Protecting the Unborn at Work
Case 9.4 Protecting the Unborn at Work
the unobtrusive factory sits behind a hill- side shopping center in the small college town of Bennington, Vermont. Inside, the men and women make lead automobile batteries for Sears, Goodyear, and other companies. However, until the 1990s, none of the women employed there was able to have children. The reason was simple. The company, Johnson Controls, Inc., refused to hire any who could. 119 Why? Because tiny toxic particles of lead and lead oxide fill the air inside the plant. According to the company, the lev-els of lead are low enough for adults but too high for children and fetuses. Numerous scientific studies have shown that lead can damage the brain and central nervous system of a fetus. Moreover, lead lingers in the bloodstream, which means that fetuses can be affected by it even if a woman limits her exposure to lead once she learns she is pregnant. Because of this, Johnson Controls decided that it would exclude women at all fourteen of its factories from jobs that entail high exposure to lead— unless they could prove that they couldn’t become pregnant. The company made no exceptions for celibate women or women who used contra-ceptives. The company’s position was simple: “ The issue is protecting the health of unborn children.” Johnson Controls’s stance was in line with the national Centers for Disease Control’s recommendation that women of childbearing age be excluded from jobs involving significant lead exposure. Because by law its standards must be “ feasible,” Occupational Safety and Health Administration ( OSHA) regula-tions permit chemicals in the workplace that are known to cause harm both to fetuses and to some adult employees. But OSHA holds that employers have a general duty to reduce the hazards of the workplace as far as possible. On this basis, employers such as Olin Corporation, American Cyanamid, General Motors, Monsanto, Allied Chemical, Gulf Oil, and B. F. Goodrich also adopted policies excluding women from chemical plant jobs judged to be hazardous to their potential offspring. Unfortunately, there are relatively few scientific studies of the effect of exposure to toxic manufacturing chemicals on workers’ reproductive health. Only a small percentage of the workplace chemicals with a potential for damaging reproduction have been evaluated, and each year many new chemicals are introduced into factories. Although employers are obviously dealing with many unknowns, no one doubts that they have a moral and legal obligation to control and limit these risks as best they can. Lawsuits and even criminal sanctions have battered companies that have managed hazardous chemicals irresponsibly. Monsanto Chemical Company, for example, agreed to pay $ 1.5 million to six employees because exposure to a chemical additive used for rubber production allegedly gave them bladder cancer. Fetal protection policies aren’t just dictated by management, though. “ Women who become pregnant,” the New York Times reports, “ are beginning to demand the right to transfer out of jobs they believe to be hazardous, even when there is only sketchy scientific evidence of any hazard.” But many women were unhappy about the decision of Johnson Controls. They worried that fetal protection policies would be used to exclude women from more and more work-places on the grounds that different chemical substances or certain tasks such as heavy lifting might be potential causes of miscarriage and fetal injury. In line with this, the United Automobile Workers, which represents many of the Johnson employees, sought to overturn the U. S. Court of Appeals deci-sion that judged Johnson’s policy to be “ reasonably neces-sary to the industrial safety- based concern of protecting the unborn child from lead exposure.” The union contends, to the contrary, that the policy discriminates against women, jeop-ardizing their hard- won gains in male- dominated industries. Many women’s advocates see the issue in slightly different terms. They believe policies like that of Johnson Controls chal-lenge a woman’s right not only to control her fetus but to control her unfertilized eggs as well. In addition, such policies infringe on privacy: By taking a job at Johnson, a woman was in effect telling the world that she was sterile. And there is also the fun-damental question of who knows what is best for a woman. After bearing two children, Cheryl Chalifoux had a doctor block her fallopian tubes so that she couldn’t become preg-nant again. Although career advancement wasn’t the reason she made her decision, it did enable her to switch from a fac-tory job paying $ 6.34 an hour to one at Johnson’s Bennington plant paying $ 15 an hour. Still, she says that the policy was unfair and degrading. “ It’s your body,” she complains. “ They’re implying they’re doing it for your own good.” Cheryl Cook, also a mother of two who had surgery for the same reason, joined Chalifoux in leaving the other company to work for Johnson Controls. She says, “ I work right in the lead. I make the oxide. But you should choose for yourself. Myself, I wouldn’t go in there if I could get pregnant. But they don’t trust you.” Isabelle Katz Pizler, director of women’s rights at the American Civil Liberties Union, agrees. “ Since time immemo-rial,” she says, “ the excuse for keeping women in their place has been because of their role in producing the next genera-tion. The attitude of Johnson Controls is: ‘ We know better than you. We can’t allow women to make this decision. We have to make it for them.’” And the ACLU has argued in court that “ since no activity is risk- free, deference to an employer’s analysis of fetal risk could limit women’s participation in nearly every area of economic life.” To this the company responded that it has a moral obliga-tion to the parties that cannot participate in the woman’s decisions— namely, the unfertilized ovum and the fetus. In addition, the company has an obligation to stockholders, who would bear the brunt of lawsuits brought by employees’ children born with retardation, nervous system disorders, or other ailments that lead can cause. Joseph A. Kinney, executive director of the National Safe Workplace Institute in Chicago, sides with Johnson Controls, but only because he believes that letting women assume the burden of their safety undermines OSHA’s responsibility to mandate workplace safety rules. “ The discrimination side of the issue needs to be resolved,” Kinney says. “ But the ideal thing is to regulate lead out of the workplace and any other toxin that poses fetal damage.” However, the U. S. Supreme Court ruled unanimously that the fetal protection policy at Johnson Controls violated the Civil Rights Act of 1964, which prohibits sex discrimination in employment. 120 Pointing to evidence that lead affects sperm and can thus harm the offspring of men exposed to it at the time of conception, the Court stated: Respondent does not seek to protect the unconceived children of all its employees. Despite evidence in the record about the debilitating effect of lead exposure on the male reproductive system, Johnson Controls is concerned only with the harms that may befall the unborn offspring of its female employees. . . . [ The company’s policy is] discriminatory because it requires only a female employee to produce proof that she is not capable of reproducing. The Court was divided over whether fetal protection poli-cies could ever be legally justified. Justice Harry A. Blackmun, writing for a majority of the Court, declared that they could not, that the Civil Rights Act prohibited all such policies: 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 par-ents. Women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job. Referring to the Pregnancy Discrimination Act of 1978, which amended the 1964 Civil Rights Act and prohibits employment discrimination on the basis of pregnancy or potential preg-nancy, Blackmun added: Employment late in pregnancy often imposes risks on the unborn child, but Congress indicated that the employer may take into account only the woman’s ability to get her job done. A minority of the justices, however, were unwilling to go so far, and in a concurring opinion, Justice Byron R. White wrote that “ common sense tells us that it is part of the normal operation of business concerns to avoid causing injury to third parties as well as to employees.” But he added that, in his view, a fetal protection policy would not be defensible unless an employer also addressed other known occupational health risks.
1. Do you agree that Johnson Controls’s fetal protection policy discriminated against women? Do pregnant women have a moral— not just a legal— right to work with lead?
2. Suppose exposure to lead did not affect sperm or the male reproductive system. Would Johnson’s policy still have been discriminatory? Would it hamper women’s efforts to win equality in the workplace
? 3. Can there be a nondiscriminatory fetal protection policy? Is Justice White correct in arguing that companies have an obligation to avoid causing injury to fetuses just as they do to other “ third parties”?
4. Suppose a company forbids any employee capable of reproducing from working with lead. Would such a policy wrongly interfere with employees’ freedom of choice? Would it be an invasion of their privacy? Would it be fair to employees who are fertile but plan to have no children?
5. Evaluate fetal protection policies from the egoistic, utilitar-ian, and Kantian perspectives. What rights are involved? What are the likely benefits and harms of such policies?
6. If they are fully informed, do employees with a certain medical condition have a right to work at jobs that can be hazardous to the health of people in their condition? Or can company policy or OSHA regulations justifiably prevent them from doing so for their own good?
7. Would you agree with Joseph Kinney that the real issue is the need to remove toxins from the workplace? Is this a realistic goal?
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Protecting the Unborn at Work