Conference turris::womannotes-v3

    see also:
    
    Womannotes-V1
    154 - study indicates increased miscarriage in chip workers
    
    womannotes-V2
    735 - two-legged incubators
    1053 - fetal rights
    
    -Jody
    
    p.s.  gentle reminder - please take any direct pro/con discussion of
    abortion to the abortion topic (topic 49, I think).
    

    I liked the comment from the ABC news reporter:
    
    "Women have won a bittersweet battle.  They are now allowed to be
    exposed to the same hazards as men."
    
    I was hoping that some newsperson would bring up the fact that men were
    being exposed to unsafe conditions also.
    
    Lisa

    A spokesperson for "the industry", (battery manufacturers industry?  I
    don't know), said that their choices are now to bar no one from the jobs
    or to bar all fertile people from the jobs.  In the absence of a desire
    to descriminate against women for the higher paying jobs, (these
    hazardous jobs also paid the best!), this choice would have been seen
    as the obvious one long ago.  Such "exposure" harms men's reproductive
    systems, as well.  It's been shown, but of course, ignored.
    
    But in order to really get the full flavor of the blatant and
    intentional gender discrimination behind the original "rule", one has
    to realize that fertile women were only barred from *high paying* jobs
    which exposed them to undesirable elements.  Standard women's jobs
    somehow were not affected by management or government desire to "protect 
    their potential fetuses".  Hairdressers, for example, are exposed to 
    carcinogenic chemicals routinely.  No problem!  Medical lab workers are 
    often at risk for exposure to nasty things.  No problem.  How about the
    high school girl who develops film at the 1 hour photo place in the
    mall?  No problem!
    
    But the jobs that are traditionally male, the ones that traditionally
    pay the best, somehow fell under a blanket of "concern".  Uh-huh.
    
    This current ruling is a victory for women everywhere.  Not only in
    their being allowed access to high paying jobs they otherwise would not
    have access to, but more importantly, the ruling sends a message that
    women are fully capable of understanding the world around them and
    do not need to be "protected" from potentially making "foolish" 
    choices.  There are quite a few foolish choices men should be
    "protected" from possibly making but who would ever think to limit
    their freedom, (and their wages), because of it?
    
    This new ruling is a step foward in destroying the belief that women are
    silly little creatures who'll go so far as to "give up their first-born 
    male child" simply to prove they're equal with men.  This puts respect
    for women and their choices into law and leaves their "uterine
    status" privately with them, where it should be.  Women used to be
    synonymous with sex.  And to a certain extent, we still are.  But since 
    the 80s, we've also become synonymous with uterus.  In the eyes of
    society, women still haven't achieved the separation of who they are 
    from what they are, but this ruling pulls us a good bit closer to that
    goal!  
    
    This is a great step toward securing the same kind of respect and dignity 
    for women and their choices that men and their choices have always enjoyed. 
    
    Sandy Ciccolini

    re .4,
    
    I think, in fairness, one should point out the difference between men
    and women in this specific case.  It is known that lead exposure does
    harm men's reproductive system as well as it does to women's.  However,
    one has to understand what the company's real worried is about.  The company
    will not be sued because damaging to employees' reproductive systems
    since, I would suppose, that anyone who takes that particular job must
    have signed some form of waiver.  What the company is worried about is
    being sued by the children who could have been harmed because their
    mothers are exposed to lead.  In other word, my understanding being
    that the damage to the male reproductive system is that it makes the
    male infurtile, but the damage to the female reproductive system may
    produce children of birth defects (I am not absolutely sure about
    this though).  And from the point of view of the company's self interest,
    there is also the practical side, i.e. it is much harder to trace (and 
    prove) a birth defect to the father than to the mother.  Again, I want to 
    make the disclaimer that I am not saying what the company is doing 
    (together with its motive) is right or wrong, I am just making an 
    objective observation as to what really is going on...
    
    Personally, I think the Supreme Court made the right decision.
    
    Eugene 

    While I cheer and applaud this ruling, my greatest joy stems from the
    demonstration that a Supreme Court made up of appointees who
    individually chilled my blood has proven itself capable of handing down
    a ruling that recognizes the rights of individuals and of women.
    
    I suppose it's still too early to celebrate the coming decades
    under this court, but I now have a glimmer of hope.
    
    Karen

    I am a bit puzzled as to how this case ever get to the supreme court. 
    It is such an obvious case of violation of laws against gender 
    discrimination (although, from a certain point of view, one could have 
    some sympathy for the company).  So short of declaring the statues 
    unconstitutional(such action been would have been absurd), there is no 
    choice other than ruling the way they did.  Did the lower court make the 
    opposite ruling (I doubt that very much since the Supreme Court rarely 
    reverses a lower court decision with a 9-0 vote)?  It is not surprising 
    that it is a unanimous decision (as I predicted over lunch a while ago 
    with a few friends. Well, I said it would have been either 9-0 or 8-1, but
    that was close).  See to the "liberal" justices, it is a case of blatant
    gender discrimination and to the "conservative" constructionists, they
    absolutely hate to declare anything unconsitutional.
    
    Eugene

    my guess is what hurts eggs and/or embryos would also hurt sperm.  Thus
    infertility would not be the problem, fertility with potentially
    deformed offspring would be.
    
    -Jody
    

>It is not surprising that it is a unanimous decision 

 The newspaper account I read yesterday had it 5-4, with Scalia, Rehnquist,
Kennedy and one other voting in dissent. I was surprised to the the electronic
media say it was unanimous...

    I heard that it was a unanimous decision, but that the four disagreed
    with the majority conclusion.
    
    Does this make sense?
    
    judy

    re .10,
    
    If it is indeed a 5-4 decision, I would be very interested in reading
    the dissenting opinion.  So far, the only dissenting argument I can 
    think of is to say that the intent of the statues does not apply in
    this particular case, i.e. when the Congress passed the anti-discrimination
    statue, it did not mean it to be applied this way.  In other words, the
    famous "original intent" argument which I think is pretty weak in this
    case.
                        
    Eugene

> majority conclusion

um, maybe "majority opinion"?  That is, the minority agreed with the decision
on the end result of the issue, but they got there via a different mode
of legal reasoning and felt that other legal precedents were more valid
than the ones of the majority.  I didn't hear any reporting on this case,
but could that have been what you heard?

DougO

[Headers at end]

	WASHINGTON (UPI) -- The Supreme Court Wednesday ruled it is illegal
for companies to exclude fertile women from certain jobs over concern
for the health of their unborn babies.
	The court unanimously reversed a decision of the 7th U.S. Circuit
Court of Appeals that had allowed the so-called fetal protection policy
of a battery manufacturer, which excluded women from certain jobs out of
concern that lead exposure could cause birth defects in unborn children
and leave the company susceptible to later lawsuits.
	The court ruled that Title 7 of the Civil Rights Act of 1964 and its
amendment, the Pregnancy Discrimination Act of 1978, bars ``sex-
specific'' fetal protection policies.
	Women's groups said the jobs of as many as 20 million women could
have been affected had the 7th Circuit ruling been upheld.
	``I think women all over the country are breathing a sigh of relief,''
said Alison Wetherfield, legal director of the National Organization for
Women Legal Defense and Education Fund.
	The court said Title 7 allows only for job restrictions when sex or
pregnancy ``actually interferes with the employee's ability to perform
the job,'' a condition non-existent in the policy of the nationwide
battery manufacturer Johnson Controls Inc., which had given fertile
women the option of becoming sterilized or transferring to jobs not
involving lead exposure.
	Opponents argued such policies discriminate against women by barring
them from highly paid jobs on the mere chance they might become pregnant
and the work might pose a danger to a fetus.
	While courts have generally stated such policies do discriminate
against women, some also have said the policies can be justified, a
rationale struck down Wednesday.
	``It is no more appropriate for the courts than it is for individual
employers to decide whether a woman's reproductive role is more
important to herself and her family than her economic role,'' said the
court's majority opinion, authored by Justice Harry Blackmun and joined
by justices Sandra Day O'Connor, Thurgood Marshall, John Paul Stevens
and David Souter. ``Congress has left this choice to the woman as hers
to make.''
	Souter's vote swung the court from what could have been a more
qualified victory for women's rights had he sided with the conservative
bloc.
	The case, one of the most important of the court's 1990-91 term, was
argued Oct. 10, a day after Souter was sworn-in to replace retired
Justice William Brennan.
	Johnson Controls, based in Milwaukee, also has battery plants in
Garland, Texas, Holland, Ohio, Owosso, Mich., Louisville, Ky.,
Bennington, Vt., Middletown, Del., Atlanta, Ga., and Fullerton, Calif.,
although the policy had previously been outlawed in California by a
state appelate court.
	James Holzhauer, an attorney for the Safe Workplace Institute whose
group had argued for a ``very narrow'' exception to the law that would
have upheld Johnson Controls' policy, called the decision a ``grave
mistake.''
	Holzhauer predicted the ruling could drive some companies overseas
and added the court will eventually be asked to decide if Title 7 now
precludes lawsuits from women claiming their fetuses were harmed by work
conditions.
	Wednesday's ruling will have an immediate impact on probably less
than a million jobs in industries dealing with lead and chemicals where
fetal protection policies have been implemented, said Holzhauer.
	Medical experts believe lead poses a serious threat to a developing
fetus that can lead to stillbirth, reduced birth weight and retardation.
	But some experts believe lead exposure also causes reproductive harm
in men by lowering sperm counts and causing genetic damage that can lead
to birth defects in offspring.
	``The bias in Johnson Controls' policy is obvious,'' the high court
held. ``Fertile men, but not fertile women, are given a choice as to
whether they wish to risk their reproductive health for a particular
job.''
	The court's decision would allow fetal protection policies only if
applied to both men and women of child-bearing age, a condition that
would make it virtually impossible for most companies to remain in
business.
	Since 1983, Johnson Controls has barred fertile women from sections
of its plants where workers risk lead exposure.
	The company said an earlier policy to get women voluntarily to take
precautions against elevated lead levels did not work. Women who were
transferred received some compensation, but were barred from higher
paying jobs where lead is used.
	A class-action lawsuit was filed in Wisconsin in 1984 by the
International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America.
	Title 7 has a provision allowing for sex discrimination where there
is a ``bona fide occupation qualification (BFOQ) reasonably necessary to
the normal operation of that particular business or enterprise,'' but
the court said that exception does not apply to sex-based fetal
protection policies.
	``The unconceived fetuses of Johnson Controls' female employees ...
are neither customers nor third parties whose safety is essential to the
business of battery manufacturing,'' the court wrote.
	However, Chief Justice William Rehnquist and justices Byron White,
Anthony Kennedy and Antonin Scalia, the most conservative bloc of the
court, claimed in concurring opinions the BFOQ defense should not always
exclude sex-specific fetal protection policies.
 ------
_8_9_-_1_2_1_5_ _I_n_t_e_r_n_a_t_i_o_n_a_l_ _U_n_i_o_n_,_ _U_A_W_,_ _e_t_ _a_l_._,_ _v_s_._ _J_o_h_n_s_o_n_ _C_o_n_t_r_o_l_s


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From: [email protected] (GREG HENDERSON)
Newsgroups: clari.news.law.supreme,clari.news.group.women,clari.biz.labor,clari.tw.misc,clari.biz.urgent
Subject: Court strikes down employer's fetal protection policy
Keywords: supreme court, legal, women, special interest, employment, labor,
	chemicals, manufacturing
Message-ID: <[email protected]>
Date: 20 Mar 91 18:45:56 GMT
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Slugword: court-fetal
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Note: (complete writethru -- reaction, more details from opinion)

The ruling was on fairly narrow grounds, but I find it heartening that David
Souter joined the Blackmun opinion.

	-- Charles

	Quick review of how the SCotUS works:

	Justices vote in reverse order of seniority. Chief Justice
	(if in the majority, most senior Justice in majority, otherwise)
	assigns member of majority to write the majority opinion. Justice
	writes draft opinion, circulates it to other justices. Other Justices
	may write separate opinions. Draft opinions are circulated, 
	some (sometimes much) negotiating goes on drafts changed, reworded, 
	etc, opinions are joined... Opinion of court is released, along 
	with opinions, and who wrote and who joined each.  Usually,
	the original Justice assigned to write the majority opinion
	releases the majority opinion because most other Justices on the
	majority will join to it, but sometimes another Justice will write
	a dissenting opinion, and more Justices will join to it, hence the
	Justice "steals the majority", and that Justices opinion becomes
	the majority opinion. Believe that all 9 Justices can release
	separate opinions if they so desire.

	SO in this case, all 9 voted the same way, but both Blackmun
	and another Justice wrote differing opinions on how to view
	the decision, with O'Connor, Marshall, Stevens, and Souter joining
	to Blackmun's, Rehnquist, White, Kennedy, and Scalia all joining
	the other view (Who wrote the dissenting opinion?)

				Not a lawyer,

						Tom_K

    An aside question here, mods please take it to the rathole if
    appropriate.  But what gives these people's opinions, (and let's keep
    in mind they are just the opinions of 12 people!), their weight?
    The fact that they are known and liked by the powers that be?  Excuse
    me?  I'm filling out my tax forms here, now!  Tell me AGAIN what
    democracy is, because I've forgotten.
    
    Is it ever proven or at least shown to the public that these people
    have the wisdom that the hoi poloi lack?  Are they akin to Solomon or
    Elijah or Hunter Thompson?  ;-)  Sez who?  Are their opinions really any 
    more significant than yours or mine, (except, of course, for the 
    artifically created "sanctity" of their words)?  Sure, they have more 
    input into the issues, but what if the same input was given to ALL of us, 
    (as I believe it should), and then WE all voted on it?  Couldn't WE 
    come up with the answers?  Who ARE they, and what role should they be 
    playing in a "democracy", anyway?  Why do we have to live by the rulings 
    of 12 unelected "officials" who don't live the kind of life lived by
    the people for whom they make the rules?  Put to a vote, this issue
    would have been solved long ago and for a lot less money.  Those judges
    don't live on hamburgers, you know!  Speak to me of democracy.  Because I 
    really don't understand what it means.
    
    "What are words for..." - Dale Bozio of Missing Persons.
    
    Answer seems to be - "to quiet the masses".  Uh-huh.

    re .17,
    
    Well, ours is what is known as a constitutional democracy with a
    limited government.  Absolute democracy (also known as mob rule) is not 
    a very desirable thing to have.  Two guys beat up one is "grass root 
    democracy" in action, I am sure most people don't like that kind of
    thing.  Look at this way, the most essential part of the Constitution
    is to set limit to the government i.e., to set limit as to what the
    ruling majority can and cannot do.  That is why we need the boys and
    girls in the Supreme Court.  They are supposed to come from a different
    system--a system that is much isolated from the whims of popular
    opinions.
    
    Eugene
                                      

    re .19,
    Well, the real quote is:
    
    Democracy is based on the assumption that a million men are
    wiser than one man. How's that again? I missed something.
    Autocracy is based on the assumption that one man is wiser than
    a million men. Let's play that over again, too. Who decides?
    ...
    
    That is why wise guys like Thomas Jefferson understood that government
    (even in a democracy) is a necessary evil.
    
    Eugene

I was going to enter a long explanation of the system of checks and balances,
and the way the president nominates justices and the senate confirms them, and
why they're appointed for life, and the role of an independent judiciary in a
constitutional democratic republic, but then I got tired. Instead I'll just say

	Don't they teach civics anymore?

The Supreme Court is part of the system that protects *me* from *you*.

	-- Charles

        Oh, and it's nine, not twelve.
        
        Dan