COMMENTARY : ‘Fetal Protection Policy’: Fertile Ground for Discrimination

Queen E. Foster, an African-American woman from Anaheim Hills, was confronted with a profound decision affecting her livelihood and her life--a decision that no man has had to face. In November of 1982 she was offered an unskilled position at a lead battery plant at $9 an hour--a substantial wage increase from her current pay of $5 an hour.

However, in order to qualify for the job, Foster was required to submit proof that she was not fertile. The company, in its apparent protective concern for the well-being of women and their future offspring, had adopted a policy prohibiting women from working in jobs involving exposure to lead unless they provided medical proof that they were unable to have children. The company did not extend its gratuitous concern to men and their unborn children; men were free to be hired regardless of their fertility. Women were not.

The company codified this solicitude for female workers and their reproductive health in a so-called “fetal protection policy.” The underlying assumption of the policy is that women are forever potentially pregnant and they alone can harm their future offspring by being exposed to lead.

The policy has excluded women from 95% of the company’s jobs. It is interesting to observe that the company, prior to instituting this policy, never tracked the pregnancies or the offspring of any of its workers to substantiate any of its assumptions about the singular vulnerability of women to lead exposure. In fact, scientific studies suggest that lead is harmful to both men and women who are fertile.

The company’s motive for instituting its policy then does not seem to emerge from a deep philosophical belief that employees’ offspring must be protected by employers and not by parents-to-be. Instead, it is more self-serving: fear of possible tort damages arising out of harm caused by lead exposure. Exclusion with a paternalistic patina was the solution.

These so-called “fetal protection policies” are becoming more common across the nation; women by necessity are seeking better paying jobs from which they have been traditionally excluded because of sex discrimination. These jobs are often in industries where chemicals and other hazardous materials pervade the workplace. They are often sought by women of color who are single heads of households. Again, women’s reproductive capacities joined with outmoded yet persistent stereotypes continue to deny these women access to better paying unskilled or semi-skilled jobs, forcing them and their families down to the bottom of the economic ladder.

All workers are entitled to a healthful and safe working environment and employers are responsible for providing it. But for an employer to insist on a risk-free workplace as a condition of employing women is to hark back to the protective legislation enacted at the beginning of this century. Progress cannot be rolled back nearly 100 years to where women were viewed as Victorian broodmares, holding sole responsibility for the production of healthy offspring.

There is a curious twist to this deeply troublesome issue. Poor women, many of whom do not speak English and work in predominantly low-paying jobs such as in the agriculture and electronics industries, are not subjected to these self-proclaimed “fetal protection policies.” Little interest in their health and safety on the job exists; these female workers are so disempowered and dependent upon their marginal pay that employers have no fear of future liability. These employers’ concern for the well-being of female workers and their potential offspring suddenly evaporates.

The California Court of Appeal in Orange County recently considered the legality of the lead battery company’s so-called “fetal protection policy” and in a groundbreaking decision struck it down. The opinion is one of a few in the nation that recognizes the right of women to make their own choices and decisions regarding their reproductive health in the workplace. The court aptly noted that the company’s policy “is predicated upon the presumption that the employer is better suited to safeguard the interests of a woman’s future offspring, should there be an unexpected pregnancy, than is the woman herself.”

The company’s policy relegates women to a childlike status, deeming them unable to make responsible choices for themselves and their families. It also concludes that men need not be bothered with these problems as they have no interest in and nothing to do with their own reproductive health and the well-being of their offspring. Men and women together must recognize their collective and individual need to unite and approach this important workplace issue together, demanding safe and healthful working conditions for all.

The significant point is that exposure to toxic substances in the workplace can harm both men and women, including their respective reproductive capacities. Excluding women and exploiting men cannot be the solution to the growing dangers flowing from technological innovation. Instead, the onus must be placed upon employers to ensure that all workers, men and women alike, can perform their jobs free of harm to their health and the health of their families.

This case also implicates heavily upon a woman’s right to control her body and make her own decisions. Increasingly, women are being challenged to give up their freedom of choice to employers, doctors, courts, governmental entities and others who allege an overriding public or societal interest.

The company in this case disregards the fact that it is a woman’s prerogative to determine if, when and with whom to have a child. In enacting its policy, the company did not consider a woman’s capacity for having children or her intentions of having children, her sexual preference, her use of birth control or her spouse’s infertility. The integrity of women must be safeguarded and maintained lest the horrors of “The Handmaid’s Tale” begin to come true.