Posted: September 13th, 2017

Protecting the Unborn at Work

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.

Discussion Questions
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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