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Job Bias Plea Clashes With Firm’s Fetus Safety Rules

Times Staff Writer

Queen Foster wasn’t trying to become a martyr. But she thought it wasn’t fair that a Fullerton battery manufacturing firm would deny her a job on the grounds that she was of child-bearing 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 in Fullerton.

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 there is a high lead content in the air.

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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 she had no intention of ever becoming pregnant, the company told her she would not be hired unless she provided medical documentation that she was sterile.

Big Jump in Pay

“A friend told me about the opening and I wanted to make more money. 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 the Southland Corp. in Fountain Valley.

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“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.”

In a landmark decision, the California Fair Employment and Housing Commission decided that 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 to 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. Attorneys for Foster and the commission said that if the case is pursued in court, it could establish legal precedent for fetal-protection policies in California.

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Johnson Control currently 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 Union has 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 last 10 years, but no binding legal precedent has been established.

Foster’s attorney, Patricia Shiu, estimates that thousands of firms have instituted or are considering some type of fetal protection policy.

National attention was focused on fetal-protection policies in 1984 when a federal court of appeals, acting on a suit brought by the federal government, upheld a controversial fetal-protection policy at American Cyanamid Co. in Willow Island, W. Va. American Cyanamid announced that all fertile women who worked in departments where they were exposed to chemicals would be transferred. Five women were sterilized and two others who refused to be sterilized were demoted. In a separate suit, 11 women sued Cyanamid and that case was settled out of court for $200,000.

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Stiff Opposition

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 of the policies 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.

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.”

The Fair Employment and Housing Commission, however, points to medical data suggesting that exposure to lead could affect men either by reducing the amount 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.

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Used Same Argument

The United Auto Workers Union has used the same argument in its fight to force companies to discontinue the practice at unionized plants.

“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,” said Dr. Mike Silverstein, assistant director of health and safety for the UAW. “The same stands should be applied to men and women.”

Dr. Dwight Culver, a professor at UC Irvine and medical consultant for Globe Battery, said research into the effects of lead on the male sperm has been inconclusive and cannot be used to establish safety policies.

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No Effect Seen on Babies

Culver, who supports the company’s fetal-protection policy, said: “It is most unlikely the changes seen in the sperm would have any effect at all on (the health) of children. 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.”

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, showed that health problems and learning disabilities can exist for children whose mothers had less than 20 micrograms of lead in their systems during pregnancy.

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The problem companies face, Culver said, is determining when the damage occurs.

Damage Done Early

“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.

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While many companies said they have an ethical obligation to protect unborn children, they also said such policies are needed to protect them 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 nation filed on behalf of children who suffered birth defects because of their mothers’ work environments.

FO(Southland Edition) Stan Corriea Jr. of Stanley Produce Co., above, with mushrooms distributed by his San Francisco company. Jim Pollock, right, searches for wild mushrooms in Stanislaus National Forest.


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