The Companies That Treated Women as Wombs

The CDC's much-criticized alcohol guidelines for women have a lot in common with a 1990 Supreme Court case on gender discrimination.

To say that the recommendations about women and alcohol issued last month by the Centers for Disease Control and Prevention received a drubbing would be putting it lightly. Intended to help prevent fetal-alcohol spectrum disorders (FASD), the CDC guidelines urge women not only to stop drinking during pregnancy or while trying to become pregnant, but also to avoid alcohol altogether if they are sexually active and not using birth control—irrespective of their parenting intentions.

As Julie Beck and Olga Khazan noted in The Atlantic, the advisory struck many as condescending, suggesting that women who drink and are sexually active will engage in lots of risky sex. It also presumes that any woman who slips up and has unprotected sex, but who definitely doesn’t want children, won’t be proactive in correcting course. Put differently, the advisory assumes all women are mothers waiting to happen.

Even if that were somehow true, though, the agency’s focus on women is still frustratingly—and misguidedly—narrow. This “for mothers only” warning ignores research dating back more than a decade showing that alcohol consumption by men is linked to deformed sperm, which in turn can cause problems ranging from miscarriages to low birth weight to cognitive impairments. In 2014, a Korean study linked fathers’ drinking to a statistically significant range of physical and cognitive abnormalities, including the collection of symptoms found in FASD.

Parsing through the backlash to the CDC’s guidelines, it’s easy to feel like we’ve been here before. And we have: Just a few decades ago, a landmark Supreme Court case centered on the same idea of woman as wombs-in-waiting. In the mid-1980s, the United Auto Workers filed a lawsuit on behalf of its members against the battery manufacturer Johnson Controls, challenging the company’s “fetal-protection policy.”  The policy provided that unless a female employee could prove she was infertile, she could no longer work in any area of the company’s 16 plants that exposed her to lead.  The company cited potential harm to female employees’ fetuses—despite already having a policy that allowed pregnant workers to temporarily transfer into safer jobs—and the potential for liability, should a child disabled by in utero exposure later decide to sue Johnson Controls. (Such a case had never been filed.)

Because the best-paying jobs at Johnson Controls involved lead exposure, the policy amounted to a wholesale demotion for most of the 275 women working for the company, regardless of whether they planned to have children.

“Ridiculous and degrading” is how Elsie Nason, a welder at the company’s Bennington, Vermont plant, described the directive in a 1989 Boston Globe article.  Even though Nason had no interest in becoming pregnant—she was 50 years old at the time, divorced, and a mother of three—the only way she could keep her $20-per-hour paycheck was to be sterilized, so she grudgingly accepted a transfer to a lower-paid custodial job.  But other women felt the financial pressure to go through with sterilization. “I panicked,” Gloyce Qualls of Milwaukee told The Chicago Tribune in 1991. “All I could see was that I couldn’t afford to pay my bills.”

In its lawsuit, the UAW conceded that lead was dangerous, but faulted the company’s solution, which only addressed the harm that might occur to a developing fetus while ignoring lead’s damage to men’s reproductive organs. Scientific evidence showed that lead caused mutations in sperm, as well as low sperm count and low sperm motility, and that pregnancies conceived with sperm from lead-exposed men had resulted in miscarriages, stillbirths, and birth defects. As the Occupational Safety and Health Administration had advised a few years earlier in its 1978 standards on workplace lead exposure, outright exclusion of female employees was not the way to assure healthy pregnancies.  Instead, both women and men in lead-exposed jobs who wanted to start families should have access to workplace protections that would lower their blood lead levels and make it safer to conceive.

But the men who had tried that approach with Johnson Controls had gotten nowhere. According to court documents from the case, when an employee named Donald Penney, hoping to decrease his blood-lead concentration before attempting to start a family with his wife, asked for a three-month transfer to a low-lead area of the Delaware plant where he worked, he was met with such open hostility that he quit. Similarly, one married couple that worked for Johnson Controls in Milwaukee asked whether the wife could keep her well-paid lead-exposed job if her husband got a vasectomy. The answer was no. Given that most of the company’s factory jobs were held by men, it was easy to see why simply cutting the few women from the assembly line was Johnson Controls’ preferred reproductive-safety strategy. If men were also taken out of rotation to protect fetal health, production would slow down considerably.

Johnson wasn’t alone in its one-sided policy: In the late 1970s, a slew of other companies from Monsanto to General motors implemented fetal-protection regulations of their own. With its lawsuit, the UAW was adding its voice to a growing chorus of women’s rights activists challenging similar policies in court.  All of them relied on Title VII of the 1964 Civil Rights Act, which prohibited discrimination in employment because of race, color, national origin, religion, and sex.  The law had been amended by the Pregnancy Discrimination Act in 1978 to confirm that discrimination on the basis of pregnancy qualified as sex discrimination.

In fetal-protection policies, these activists heard echoes of the same “protective” legislation enacted throughout the early 20th century that barred women from working too many hours, carrying heavy loads, or otherwise over-exerting themselves, all to assure maximum reproductive health. As the Supreme Court noted in a 1908 case upholding Oregon’s law mandating that female laundry workers’ shifts be capped at 10 hours, “the physical well-being of a woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.”

What also hung over the modern fetal-protection debate, if largely unspoken, was the specter of abortion. Specifically, many advocates fighting against policies like Johnson Controls’ believed companies feared that a female employee would unintentionally conceive, continue to work in a lead-exposed job until she learned of her pregnancy, and then choose to terminate the pregnancy rather than give birth to a potentially impaired baby. With anti-abortion protests gaining momentum in the late 1970s and early 1980s, women’s rights activists believed corporate America didn’t want to make itself vulnerable to political controversy.

By the time UAW v. Johnson Controls reached the Supreme Court for oral argument in October 1990, manufacturers and their employees needed resolution.  Four courts of appeals had already ruled on fetal-protection policies and all reached different conclusions. At oral argument, the late Justice Antonin Scalia—a strong opponent of abortion rights—surprised many with his exasperated questioning of the Johnson Controls attorney. Wasn’t the whole point of the PDA to stop treating women like potential incubators and treat them like equal participants in the workplace? Scalia asked. Wasn’t the company’s policy making the statute “a dead letter” and a “ridiculous piece of legislation”? Even more pointed were Scalia’s questions about why Johnson Controls was pretending to create a risk-free place for pregnancy, when the world itself is not a risk-free place. “[Pregnant women] should not smoke cigarettes and drink substantial amounts of alcohol, either,” Scalia observed, “but the Government does not have laws that take the judgment of whether to do it or not away from them.”

When Johnson Controls was decided a few months later, the Court unanimously deemed it a Title VII violation. “[W]omen as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job,” wrote Justice Harry Blackmun. “[T]he absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy.”  Justice Scalia filed a concurring opinion: “By reason of the Pregnancy Discrimination Act, it would not matter if all pregnant women placed their children at risk in taking these jobs,” he wrote. Title VII “gives parents the power to make occupational decisions affecting their families.”

One prominent appeals-court judge pronounced Johnson Controls “likely the most important sex-discrimination case in any court” since Title VII’s enactment in 1964. While he was referring to the hundreds of thousands, likely millions, of jobs opened to women as a result of the decision, the decision rested on an equally important principle, one that still bears noting: It takes two to make a pregnancy, and it takes two to make it a healthy one.