Wilson Plan for Fetal Hazard Law Draws Fire : * Workplace: The proposal would allow employers to remove pregnant women from jobs under certain circumstances.

In a move decried by feminists and some legal experts, Gov. Pete Wilson has proposed legislation that would allow employers to remove pregnant women from jobs that pose fetal hazards.

Wilson said that such legislation would protect unborn children from possible birth defects. But opponents said it would lead to discrimination against women, even if they are not pregnant. The proposal also appeared to contradict a recent U.S. Supreme Court ruling on sex discrimination, critics said.

“He is taking women 10 steps backwards,” said Mandy Hawes, an employment law specialist in San Jose.

Wilson offered his proposal Monday as he vetoed a bill that would have amended the state labor code to permit suits against parents’ employers on behalf of children with fetal injuries. The vetoed legislation was intended to supplant a controversial 1989 state Court of Appeal ruling that held employers were not liable for any fetal injury.

In his veto message, Wilson argued that it was better to prevent fetal injuries than to legislate a method of compensation. “No compensation under any system can compare with the avoidance of birth defects and the possibility of lifelong suffering,” he said.

Assemblyman Richard E. Floyd (D-Carson), author of the vetoed legislation, said Wilson’s proposal would provide employers with an excuse to fire pregnant women. “He might as well say, ‘If you’re pregnant, you shouldn’t be working,’ ” Floyd said.

Floyd said Wilson’s proposal didn’t cover women who work in non-hazardous jobs. The legal case that inspired Floyd’s bill involved a 1981 injury to Linda Bell Freytes, a pregnant office worker at Macy’s department store in San Francisco.

When her uterus ruptured on the job, Macy’s nurse failed to quickly call an ambulance. Though the court held that Macy’s was responsible for brain damage suffered by Freytes’ fetus, it also ruled that the baby was not entitled to compensation.

In what Freytes’ lawyers then described as a legal Catch-22, the court held that all workplace injuries were covered by workers’ compensation laws. But since the baby was not a worker, he could collect nothing, the court said.

In his veto message, Wilson addressed the Freytes case, saying, “I agree there should be a remedy for injuries to fetuses in (that) factual situation.” But he said that the remedy should not be “outside the workers’ compensation system.”

California employers have resisted efforts to include fetal injuries under workers’ compensation because they fear that they will receive a deluge of claims for injuries that are unrelated to work.

The powerful California Manufacturers Assn. also opposed the Floyd bill because it feared many expensive lawsuits. However, legal experts have maintained that in most cases, fetal injuries are extremely difficult to prove.

On Thursday, the California Manufacturers’ Assn. had no comment on the governor’s proposal. But a spokesman said: “We believe the workplace is an inherently dangerous place. In a nine-month period there may be innumerable opportunities for injury, no matter how slight. That makes every injury a potential case for litigation.”

Wilson’s proposal would allow employers to “exclude” pregnant women from dangerous jobs if the state labor commissioner agrees that a hazard exists and that it is too expensive for an employer to fix it.

The proposal goes beyond existing state laws. Pregnant women in California now can be removed from hazardous jobs only under very limited circumstances. The state Fair Employment and Housing Act permits temporary transfers to safe jobs if the pregnant woman consents to the change. A pregnant woman may also be placed on medical disability if her doctor believes that her job poses a health threat to the fetus.

Some lawyers said the Wilson proposal would make it harder for women to get jobs. “It will be seen as a public policy message not to hire women, or not to hire pregnant women,” said Doug deVries, vice president of the California Trial Lawyers Assn. “It is bizarre.”

A spokesman for the Department of Industrial Relations said its legal department is now drafting the legislation for the governor.

Wilson’s proposal has significance beyond the debate in California, raising many of the difficult legal and emotional issues that are part of a national debate over an employer’s responsibility to the unborn.

Legal experts said it appeared to be the first attempt by a state government to sidestep the U.S. Supreme Court’s landmark sex discrimination ruling in a case involving Johnson Controls, a Milwaukee battery maker. The high court ruled in March that employers could not bar fertile women from jobs that posed risks to developing fetuses. Workers at Johnson Controls handled lead, a fetal toxin.

Marsha Berzon, the San Francisco attorney who successfully argued the Supreme Court case for the United Auto Workers, said Wilson’s proposal was unconstitutional. “Women cannot be precluded from jobs because of fetal protection concerns,” she said.

In addition, Berzon said she believes that Wilson’s proposal would apply only to companies with less than 15 employees, because they are excluded from complying with federal employment statutes.