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Are fetal protection policies
justified in view of employment discrimination?
Christine Noichl-Braun
Southampton College
Historically, women have had only limited or no access to high-paying jobs
traditionally held by males. Under the (hypocritical?) rationale of concern for
healthy mothers and children, some employers have kept women out of certain job
categories. The same rationale, however, did not apply when it came to
backbreaking jobs in traditional female professions such as nursing. The few
women who dared to pioneer in male jobs have experienced discrimination in pay
and advancement. Often, the jobs denied to women were paying more and carried
better benefits than traditional “female” jobs (Annas, 1991).
During the 1970s, the proportion of women in the workforce increased
dramatically (Finneran, 1980). The Department of Labor (1987) published
Workforce 2000 (U.S. Department of Labor, 1997), a report on the changes in
the workforce that showed the increased importance of women of all races and
minority men to the American economy. (It is estimated that women and minorities
will make up 62 percent of the workforce by the year 2005.)
Why should women be
encouraged to enter the workforce and to pursue carriers? Should women have the
same access to all job categories as men? The answer to these questions lies in
the changing demographic composition of America and the dramatic shift from
traditional families to different household make-up. Many of the women working
today do so not out of choice but of need, even if they happen to be married.
Most families cannot subsist by relying on one breadwinner; today, it often
takes two incomes to get by. Furthermore, many families consist of a single
parent with children, the majority of single parents being women. It is only
fair that equal efforts should reap equal rewards, in that a wage gap,
restrictions in job access, and hurdles in advancement for working women affect
not only the women themselves but family income in general.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment
on grounds of race, color, religion, sex, or national origin. The only
justification under Title VII for discriminating on the basis of religion, sex,
or national origin is if the characteristic is a “bona fide occupational
qualification (Annas, 1991).” Therefore, women may not be legally excluded from
jobs without a proven relation of gender to job performance, or except if the
characteristic is a “bona fide occupational qualification” and reasonably
necessary to the normal operation of that particular business or enterprise. The
federal Pregnancy Discrimination Act of 1978 goes one step further in addressing
specific female concerns and prohibits sex discrimination based an pregnancy,
childbirth, or related conditions. Discrimination can consist either of
disparate treatment or of policies, practices and procedures not justified by
business necessity and with disparate (adverse) impact.
Women and men are different
Some
of the differences are due to socialization and modeling, but some seem to be
innate. The recent run on girls’ schools is partly explained by research
findings that girls and boys learn differently (Lewin, 1999); boys have a
quicker reaction time, tend to dominate class discussions and prefer specific
activities, spending more time in the
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block area. Even as males and females grow up, they may have different patterns
of thinking and behavior. In terms of simplistic generalization, women tend to
have a different style of negotiations, slightly different priorities and
values, and a focus rather on long term as opposed to quick fix solutions. In
the legal profession, women are known to often challenge the “take-no-prisoners”
style of their male colleagues (Torry, 1996). Many men acknowledge that some
women have a superior ability to “Cut through the fluff” and still maintain
fruitful working relationships. Even as these differences carry over to the
workplace, in most jobs, sex does not affect the ability to perform the core
tasks of the job. Therefore, in the majority of cases, discrimination based on
sex is not warranted.
However, there is one aspect of life where gender equality is impossible or at
least debatable: women can bear children and men cannot. Every patriarchic
society has nurtured deep resentment over the relative power of women stemming
from this fact of life. Religion, law and medicine have traditionally teamed up
to enforce the patriarchic agenda and to ensure that women will behave as their
fathers, husbands, and sons think they should. In this context, control over
women’s reproductive capacity takes center stage, with regulations concerning
birth control, female adultery, the mutilation of female sex organs, and rules
of socially acceptable behavior. In past centuries, hundreds of midwives and
“wise women” with knowledge of birth control have been burned on the stake
(Robbins, 1997). The endless and bitter war going on at the porches of abortion
clinics all over the US (and not only the US) is an outgrowth of this agenda.
Abortions touch on one issue that is unresolved and therefore remains hotly
debated: Who has the ultimate control over the female body and over unborn
children? Who is ultimately responsible for the wellbeing of unborn children?
Feminists and equal rights activists maintain that the age of (even
“benevolent”) paternalism is over and that women should have the power to decide
these issues. This question may seem of rather ethical and academic nature, but
has had some very practical impact on employment court cases in view of
workplace hazards.
At
the same time in the 1970s that the participation of women in the workforce
increased, equally scientific knowledge expanded concerning exposure to hazards
in the workplace. Simultaneously, public awareness dramatically increased as to
the possible consequences of exposure to some of these hazards for the next
generation: miscarriage, stillbirth, and birth defects (Finneran, 1980).
However, the Equal Employment Opportunity Commission in collaboration with the
US Department of Labor issued Interpretive Guidelines on Employment
Discrimination and Reproductive Hazards on February 1, 1980, affirming that: “An
employer / contractor whose work environment involves employee exposure to
reproductive hazards shall not discriminate on the basis of sex (including
pregnancy or childbearing capacity) in hiring, work assignment, or other
conditions of employment” (Finneran, 1980). This position, given that it is not
based on the precise scientific and medical evidence, can be perceived as an
erroneous and indefensible legal standard.
In
the workplace, there are two main types of health hazards that can attack the
reproductive system. Mutagens cause mutations in the plasma of germ cells and
change the genetic material or information encoded in the sperm of male
employees and the ova of female workers. The damage results from the union of
mutated cells and
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is
then passed on, in unpredictable ways, to the next generation. Mutagens affect
men and women alike, and therefore, both male and female employees must be
equally protected against them. OSHA regulates the exposure of employees to
toxic materials and other quiet workplace hazards lurking in nasty substances,
as well as exposure to physical conditions with mutagenic effect like radiation,
etc.
More
troubling than mutagens are teratogens. Teratogens attack the developing embryo
in the womb at the earliest stages of a pregnancy, when not even the woman
herself may know that she is pregnant. The placenta acts like a filter for many
harmful substances and for infections. Teratogens harm the fetus by somehow
passing through the placenta during the critical first trimester of the
pregnancy and by causing developmental malformations. By the time the woman
becomes aware of her pregnancy, the damage is already done. Exposure to
teratogens can signify that the child may be so severely injured that it will
die within the first months of the pregnancy; however, some fetuses will survive
and will be born with more or less severe birth defects.
Birth defects accounted for more than 21 percent of all infant deaths in 1991
and are the leading cause of infant mortality in the US (“Surveillance…” 1980).
About 5 percent of the 100,000 to 150,000 children born every year with a major
birth defect (corresponding to 3 – 4 % of all infants) die before their first
birthday. Birth defects contribute substantially to childhood morbidity, mental
retardation and long-term disability. The costs for the care of children with
birth defects are enormous and estimated to exceed $1.4 billion annually. A
birth defect is defined as a structural abnormality present at birth, and the
condition ranges from malformations (cleft lips and palates, for example) over
deformations (clubfeet) to disruptions (breakdown of normal tissue). Birth
defects are classified as major or minor and most of them occur as isolated
defects, although 20 – 30 percent of affected infants suffer from multiple
defects. This means that the defects occur in different organ systems or body
sites, are not related to the same stage in embryo development and do not have a
common underlying defect.
Two
government agencies (the National Institute of Child Health and Human
Development CDC and the National Center for Environmental Health’s Centers for
Disease Control and Prevention) and private, nonprofit organizations like the
March of Dimes collect data about birth defects. A Birth Defects Monitoring
Program is conducted by the CDC’s Birth Defects Branch. The objective is to make
the program nationwide and use it as a screening tool for geographic clusters
and general trends. Before 1981, only Nebraska and New Jersey had laws that
required reporting birth defects to the state health departments. In the
meantime, the number of states participating has increased to about 20, but
legislation differs widely among them as to the scope of data they collect
(maternal, paternal and infant data) (Lynberg and Edmonds).
The
prevention of birth defects is difficult, given that the specific causes of most
(75%) are unknown. There are at least 3,000 types of birth defect syndromes, and
a total of 161 categories of birth defects are currently analyzed quarterly to
determine increases or other unusual trends. The BDMP functions primarily as an
early warning system that is useful for correlating the incidence of birth
defects with such trends as the temporal and geographic distribution of drugs,
chemicals and other possible teratogens. Early intervention and information of
families about recurrence risks are also part of the monitoring programs.
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(One
lucky hit in this context, for example, has been the link between folic acid in
nutrition and the occurrence of spina bifida and anencephaly. Randomized
clinical trials in the United Kingdom established the correlation and led the
FDA to require that enriched cereal grain products must be fortified with folic
acid.)
Identifying teratogens is like searching a haystack for the famous pin. A
national monitoring program can help to recognize a birth defect epidemic
resulting from the introduction of a new teratogen or increased exposure to old
ones in a timely manner. As most teratogens are associated with a spectrum of
birth defect combinations, the data collection and analysis need to be
comprehensive and sophisticated. Several human teratogens have been identified
up to date, spanning a wide field from ultrasound, pesticides, lead (as in
paint), severe exposure to carbon monoxide (as of leaking furnaces) and all the
way to congenital rubella. Exposure to any of these factors during the critical
first trimester of a pregnancy can lead to fetal death or serious toxic effects,
such as anatomical malfunctions and changes in psychomotor and mental
development (Norman and Hamilton). Some teratogens even accumulate over the time
of exposure, remain in the body, and may affect fetuses long after the exposure
has ceased.
In the 1980s and early
1990s, the complexity of the issue led some employers to adopt fetal protection
policies. The policies aimed at excluding all potential embryo carriers from
jobs where there was a possible exposure to teratogens. The result was that many
jobs that were better paying and provided more extensive benefits were thus
denied to any women of childbearing age not provably sterile. Without a very
persuasive scientific justification for the differential treatment, employers
exposed themselves to the allegation of disparate treatment and violation of
Title VII. The questions raised in court dealt with gender equality, fetal
rights and employer responsibility for occupational health and safety.
A
landmark case against fetal protection policies was International Union, United
AutoWorkers v. Johnson Controls, Inc. (U.S. Sup CT., 55 FE PCases 365) (Annas,
1991; Finneran, 1980). Since 1977, Johnson Controls had advised women not to
take jobs involving exposure to lead, and upon consulting medical experts, the
company changed to excluding women from these jobs in 1982. In 1984, a
class-action suit challenged the policy, and it went all the way to the Supreme
Court. In March 1991, the Court held that these policies constitute disparate
treatment on the basis of sex and are therefore illegal. The welfare of fetuses
not yet conceived was perceived as neither at the core of the employee’s job nor
as the essence of the business of Johnson Controls, but in direct conflict with
the Pregnancy Discrimination Act. The ruling in the case applies to all
employers engaged in interstate commerce, as well as hospitals and clinics. Some
heralded the decision as a victory for women and worker’s rights, but at the
same time it was highly controversial because it pitted the job rights of the
pregnant worker against the health of the fetus. It ignored the fact that the
risks are due to intra utero exposure and therefore reinforced the popular
misconception that workplace toxins pose the same reproductive risks to men as
to women. This is only correct considering the fetuses. The real issue is that
no fetuses are at risk if a man is exposed to teratogens in the workplace, but
there might be if a woman is.
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The
ruling contained several ambiguities (Samuels, 1996). The majority under Justice
Blackmun hinted that a fetal protection policy might constitute a bona fide
occupational qualification if the potential tort liability threatened the
solvency of the business. The two concurrent opinions provided further
loopholes. Justice Byron White wrote that fetal protection policy might be
permissible if it “was reasonably necessary to avoid substantial tort liability”
but at the same time warned that the case might be used to undercut certain
privacy rights. Justice Scalia contended that a fetal protection policy might be
justified under a cost-based defense. Altogether, the ruling provided little
guidance for lower courts, and some of them have adopted contradictory views and
interpretations of some of the central tenets of the case in subsequent years.
The
Johnson Controls case has been cited in the ongoing debate between advocates of
“equal” versus “special” (preferential) treatment of pregnant women in the
workplace (Annas, 1991; Finneran, 1980). The advocates of “special” treatment
contend that pregnancy is unique and that employers must accommodate needs of
pregnant women. Fetal protection policies bar women because they are “special”
in the sense that they can become pregnant and carry a fetus. The ruling in the
Johnson Controls case seems to suggest that the Supreme Court leans towards the
“equal” position.
In
California Federal Savings and Loan Association v. Guerra (4799.U.S.272 US
Supreme Court, 1987), the Court ruled, however, that although the PDA does not
require employers to give special treatment, it does not prohibit preferential
treatment. Female rights advocates contend that some courts still place women’s
procreative role above all other roles, see them as primarily biologic instead
of economic actors, and seem to permit discrimination when necessary to protect
this role. In Hargett v. Delta Automotive (799 FSupp 326), for example, the
court continued to see "fertile" women as a distinct class of people and ruled
that the distinctiveness justified differential treatment.
Under federal law, the employer’s only appropriate criterion (as under the ADA)
is whether the pregnancy affects the women’s ability do perform the major
functions of her job. A woman may be put on leave or alternative duties if her
pregnancy makes her physically unable to fulfill her regular duties, or if the
work might endanger her own health or public safety. (An example might be female
employees of a telephone company who, due to reduced agility and the shift in
the center of gravity, can no longer safely climb telephone poles).
Johnson Controls was sued under Title VII and not under OSHA or the Toxic
Substances Control Act. Accordingly, the Supreme Court decision failed to
address the larger issue of workplace health and safety and the employer’s
responsibility for providing a safe workplace. Instead of improving the overall
conditions for all employees (male and female alike), the ruling left women in
the same position as men to “choose” employment in dirty, hazardous workplaces.
In that sense, the Johnson Controls ruling amounts to a step backward for all
employees.
Other issues the Supreme Court did not resolve are the ability of employers to
control their costs by limiting tort liability. In the ruling, the Court
concluded that liability for the employer seemed “remote at best”, if the
employer followed OSHA guidelines and fully informed its workers of the risks
involved, given that the child would have to prove
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negligence (Annas, 1991). The main concurring opinion of Justice Byron White,
however, hinted that even in the absence of negligence, employers might be held
strictly liable under certain circumstances. The confusion, therefore, is
complete.
Under the traditional view, mothers and fetus were inseparable. Only the mother
could receive compensation for workplace injuries and was covered under the
worker’s compensation system. The Workers’ Compensation Appeals Board
exclusively decided injuries within the course and scope of employment. Major
exceptions to this exclusive remedy doctrine were cases dealing with intentional
torts, injuries sustained from operating a power press and damages that occur as
a result of “fraudulent concealment” of a known toxin. All other lawsuits were
barred under workers’ compensation laws, which is a no fault system.
Recently, the view of courts shifted. The ruling in the Johnson Controls case
did not address the issue of fetal rights. However, under current law, fetuses
are treated as third parties (“Worker’s Compensation…” 1999). In 1997, the
California Supreme Court decided accordingly that children may sue their
mother’s employer for fetal injuries sustained in utero that are due to unsafe
work conditions during pregnancy (Mikaylam v. Michael’s Stores 97 Daily Journal
D.A.R. 13501). As the employer would have been liable to any third party
customers, employers may now be liable in civil court when pregnant workers are
exposed to conditions that hurt their fetus. The Court reasoned that the
“Compensation Bargain” underlying the workers’ compensation system does not
include third party injuries. The mother cannot sign a waiver for her fetus, as
the compensation belongs to the baby, the third party, and not to the mother. As
there is no cap on damages to third parties, this has serious implications for
any employer. Injuring a fetus can be catastrophically expensive.
In
Texas, parents of children born alive with birth defect caused by prenatal
injuries have cause of action under the wrongful death statute if the child dies
as a result of the birth defects (Finneran, 1980). Texas courts have not decided
yet whether to declare a fetus a person within the meaning of the wrongful death
statute, which would mean that parents of stillborn children could also sue.
Surviving children with birth defects would be able to sue for personal
injuries, pain and suffering, loss of earning capacity and any other damages. As
the damages question is largely left to the discretion of the jury, and in view
of the “deep pocket syndrome”, many employers are very concerned about
potentially large tort recoveries.
Can
the employer decide what is best for the fetus and ban the mother from unsafe
workplaces to protect the company from litigation? The answer is no, according
to UAW v. Johnson Controls, Inc. The Supreme Court, in the Johnson Controls
case, found that “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” (International
Union v. Johnson Controls, 111 S.CT. 1196, 1991).
Employers also
cannot automatically reassign pregnant employees to areas without exposure to
work hazards (EEOC v. Sundstrand Corp., D.C. N. IL, No. 92-C-20287, 1995) or be
placed on involuntary medical leave without their doctors agreement (Deneen V.
Northwest Airlines, Inc, 8th Cir, WL 1829, 1998). Companies can only inform
employees of the risks involved in each position and must leave the decision to
the pregnant employee whether or not to continue working (“Discrimination…”
1999).
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The
role of the company is to warn employees of potential risk and to provide
alternative employment opportunities to the women if she becomes pregnant. The
risk assessment must be based on scientific evidence. If the woman makes an
informed choice to expose her fetus to workplace toxins, the employer cannot
interfere. According to six out of nine Supreme Court Justices, state tort
liability is preempted so long as the employer follows federal law, informs
workers of the risks, and is not negligent (Annas, 1991). However, as mentioned
above, subsequent court rulings have been contradictory.
Opponents of fetal protection policies argue that it is useless and unfair to
worry future mothers with accounts of minimal risk factors from workplace
teratogens. Instead, they should be made aware and conscious of the
scientifically proven and established risk for fetal health resulting from
smoking, alcohol and drug consumption. Women’s rights advocates claim that it is
entirely the future mother’s choice to determine how she will treat the fetus
and whether she will give birth at all. They usually fail to mention that rights
are tied to responsibilities. Logically, if a woman can decide to have an
abortion, which by some is regarded as the worst thing she can do to the fetus,
why should there be any other restrictions on conditions she may inflict on it?
To my mind, the difference is that an unborn child will not be a burden to any
one, except to its mother’s conscience. On the other hand, a child born with
birth defects can pose a strain exceeding any family’s budget and the burden
will ultimately have to be shouldered by society as a whole. Can a future mother
assume a responsibility surpassing her realm of influence (because the child may
survive her) and her family's means? I think that this constitutes negligence at
worst and arrogant stupidity at best.
As
the parties at risk by teratogens are fetuses of both male and female sex, the
charges of sexual discrimination are debatable, even when only pregnant women
are directly affected. The issue might be perceived rather as a neutral health
issue than a sex-based decision.
Interestingly, some states seem to contend that somebody has to protect the
unborn children against the uncurbed exercise of individual rights by their own
mothers (The New York Times, 1998). South Carolina's Supreme Court ruled that a
viable fetus is legally a child and that the future mother who exposes it to
detrimental influences can be prosecuted for child abuse. Accordingly, the
court, in a very controversial ruling, sentenced Malissa Ann Crawley, who had
been smoking cocaine while being pregnant, to five years in prison. On July 1,
1998, South Dakota, as another example, became the first state to allow judges
to order pregnant women who drink into alcoholism treatment (“Pregnant
Drinkers…” 1998). The Governor or Wisconsin was also expected to sign a bill
that would permit the state to take pregnant women abusing drugs or alcohol into
custody (“In America…” 1998). South Dakota and Wisconsin seem to be aware of the
fact that it is cheaper to treat mothers with addiction problems than to
imprison them. Still, these are extreme measures. Some contend that in order to
prevent misery and hardship resulting from avoidable birth defects, the end
justifies the means. If pregnant women cannot be expected to voluntarily watch
out for the best of their babies, the consensus in South Dakota, Wisconsin and
South Carolina seems to be that they should be nudged by legal measures.
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The
party at risk, the fetus, cannot consent to being exposed to potentially harmful
substances, be it in the workplace or elsewhere. As a whole, it is still up to
the mother to make the decision. There is nothing wrong with this as long as the
choice is real and is an informed choice. Opponents of fetal protection policies
argue that the policies tend to suffer from over-inclusiveness, as they also
affect women planning to delay or avoid childbearing (this does not take into
consideration that some teratogens accumulate, as said above). In an age when
many participants in the workplace lack elementary math and reading skills, do
we really expect these employees to make informed choices about their
pregnancies? Unwanted pregnancies happen all the time, and even planned
pregnancies are unpredictable. Will a pregnant single mother of two really
switch to a less paying job in order not to hurt the next baby? She might under
some circumstances, but the odds are against it. More probably, she will hope
for the best and try not to think about birth defects unless she has to, that is
when she is confronted with the fait accompli. I think it is highly immoral and
hypocritical of a society to present a pro forma choice to people who do not
really have alternatives, and then to push the burden of guilt on them in
addition.
The
embryo is the most vulnerable workplace participant. According to John Rawls’
theory of justice (Rawls, 1971), every law must protect the least favored
members of society. If a society is to be judged by these standards, then it
will have to defend unborn children from workplace hazards in case their mothers
are not in the position to make the right choice. For the sake of the next
generation's welfare and society's welfare as a whole, some individual pseudo
rights aimed at short-term material gain may be worth sacrificing. The real
issue in fetal protection is that, in the long run, society should aim at
eliminating workplace hazards altogether; in the meantime, women of childbearing
age who are not proven sterile should not be working in jobs where they are
exposed to identified teratogens.
References
Annas, George J. “Fetal protection and employment discrimination – The Johnson
Controls Case.” The New England Journal of Medicine, vol. 325, no. 10,
September 5, 1991, pp. 740-743.
“Discrimination – Pregnancy Discrimination”, Alexander Hamilton Institute’s
Employment Law Resource Center WebPage – FAQ’s, April 1999.
Finneran, Hugh M. “Title VII and Restrictions on Employment of Fertile Women.”
Labor Law Journal, vol. 31, no. 4, April 1980.
“In
America, Hidden Agendas.” The New York Times, June 14, 1998.
Lewin, Tamar. “Girls Schools Gain, Saying Coed Isn’t Coequal.” The New York
Times. April 11, 1999.
Lynberg, Michele C., Ph.D., M.P.H., and Larry D. Edmonds, M.S.P.H. “State Use of
Birth Defects Surveillance.” CDC web site/ Birth Outcomes.
The
New York Times Magazine,
June 11, 1998, op-ed column.
Norman and Halton. NIOSH, CDC web site, Work-Related Injuries in Minors,
“Is Carbon Monoxide a Workplace Teratogen? A Review and Evaluation of the
Literature.” Annals of Occupational Hygiene, Vol. 34, No. 4, pages 335 –
347.
“Pregnant drinkers face a crackdown”, The New York Times, May 24, 1998.
Samuels, Suzanne U. “The Fetal Protection Debate Revisited: A Study of the
Implementation of U.A.W. v. Johnson Controls in the Federal and State Courts.”
Women’s Rights Law Reporter. Vol. 17, 1996. pp. 209 – 219.
Torry,
Saundra. “ For Women, it's the Same Old
Story on Sexism “(The American Bar Association's Report). Washington Post.
January 8, 1996.
“Workers’ Compensation, Superior Court Finding.” Malek Law Home Page, April
1999.
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