Ellen Goodman

The Boston Globe

Johnson Controls didn’t have a mommy track. What they had was something different. It was a Maybe, Could-be, Might-Someday-Be-A-Mommy track.

The company had a policy that assumed every fertile woman was a pregnancy waiting to happen.

They banned these women from working in jobs with high exposure to lead on the grounds that some unborn—indeed unconceived—children might eventually suffer damage.

Johnson called this a “fetal-protection policy.” So have many other companies. But it is not too cynical in these lawsuit-phobic days to call it a “company-protection policy.”

In either case, the Supreme Court came up with another name for this policy. They called it sex discrimination and said it’s illegal.

With rare unanimity, the court ruled (March 20) that Johnson can’t ban every fertile woman—from menses to menopause—because of fear of health risks or lawsuits.

They said that federal laws against sex discrimination clearly prohibit an employer from barring women from hazardous jobs.

To have lost this landmark case would have been disastrous for the millions of women who work in any remotely hazardous workplace, whether with lead or computer chips, in hospitals or even airplanes.

As Justice Harry Blackmun wrote, “Concern for a woman’s existing or potential offspring historically has been the excuse for denying women equal-employment opportunities.”

But if the Johnson Controls case closes one chapter of history, it doesn’t by any means close the book.

In the wake of this decision, women have shored up their right to equal treatment in the workplace. We still haven’t decided what that equal treatment should look like.

Remember when women set their eyes on the prize of equality? The target of the early laws against sex discrimination was the double standard.

Many assumed that the single standard-bearer was male. Equality would arrive in all its golden glory when women were treated exactly like men.

That never seemed like a wholly attractive option. Some women who saw how their male counterparts lived divided into two camps. One said, if that’s equality, I’ll pass.

The other held onto the ideal of equality, but began to frame it as part of their vision of different life for both men and women.

This has been at the crux of the argument between those who settle for mommy tracks and those who want parenting trails, between those who would opt for maternity leave and those who hold out for family leave.

The Johnson Controls story is part of this debate. Women who work with lead can indeed endanger a fetus. But so can men.

Johnson tried to turn questions of the workplace into questions of gender. Their mommy-to-be track created sex discrimination without solving the problem of fetal damage.

The court in turn resolved the issue of inequality but not of safety.

They ruled that women have the equal right to decide, whether or not they want equal work at equally hazardous jobs and even whether some want to equally risk damaging their features.

Talk about your dubious rights.

Justice Blackmun wrote, “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.”

That’s fine as far as it goes, but does it mean that bosses can be irresponsible as long as they are equally irresponsible to all workers and their offspring?

“This decision denies employers the right to make corrections that are at best half a loaf,” says Phyllis Segal, president of the NOW Legal Defense and Education Fund.

But she adds, “if we are to value healthy offspring and deal with workplace safety, we need a whole loaf.”

The Supreme Court wiped the ancient, stale crust of sex discrimination off the table. The case had not only threatened women’s rights, but as often happens, it had clouded the real issue of the dangerous workplace.

The question moves now from the courts to workers, employers, legislators, regulators.

What will this equal workplace look like? Safe or hazardous? Men and women both share a stake in the outcome.