Bias Or

The legal battle against sex discrimination has often pitted the backers of women's rights against paternalistic rules that protect -- and bar -- women from the workplace. The fight appears to have taken a new turn as a result of a major federal decision from the Chicago-based Seventh Circuit Court of Appeals.

In 1982 Johnson Controls of Milwaukee instituted a strict employment policy for women working in its battery-manufacturing division. It excluded women capable of bearing children from jobs that expose workers to certain levels of lead. The reason, said the company, was medical: scientific evidence indicates that exposing a mother to lead contamination can cause serious damage to the nervous system of a fetus.

Several employees and their union challenged the blanket ban, charging a violation of federal discrimination laws. But the Seventh Circuit, siding with the company, two weeks ago concluded that the workers had failed to show that the health hazard could be eliminated by anything less than the sweeping measure in question. Said the court: "The unborn child has no opportunity to avoid this grave danger, but bears the definite risk of suffering permanent consequences."

Calling it "the most important sex discrimination case" since 1964, dissenting Judge Frank Easterbrook, a conservative Reagan appointee, assailed the ruling. Citing research indicating that contaminated men also risk injuring their offspring, he wrote, "No legal or ethical principle . . . allows Johnson to assume that women are less able than men to make intelligent decisions about the welfare of the next generation, that the interests of the next generation always trump the interests of living woman, and that the only acceptable level of risk is zero."

Labor unions, women's groups and civil libertarians denounced the decision, which gives a boost to the fetal-protection policies that are spreading throughout the chemical, rubber, semiconductor and automotive industries. Challenges to such employment practices keep arising, though, and before long one may wind up in the U.S. Supreme Court.