Echo to Gender Bias

PROTECTION of women in the workplace has been a top priority of United States courts for the past decade. Women now can take legal action if they are passed over for jobs by less competent men; they may use civil rights planks to file grievances against male bosses who sexually harass them; and their employment must be protected so they may return to work after a pregnancy hiatus.

Even so, another issue keeps popping up.

Are there jobs or situations where women should be excluded for their own protection? Are there biological considerations that would preclude a woman from leading a military unit into combat, `a la Linda Bray? And should pregnant women be isolated from a work environment where damage could be done to the fetus?

The latter issue comes to the US Supreme Court next term for the first time. The justices will examine an industry policy which women's rights groups and labor unions say is a subtle, but pernicious, form of sex discrimination. Management representatives, on the other hand, insist it is just a matter of fetal safety and that no bias is intended.

International Union v. Johnson Controls raises the issue of whether a company may legally bar women of childbearing age from jobs involving exposure to lead, which might produce a deformed baby. Whether the female involved intends to have children is beside the point to the Milwaukee manufacturer of automobile batteries. The company's fetal-protection policy is being challenged as discriminatory to a woman's right to hold certain kinds of jobs and pursue a career ladder.

The US Court of Appeals for the Seventh Circuit in Chicago allowed that Johnson Controls was within its rights in this situation under ``business necessity'' exceptions to federal statutes that bar bias in employment. The majority of the court reasoned that the danger of lead to fertile women was well documented and that employers have a right to exclude pregnant women from the workplace.

Cases like this one often split courts, with pro-business conservative jurists taking the position of industry if it appears well-reasoned and protects business from what is seen as unwarranted liability potential. Liberal judges tend to defend the rights of women and minorities in workplace disputes.

In this matter, however, it was two Reagan administration justices on the appellate court - both considered future Bush Supreme Court nominees - who dissented from the majority along with a pair of their colleagues, assessing that this case could affect the jobs of as many as 20 million women. They called it the most important sex-discrimination case to come before the courts under a provision of the Civil Rights Act of 1964.

The issue is much broader than this case. Some of the plaintiffs may not be typical. One is a woman who was submitted to sterilization, ostensibly to keep her job. Another was past the usual child-bearing age. She subjected herself to the company's policy, although she had no intention of becoming pregnant.

What must be probed is whether fetal-protection rules, in some instances, are a guise to keep women out of higher-paying and career-oriented positions. Safety is also an important factor, but the danger of lead in the work environment should be of concern to men as well as women.

It is much less costly for business to exclude fertile women from certain jobs than to tackle a problem of lead or other dangerous substances. The choice should be that of the employee. A catch-all policy that affects all women of childbearing age might be a protection to some, but discriminatory to others.

The first priority for industry must be to clean up the work environment to make it safe and livable for all employees, men and women. Business has a responsibility to protect workers, not to weed them out to avoid possible liability litigation.

Courts today don't like to limit the right of employers to conduct their businesses. When this embracing of free enterprise, however, runs square up against job discrimination, the former must yield to the latter.