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Spring 2000


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21. Alice Sues Her Boss for Sex Discrimination.
Alice is now working for a manufacturer of automobile batteries, the main ingredient of which is lead. Last year her company instituted a policy wherein all female employees, unless they provide proof of sterility, will be barred from any job at the plant with a level of lead exposure likely to pose reproductive hazards. Alice and several female co-workers allege that the policy effectively excludes women workers from virtually all of the typically higher paying manufacturing jobs in the company's plants and hence constitutes a violation of the principle of equality between the sexes. The company argues that the new policy is designed to protect pregnant mothers and the unborn. Does the company's policy amount to sex discrimination? If you were the judge, how would you rule?



Commentary. If you believe such a policy is discriminatory, do you think the discrimination is "overt and conscious." Under existing law, a policy that is "overtly" and "consciously" discriminatory is justified if and only if an employer can show that the discrimination is based on a "bona fide occupational qualification." Is being a man a genuine occupational qualification for jobs with high exposure levels to lead? Is protecting the health and safety of third parties, such as the unborn fetus, a proper concern of the company? What about the company's concern that unless some such policy is put into place the company may be liable for potential, defectively born, children of women employees?

This case, adapted from a recent decision made by the United States Supreme Court in 1991 (International Union, UAW v. Johnson Controls) , and cases like it, serve as useful points of departure for an exploration of what we mean by the phrase "equality between the sexes" and what such a phrase means under our Constitution and our laws.

In 1993, the Citadel, South Carolina's all-male military academy accepted and then rejected Shannon Faulkner, a female high-school student. Faulkner filed suit against the Citadel alleging that the military academy's policy of excluding women violated her right to equal protection under our laws.

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