Document 2RX64Re4x45NNJ85zRD0GqpqR

1 5 Speech for Medical Directors Club of Chicago January 5, 1973 WOMEN IN THE WORKPLACE I Today, two-fifths of the entire work force is remaie II Despite the attempt of some faH^^^-f^land employment discrimination agencyas %J^grMa the physiological dif f erences^i^^w^^Jhifeh and women, in fact, the unique role women paav in the reproductive process has created problems for the working woman, her employer, her fetus and for society as a whole. III. One problem is the management of the pregnant female in the working environment. A. A medical director's initial inquiries with respect to this problem should be: 1. What is the state of the health of pregnant employee 2. What is the nature of her working environment B. Courts have repeatedly struck down broad policies involving mandatory discharge or mandatory leave for pregnant employees where such policies are based on presumptions regarding the pregnant em ployee's ability to perform her job duties. received " Jr 3 1973 ?-. w. BFS 005634 1. For example in the case of Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974), the United States Supreme Court held that a mandatory maternity leave policy which required pregnant teachers to go on unpaid leave five months before the expected childbirth and no^asturn until three months after ch.LldfcirWy)wtis unconstitutional. The Supreme Courts SSeluded that such cutoff dates were unco^fcs^ytrenal because they were arbitrary and created conclusive presumptions regarding an individual's ability to continue or to resume her job duties. C. However, unless a collective bargaining agreement expressly provides otherwise, an employer is not pre cluded from doing the following: 1. An employgryjnay^ require a pregnant employee to report her pregnancy and provide a certifi cate from her doctor as to her fitness to con tinue working. 2. An employer may also have its medical director review the certificate of the employee's per sonal physician. 3. An employer has the right to have the employee examined by a company doctor at its own expense. 4. ' If the company doctor disagrees with the' employee' s personal physician as to the pregnant employee's fitness to continue working, the employer should -2- BFS 0Q5S35 follow its own doctor's advice because the company doctor will have a greater undersranding of the stresses of the particular working environment. a. Arbitration law, that is the principles derived from grievnaannccees broojught pursuant to a particular bargaining agreement wp.itch, htfesf'e* been adjudicated in the^^l^t^ action forum, provides that where a ge-miine conflict in expert medical opinion exists, an employer has the right to rely on any bona fide opinion, even the most conservative, so long as such opinion appears to have been fairly, reasonably and nondiscriminatorily derived b. EEO, i_.e. , equal employment opportunity or employment discrimination, law requires the employer to show that a "business necessity"standard has been satisfied before an employer will be permitted to exclude from employment--either through leave or termination--a pregnant employee. Business necessity is defined as "neces sary for the safe and efficient operation of the business". -3- BFS 00563 Meeting this standard places a greater burden on the employer than the arbitra tion law standard because he must show not only that his doctor's opinion is fairly, reasonably and nsd^^:riminatorily derived b^t^" a^<J),J^that there is no avaiial^^^^.tei'native short of mandator^^aternity leave which will have a lesser discriminatory impact on the pregnant employee. 2) For example, the SECC, the Equal Employ ment Opportunity Commit sicr., has ad dressed itself to two cases involving pregnant X-ray technicians. The EEOC is the federal agency which administers and enforces Title VII of the Civil Rights Act of 1964. Title VII is the 1964 law which prohibits discrimination in employ ment on the basis of race, color, reli gion, sex or national origin. In the first of the two pregnant X-ray techni cian cases, the employer's policy required the employee's resignation as soon as she was aware she was pregnant. In the second case, the employer's policy re quired the employee to go on an unpaid -4- BFS 005SJ7 maternity leave as soon as she was aware she was pregnant. *16442 and *'6443.) (See, CCH EEOC Decs. a Employers sought to jus tidy the poli- 1 damage, and necessary to the unborn b) The EEOC never addressed itself directly to the question of whether or not pro tection of the fetus was sufficient justi fication for the policies because it, instead, struck down the policies on the theory that lesser discriminatory alterna tives were available. In the first case, instead of resignation, a pregnant em ployee should have been permitted a leave. In the second case, instead of leave, transfer opportunities should have been explored. Another, more subtle problem, is the effect of the working environment on the employee's reproductive capability. A. This problem is particularly acute in environments where toxic substances are present. BF5 Q05&3S B. It is a problem which could have its effect either preconception or post-conception, depending if the substance is a mutagen, teratogen or transplacental carcinogen. V. Pre-conception Concerns A. If the substance in the workplace is-^. mutagen, an employer's first inquiry shouMpfc^ &c^es it affect males in the same or in* a^jempurable manner as it . affects femalAs(|^^05 .1. EEOC officials have indicated to me that any employment policy which prohibits or otherwise restricts the employment of women because of the presence of a mutagen in the working environment will be considered in violation of Title VII of the Civil Rights Act of 1964 if it can be shown that the mutagen underlying the policy also affects men not subject to the policy's restric tions . B. Another question the employer should explore if the substance in the workplace is a mutagen, is can the employer sufficiently control the female employee's exposure short of prohibiting her employment entirely? 1. For example, are there minor or practicable work assignment adjustments available which will elimi nate the opportunity for exposure to the mutagen? -6- BFS 0Q5639 2. Are there engineering controls available to pre vent exposure, e.g., improved ventilation, system enclosures, etc.? 3. Will the use of personal protective equipment be sufficient to prevent exposure? For example, if exposure to the mutacen occurs throuch inhalation will the use of rsso ectlve devices =$ re? Or, if expo- in skin abscrbtion will the use ive clothing protect the employees? a. Unfortunately, respirators cannot be worn by a substantial portion of the working population for both psychological and physiological reasons such as 1) Claustrophobia 2) Heart problems 3) Skin irritations 4) Severe headaches b. OSHA's own respirator expert at the vinyl chloride hearings described all respirators as "instruments of torture" c. My personal experience with the vinyl chloride and polyvinyl chloride industry has revealed that employees refuse to wear respirators, jimmy them for greater comfort, or simply cannot wear them. -7 BFS 005640 1) This problem is exacerbated when the substance involved aces net give the exposed employee immediate physical discomfort, such as vinyl chloride which 2) d. Protective clorhing is similarly uncomfortable, hot and bulky. Employees find that protective clothing severely hinders them in performing their job functions. e. Indeed, both respirators and protective clothing can themselves create hazards for the employees by obstructing their ability to see and move. C. Employers are obviously concerned regarding their liability for consequences of a workplace mutagen. *1. Renslow v. Mennonite Hospital, 67 111.2d 348 (August 8, 1977). Illinois Supreme Court held that a child not conceived at the time its mother was negligently transfused with incompatible blood will have a cause of action against, _i.e. , a right to sue, the negligent hospital and doctor for its injuries resulting from their negligent conduct. BFS 005641 a. Mother was 13 years old when, on two occa sions, she was negligently transfused with Rh-positive blood. Mother's Rh-negative blood was incompatible with, and was sensi tized by, the Rh-positive blood. b. At the time, the 13-year old had no knowledge of an adverse react transfusion. c. First discafv later ring pregnancy, 9 years d. Improper transfusion and resulting sensi tization of mother's blood allegedly caused prenatal damage 9 years after transfusions took place. 2. What is the significance of the Renslow decision to employers? Should the Renslow decision be applicable to the employment context (and there is no legal reason why it should not be) a child born damaged as a result of his mother's or even his father's exposure to an occupational mutagen may have a cause of action against the parent's employer or former employer. 3. The applicability of the Renslow decision to the employment context raises serious and complex medical and legal questions. Since -9- BFS 005642 the legal questions are rather esoteric and, obviously, net of primary concern to veu, I will not burden you with a 'discussion of them here. 4. However, one element in a negligence case is foreseeability, i_.e. , whether it was foresee able that a particular act' would result in harm. a. Hera the role of the com -<f v\\meaical director is crucial. If the 3s seal director suspects fas or could have a muoagenic or ctheSnTSexrc erfect, he must warn the company, This is obvious and clearly falls within a doc tor's medical code of ethics. 6. A more subtle problem is whether the medical' director and the company has an obligation in the first instance to determine whether a substance has any toxic effects before they even allow any employee to be exposed to the substance. 7. It is not inconceivable that in the not-toodistant future a court will hold that, in light of the ever-growing evidence of the toxic effects of occupational chemicals, an employer is obligated to determine these effects- before allowing its employees to be t exposed, not just controlling ex*p osure a1 1 f'ter BFS 005643 the toxic offsets come to light. ,3. One large problem with the Penslow decision is that it, in effect, pennies the accrual of lia bility over decades. a. A minor has usually 2 to 3 years after reaching its majority to initiate a law suit. b. of 20, the employer would be accruing lia bility for 30 years! Nature1!", thus t'^-1 i~-- --= tre mendous legal and medical problems for the parties involved such as finding evidence, reconstructing events, remember ing circumstances, preserving medical data . . . VI. Post-conception Concerns A. Particularly involves teratogens and transplacental carcinogens. 3. Problem currently exemplified by the experience of the vinyl choride - polyvinyl chloride industry. In 1974 the Medical Director of 3.F. Goodrich's Louisville PVC plant discovered that over the -11- BFS 005644 years several of the company's ?VC workers had died of a rare form of liver cancer. 2. This was reported to OS HA. and NIOSH in January 1974 and, almost concurrently, laboratory tests began to produce results indicating than VO1, a gas at room temperature and pressure which is piast .ngiosarcoma 3. Hearings w^ra held during 1974 and in that year both an emergency temporary standard and a final standard regulating occupational exposure to VCM were promulgated by OSHA. 4. Among its recommendations to CSHA in March 1974 NIOSH made the following recommendation: "In view of the preliminary results of animal toxicology studies, it is recom mended that no woman who is pregnant or who expects to become pregnant should be employed directly in vinyl chloride monomer operations." The basis for this NIOSH recommendation probably were the early reports from the VCM experiments being conducted by Dr. Cesare Maltoni in Bologna, Italy. Dr. Maltoni's studies were the most ad vanced experimentation on the carcinogenic effects of VCM. His experiments showed that offspring of pregnant rats who were exposed to VCM for only 7 days during their pregnancy developed angiosar -12- BFS 005645 comas; however, the mothers of such offspring revealed no such tumors- From these experiments Dr. Maltcni concluded that VCM is a transplacen tal carcinogen and, also, the fetuses who come into contact with VCM through their mother's ex posure are probably more susceptible to the carcinogenic effects of VCM than are adults. [Maltoni, Cesare and Lefemine, Guiseppe, "Carcinogenicity BioAssays of Vinyl Chloride t^Current Results", 249 ~ ^ New York Acadpivyof\ 195-213 5. Desoi ecommendation of NIOSH and subse quent testimony at the OSHA hearings by Dr. Irving Selikoff to the same effect, OSHA made no reference whatsoever to VCM's transolacental carcinogenic properties, in the final standard. 6. Nevertheless, as a result of the Maltoni data and some German experiments conducted by Dr. Gerhard Volkheimer, several PVC manufacturers concluded that they were obligated to exclude women capable of becoming pregnant from jobs involving direct VCM exposure. 7. Employers concluded that this policy was neces sary because there does not now appear to be available an alternative policy or practice which would have a lesser discriminatory impact on females while still protecting them or their fetuses: BFS 0Q5S4S a. State of technology is such that you cannot control or guarantee against periodic VCM exposure. b. For the reasons discussed earlier, employers can't keep female employees in respirators constantly. c. Can't merely transfer an employee -whan she becomes pregnant because an exposure could occur before the pregnancy.^ even detected, 1) Indeed, the vejsy tiSe0 fetus is most susqbtii?31e" to toxins because :a&i>d^ceii turnover, the relative ick of detoxification mechanisms, and the immature biological barriers in the very young fetus. d. Amoco Oil instituted a policy for its toxic substances division whereby all women had to check in monthly to certify they were menstruating or otherwise had no reason to believe they were pregnant. In one case, an employee went three months before her pregnancy was detected. See, 64 LA 511 (1975). 3. Consequences that have arisen thus far from the decision of one of my clients to prohibit the employment of women of child-bearing ability in -14- BFS 00564? direct VCM exposure jobs have been the follow ing : a. A grievance was filed and went to arbitration. The arbitrator found in the Company's favor on the ground that the exclusionary policy was a reasonable safety rule which tne enpioyer has ins zignc to presentee uncer the terms of the collective bargaining agree ment . b. My client also has an EEOC sex urur.a- tion class action currerStly'^bJfcffleirncT. c. AddrtionallgrT^py^'ih'-11- has had the Office of Federa^Sontract Compliance Programs, the agency responsible for enforcing the non-discrimination restrictions on govern ment contractors, institute a compliance investigation of the company because of this policy. If the OFCC? concludes that the policy is discriminatory, the company could be debarred from all government contracts. d. This client has, as have other employers which have instituted a comparable policy, decided that it would prefer to face an EEO action now rather than a damages action -15- BFS 00564S down uhe road should a child of an employes be born with or develop anciosarccma. 9. Unfortunately, the problems engendered in dealing with this matter have been exacerbated bv federal agencies continually passing the buck on this issue. For example, wi meeting was held in Was at which one ci rT ment agencyOsgr resen tatives met to discuss nine problem of the employment of women in the VCM in dustry . ,a. OSHA representatives stated that the CSHA standard does not cover the problem. b. EEOC representatives claimed that their agency has no capability to evaluate the medical data provided by the company. c. Although Dr. John Finklea of NIOSH stated to those at the meeting that a transpla cental carcinogen is probably not as dangerous in the first trimester as later in the preg nancy, he would not provide the company with a letter that it is safe to employ women in VCM exposure jobs and transfer them when a pregnancy is discovered. To say the least, this meeting accomplished nooning. -16- BFS 005649 VII. Clearly, the problem of the female employee working in an environment which may have potentially deleterious effects upon her reproductive capability is complex and pervasive. At this juncture, the conflicting objectives of different federal agencies as well as the dearth of relevant scientific and medical data have seriously hampered the development of a reasonable and consistent res; snee rcbiem which ftgovernment, indus 'dizxd labor and the medical cam1 munitv can live with. VIII. Until such time as a viable policy can be developed, com pany Medical Directors should keep the following in mind. 'A. A mother cannot waive the right of her fetus or ultimately born child to sue for damages. B. OSHA standards currently do not address themselves to the problem of the susceptible fetus or the susceptible adult for that matter. C. Comparative consequences of a damages lawsuit vs. an EDO action should be carefully considered. , 1. Public relations from a damages lawsuit involving an injured child can be quite devastating for a company. 2. Liability from such a damages lawsuit can be astronomical as compared with an EEO bajftkpav award. -17- BFS 0056-50 D. If a policy is deemed to be medically necessitated, make sure it is well-drawn so as to avoid excluding any more persons than must necessarily be excluded. f.-*1. For example, do not exclude all women or even women "in the child-bearing age". Instead, exclude only women "who are or who can reason ably expect to become pregnant" who are "cacable of b-ec2om^inq *nSr-^Tm.rr r.. Consider the^ccmpap^Ss^Jresbonse to women who are will- ing to be sterilized to obtain or retain a job. 1. At a GM lead plant, a woman became sterilized to retain her job. The media and unions publi cized the incident in a manner which was em barrassing for the company. 2. A client of mine informed a woman applicant that she could not have a certain job and described its policy and explained the reasons underlying it. The woman offered to have tubal ligation. 3. My advice to that client was to: a. develop a policy statement that the company in no way advocates, encourages or endorses such a serious medical and social step; b. that such a step should be seriously discussed with a personal physician as well as with family. -18- BFS 005651 -'IV. Conclusion. Clearly, the problem of dealing with the actually pregnant female in an average workplace is far simpler than dealing wiuh the female of child-bea1"' 1 ' *--r - toxic substances. In the former circumstance base its decision with resoac pregnant employee on tin workplace will make on ner pregnancy. sroac policies wnicn make generalizations about a pregnant employee's health or fitness to e working should be avoided. Instead, each pregnant em- ployee should be evaluated individually to determine her fitness to continue performing her job duties. With regard to the problem of the female of child-bearing ability in a working environment involving toxic substances, the employer should make every effort to determine (1) the effect of the particular occupational toxic substance on the reproductive process and the fetus, (2) whether the substance affects the reproductive capability of its male employees, its female employees or both, and (3) whether exposure to the toxic substance which affects the reproductive process can be controlled or eliminated entirely. Only if the medical and scientific data shows that the mother's exposure could lead to fetal damage and that there is no way to control this exposure should women be excluded from such employment. Thus, for example, no woman of child-bearing ability should be permitted to work in an envorcnnent where she could be exposed to a teratogen or transplacental carcinogen. Clearly, -19- BFS 005652 only a pregnant mother's exposure can be the vehicle for a fetus' exposure to such substances. 3y contrast:, a mutagen may affect either the mother or the father. If the mutagenic effect can be carried by males, a policy which restricts only females will be held to be sexually discriminatory. The dearth of scientific and medical data relating to the mutagenic, teratogenic or transplacental carcinogenic effects of substances currently prevalent in the workolace has created a serious dilemma fcr industrv and the nrfai^Sli, smmunitv. If one suspects a substance is a jwtjaqe>nn,x^y/tteerr;accgen or transplacental carcinogen, but the"^i^J^a^h/ demons crating the effect is sparse, then to act on that suspicion to the detriment of feminine em ployment opportunities will probably result in a variety of legal and administrative challenges. However, not to act on the suspicion -- but instead to wait until the data is sufficient if not conclusive -- may be to wait too long for confirmation. As a professor of pediatrics who acted as an excert witness me m a case involving this problem in the vinyl chloride industry testi fied, she did not want to wait around for 10 to 20 years to see if the two available animal studies were confirmed by the children of female VCM and PVC workers developing angiosarcoma. Nina G. Stillman, Esq. Vedder, Price * Kaufman & Xammholz 115 South LaSalle Street Chicago, Illinois 60603 BFS 005653