A Woman’s Place . . . : Plant’s Policy to Protect Unborn Clashes With Job Bias Rules
Queen Foster wasn’t trying to become a martyr. But it didn’t seem fair to be denied a job with a Fullerton battery manufacturing firm because she was of childbearing age.
When Foster, 34, of Orange filed a job discrimination complaint with the state Department of Fair Employment and Housing, the only thing she wanted was a shot at the $9-an-hour job operating a machine that assembles batteries at Johnson Controls Inc.’s Globe Battery Division.
But now she is at the center of a legal battle that pits the rights of California women to work where they wish against policies intended to protect the health of unborn children.
The company refused to hire Foster in 1983 because of a policy that bars women who are capable of bearing children from working on assembly lines where the air has a high lead content.
Johnson Controls, the Milwaukee-based parent company for a chain of automotive battery plants, adopted the so-called “fetal-protection policy” in 1982 out of concern that exposure to high levels of lead could cause birth defects, said Denise Zutz, a corporate spokeswoman.
Even though Foster, who is single, insisted that she has no intention of ever becoming pregnant, the company told her she would not be hired unless she provided medical documentation that she is sterile.
“A friend told me about the opening, and I wanted to make more money,” she said.
“At the time, I was making about $5 an hour doing clerical work. That would have been a big jump for me,” said Foster, who now earns $7.50 an hour in the accounting department of Southland Corp. in Fountain Valley.
“I told them during my (physical) exam that I didn’t intend to have any children, but they told me I needed papers showing that I couldn’t have children. To me, discrimination was the issue. I don’t think it was fair.”
In a landmark decision, the Fair Employment and Housing Commission decided the fetal-protection policy was discriminatory and ordered the company to drop it. The commission also ordered the company to pay Foster $16,000 for wages she would have earned.
Johnson Controls filed a lawsuit challenging those findings, and Orange County Superior Court Judge William F. McDonald last week ordered the commission to reconsider its decision and hear additional arguments from Johnson.
The commission, which will meet in San Diego on Thursday, must decide whether to follow McDonald’s order or appeal the case to the state appellate court. If the case is pursued in court, attorneys for Foster and the commission said, it could establish legal precedent for fetal-protection policies in California.
Johnson Controls is involved in two other sex discrimination lawsuits brought by unions over the company’s fetal-protection policy. In January, a federal judge in Milwaukee upheld the policy, and the United Auto Workers filed an appeal. Another suit, brought by the Allied Industrial Workers Union, is pending in federal court in Milwaukee.
Fetal-protection policies are legal in the United States. At least five discrimination suits have been filed in lower courts during the past 10 years, but no binding legal precedent has been established.
Foster’s attorney, Patricia A. Shiu, estimates that thousands of companies have or are considering some type of fetal-protection policy. At least 15 of the Fortune 500 companies, including Exxon, Du Pont, B.F. Goodrich and Olin, have adopted such policies.
Ruling in 1984
National attention was focused on the issue in 1984 when a federal appeals court, acting on a suit brought by the federal government, upheld a controversial fetal-protection policy at American Cyanamid Co. in Willow Island, W. Va. Cyanamid announced that all fertile women who worked in departments where they were exposed to chemicals would be transferred. Five women chose to be sterilized and two others who refused to be sterilized were transferred and demoted. In a separate suit, 11 women sued Cyanamid and received an out-of-court settlement totaling $200,000.
Women who apply to an Anaheim battery manufacturing plant run by the Delco Remy division of General Motors, also must present medical proof of sterility, personnel director Al Wichmann said.
“We explain it during the interview process and when we are looking at applications,” he said. “Many of our applicants already are aware of the policy. There have been no complaints that I’m aware of.”
The policies have run into stiff opposition from women’s organizations and civil rights advocates who argue that they are merely discrimination in a new disguise. Opponents claim that they violate the civil rights of women by barring them from higher-paying, heavy industrial jobs that historically have been held by men.
The problem with fetal-protection policies, according to Shiu, an attorney for the Legal Aid Society in San Francisco, is that they pit two federal work requirements--equal employment opportunity and employee safety--against each other.
Discrimination Issue
“When you have a situation where there is an overtly discriminatory policy . . . and the rationale . . . is to protect the unconceived fetuses of female workers, it takes something away in the achievement of equal employment opportunity,” Shiu said.
“You can’t have a policy that discriminates against blacks . . . and says blacks need not apply. The employer has to come up with a bona fide reason, and it has to relate to performance. That’s what the law says. The same applies when you get into sex discrimination.”
Jim Cox, plant manager at Globe Battery, said: “Our policy is directed toward protecting unborn children. A lot of times, people may not know just when they become pregnant, or they become pregnant without planning it. Medical research tells us that a fetus must be protected against much lower levels of lead than adults. To do that, there is no other way that we know but to protect the mother or the potential mother from those levels.
“This is a fetal-protection policy, not necessarily a female-protection policy. We have other policies for our workers. If a man ever carries a fetus . . . he would be affected too.”
The Fair Employment and Housing Commission, however, points to medical data that suggest exposure to lead could affect men either by reducing the number of sperm they can produce or by causing abnormalities in the shape of the sperm, said Beverly Tucker, a deputy attorney general who represents the commission. The data suggest that such abnormalities in the sperm could affect a fetus.
UAW’s Position
The United Auto Workers has used the same argument in its fight to force companies to discontinue the fetal-protection policy at unionized plants. Dr. Mike Silverstein, assistant director of health and safety for the UAW, said the solution is for companies to provide a safe work environment by lowering the level of exposure.
“Our fundamental belief is that chemical exposure that threatens the reproductive health of men or women in the workplace or the fetus needs to be controlled so people can work there safely,” Silverstein said. “The same standards should be applied to men and women.
“Fetal-protection policies are very analogous to the mentality that was expressed by an Army officer during the Vietnam War who said, ‘We had to destroy the village in order to save it,’ ” Silverstein said. “We are very concerned about policies that exclude women from jobs and limit their ability to earn a decent living with the justification that this is somehow good for them.”
Dr. Dwight Culver, a professor of occupational medicine at UC Irvine and medical consultant for Globe Battery, said research on the effects of lead on male sperm has been inconclusive and cannot be used to establish safety policies.
“It is most unlikely the changes seen in the sperm would have any effect at all on (the health) of children,” Culver said. “There is a reduction in the number and a reduction in mobility, so there could possibly be a decrease in the number of children a man could produce,” he said.
The federal Occupational Safety and Health Administration’s limit for safe exposure to lead in the workplace is 50 micrograms per cubic meter of air during an eight-hour period. Lead has been found to cause health problems for male and female employees who receive more exposure.
Research in the United States documents the effect of lead on fetuses and the female reproductive system. The most widely accepted study, conducted at Harvard Medical School, found that health problems and learning disabilities can show up in children whose mothers had less than 20 micrograms of lead in their systems during pregnancy.
The problem companies face, Culver said, is determining when the damage occurs.
“In many cases where a chemical produces damage to an unborn fetus, the damage is done during the first trimester, and frequently during the first few days of pregnancy. Since there is no way of telling very early in pregnancy whether a woman is pregnant, there is no way to know when to remove her from the premises,” Culver said.
“Lead doesn’t just automatically drop out of the body as soon as you remove the person, it comes out at a rate of about 50% every 30 days,” he said.
While many companies say they have an ethical obligation to protect unborn children, they also say such policies are needed to protect employers from personal injury lawsuits. However, Brian Hembacher, an attorney for the state Department of Fair Housing and Employment, said he knew of no lawsuits in the United States filed on behalf of children who suffered birth defects because of their mothers’ work environments.
FERTILITY HAZARDS AT A GLANCE
Partial list of substances known or suspected to cause damage to the male or female reproductive systems:
Lead, radiation, PCBs, organic mercury, hexachlorobenzene, vinyl chloride, anesthetic gases, ethylene thiourea and hexaflouroacetone. The precise level at which exposure to these chemicals cause damage has not been clearly determined.
Companies that tend to have fetal-protection policies:
Automobile manufacturers, battery manufacturers, pharmaceutical companies, hospitals, lead smelters, chemical production companies, tire manufacturers and oil companies.
Potential injuries:
Research has shown that toxins can cause sterility, infertility, miscarriage, stillbirth, damage to sexual organs, sperm abnormality, lower sperm count, learning disabilities in children and birth defects.
Scope:
Nobody knows exactly how many companies have fetal-protection policies or how many employees are affected by them. Activists estimate that about two-thirds of all working women and about 100,000 jobs would be affected if every company that has a hazardous workplace adopted a fetal-protection policy. The policies are targeted at women between 15 and 45 years of age.
