A golden Supreme Court argument celebrates silver anniversary

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Saturday marks the 25th anniversary of the finest oral argument I have ever heard — of the hundreds I have attended at the U.S. Supreme Court and the Maryland Court of Appeals.

The Supreme Court case concerned the legality of Johnson Controls’ then-policy of prohibiting fertile women of childbearing age from working in areas that would expose them to lead, such as in the manufacture of car batteries.

The argument, on Oct. 10, 1990, was most notable because the opposing attorneys ignored the conventional advice that if the law is not on your side, argue public policy, and vice versa. Rather, the lawyers each argued that both the law and public policy were on their side.

Attorney Marsha S. Berzon represented a group of women who challenged the company’s “fetal protection” policy as violating the Pregnancy Discrimination Act, a part of Title VII of the 1964 Civil Rights Act. The decision of whether to take on a hazardous job belongs to the woman, not her employer, argued Berzon, now a judge on the 9th U.S. Circuit Court of Appeals.

“In today’s day and age, women in general can control whether or not they are going to have children, and, therefore, in supposing that they will not, the policy is incorporating a negative behavioral stereotype,” Berzon said.

Attorney Stanley S. Jaspan countered that the company’s compelling interest in ensuring workplace safety trumped the federal law.

“We’re not to leave common sense at the doorstep when interpreting Title VII,” said Jaspan, a partner with Foley & Lardner LLP in Milwaukee. “It would violate common sense and the overriding interest in occupational health and safety to require an employer to damage unborn children.”

The Supreme Court ultimately agreed with Berzon in United Auto Workers v. Johnson Controls Inc., No. 89-1215.

That’s my No. 1. Do any of you judges and lawyers out there have a favorite all-time oral argument?

(Sketch by Art Lien, www.courtartist.com).