Equal Rights, Equal Risks

Nine years ago Gloyce Qualls was a 32-year-old cog on the assembly line at the Johnson Controls battery plant in Milwaukee. As a "burner," she made roughly $350 a week. Standing at a conveyor, she used a torch to heat the lead that formed posts for 40 to 100 batteries a day. In the process, she inhaled oxide from the melting lead. (When the concentration of lead in her blood got too high, she was moved to a cleaner area until the level decreased.) Since lead is toxic, particularly to fetuses, the company in earlier years allowed women to transfer to jobs that were less hazardous - and that often paid less. But in 1982, Johnson Controls imposed a mandatory protection policy. Women of childbearing age could either prove that they were sterile or be forced to change jobs. Several months after being transferred to a $200-a-week position, Gloyce Qualls had her tubes tied. Today she is a stepmother to four children, yet she still rues her decision. "I had no choice," she says. "I had bills to pay. I had to live."

On behalf of workers like Qualls, seven women (and a would-be father denied a transfer) challenged the "fetal protection" policy in federal court. Last week, in one of its most important sex-discrimination decisions, the U.S. Supreme Court found in favor of them. The court unanimously struck down Johnson Controls' mandatory exclusion of fertile women from hazardous jobs, a ruling that immediately affected other companies such as Du Pont, General Motors, Gulf Oil and Monsanto. "Decisions about the welfare of future children must be left to the parents who conceive, bear, support and raise them rather than to the employers who hire those parents," wrote Justice Harry Blackmun, in a broad interpretation of the federal Civil Rights Act of 1964, which prohibits sex discrimination in the workplace. "Women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job." Qualls, who still works the line in Milwaukee, was elated. "It can't help me," she says. "But it can help other women."

Equal opportunity begets equal danger. "It's a little bit odd that women would fight for the right to expose their fetuses to lead," says Prof. Mayer Freed of Northwestern law school. While the court decision does open up to women a whole class of hazardous occupations - as many as 20 million jobs involve toxic substances - it also now forces women to face the same conundrum as men in the workplace: how does an individual balance risk against a livelihood? After all, men at Johnson Controls were not covered by the fetal-protection policy; Johnson warned them only that lead can decrease sperm count, even though scientific evidence suggests that lead may also harm the offspring of men exposed to the toxic metal. The dilemma is especially difficult in an age in which family finances are on a tether and both parents typically must work.

Beyond the women involved, the justices' ruling leaves employers in a bind. Companies adopted fetal-protection policies at least in part to protect themselves from lawsuits brought after infants were born with defects. "It's been a Catch-22 all along," says Denise Zutz, a spokeswoman for Johnson Controls. "We're horsewhipped when we're perceived as waiting for a tragedy to occur before taking a pro-active stance. But here we were willing to make a tough choice to avoid a tragedy. "In an editorial, The Wall Street Journal was blunter: "Sued if you do, sued if you don't." Now what? Clearly, employers will make Herculean efforts to warn workers and warn them again of hazards. Blackmun tried to reassure corporate America. If a plant "fully informs the woman of the risk and the employer has not acted negligently," the justice wrote, the basis for liability "seems remote at best."

Trouble is, even though mothers might not be able to bring winning lawsuits against companies, their offspring could. Indeed, as Justice Byron White noted in a concurring opinion, all states permit children to sue for prenatal injuries. While employers could defend such suits by pleading compliance with antidiscrimination law, crafty plaintiffs' lawyers would just respond that the workplace should have been safer. "You 're probably going to have a child with a disability," says Stephen Bokat, general counsel of the U.S. Chamber of Commerce. "A jury will see a poor child and a corporation with deep pockets." White, along with two other justices, suggested that a more narrowly drafted version of the Johnson Controls policy might be legal.

In addition to issuing thorough warnings, companies of course might consider making plants safer. "We're saying the workplace should be cleaned up to a point where men and women can safely reproduce," says Devra Davis, a scholar-in-residence at the National Academy of Sciences. "[Society] focuses almost exclusively on the woman. You don't have to be Sigmund Freud to figure out why." In some industries, the use of toxic substances could be reduced or safety equipment improved. This would drive up costs, complain representatives of various companies, and put American business at a competitive disadvantage. At Johnson Controls, the nation's largest manufacturer of car batteries, safety methods include medical screening and sophisticated ventilation systems. "We don't know how to make it any safer," says Zutz. "And if we did, it would be fabulously expensive."

The case inevitably led to more speculation about the abortion issue. Here was another decision upholding a woman's right to choose, another vote against the interests of the unborn. Much was made of the fact that David Souter, the newest justice, had voted in the majority, squarely with the liberals. Unfortunately, the Johnson Controls case was solely an interpretation of a congressional civil-rights statute, rather than the Constitution itself. This leaves for another day the question of whether Souter is a strict constructionist, a closet moderate, or both.

7.75 million workers are exposed to lead, which can affect men as well as women.

Ingested or inhaled, lead moves from the lungs into the bloodstream, where it passes through the umbilical cord to the fetus. It can cause neurological damage or lower a child's IQ.

Lead in the bloodstream harms the fertility of both sexes. Sperm may be malformed and sluggish, which could prevent conception or cause deformed fetuses.