

And a frequently cited defense for employment discrimination - that gender constitutes a "bona-fide occupational qualification" and so excludes women from certain jobs - can now be used only when gender is very closely tied to job performance.

In the case, Auto Workers vs. Johnson Controls, the court rejected the company's policy excluding women who could not prove they were sterile from jobs in which they were exposed to high levels of lead. The company and others that came to its defense cited its concern not only for the safety of fetuses women might be carrying, but for the potential cost of protecting itself against liability if it was sued.

Several employers said Wednesday that in light of the decision they would review or remove their fetal-protection policies and follow the court's directive to advise employees of potential risks.

by CNB