Document G5XLLv2aV7xyEJe9m0KXwkbQm

JUL i 7 m Employer's Tort Liability When a Female Employee Is Exposed to Harmful Substances Allan Sloan* The responsibility of an employer to provide a safe environment for em ployees it mandated under OSHA reguietione. The question now arises as to the employers responsibility to provide the same protection to the yet unborn (or not yet conceived) offspring of employees. The tort liability~in this case, stemming from exposing female employees and their future fetuses to harmful substances In the work piace-ir the subject of thti article. The author examine! not only the potential extent of the liability, but also the steps an employer can take to minimise his chances of being found liable A topic of iiKreasingYmSqjItance to employers is that of exposure of women of child-bearing lEge to substances with harmful effects. The employer's tort liabi^ytuay extend not only to the woman, but also to her offspring.VTheee is evidence that certain substances may cause fetal damages natdust through the mother by trans placental transmission, bufewfniy the mother's or father's exposure prior to conception. ^ The evidence to date is H^sefi japon studies of reproductive func tions of women who have been exposed. (These studies generally have not examined the effect^ UjM reproductive functions of simi larly exposed men.) While the sfgndards adopted pursuant to section 6(b) of the Occupational Safe^ano Health Act1 (OSHA) are not sex-specific as to exposure levels but rather are neutral, some em ployers have completely excludfat^mhen of child-bearing age from all fobs in which the exposure t$s-/5ostances known to cause fetal damage is possible. The main thrust of this article contains the extent of employers' tort liability to offspring. It is beilepjdnderstood after a brief re view of the employer's obligation thejjf female employees and other background material. * l.LB. Brooklyn Law School- Mr. Sloan Is with Vedder, Price, Kaufman, Kamttthdz is Day, New York. 506 No. 4 Employers, Females, and Tort Liability sen Danger to Female Employees The prohibitions against discrimination in Title VII of the Civil Rights Act of I9641 (and, by implication. Executive Order 11248*) have generally been interpreted to bar any policy excluding wornen from any job where that policy is designed to "protect" women workers from danger. Weeks v. Southern Bell Telephone Co., 408 F.2d 228 ( 5th Cir. 1969); Bowe t>. Colgate-Palmolive Co., 418 F.2d 711 (7th Cir. 1969). "Moreover, Title VII rejects just this type of romantic pater nalism as unduly Victorian and instead vests individual women with the power to decide whether or not to take on unromantic tasks. Men have always had the right to determine whether the incremental increase in remuneration for strenuous, dangerous, obnoxious, boring or unrtaaasSe tasks is worth the candle. The promise of Title VII is tnaAwjbmeri are now to be on equal footing."* f___ Indeed, even where a state Agratgctive" law prohibits the employ ment of women in certain dangaxpus jobs, an employer violates Title VII if lie excludes woifjed/fscm those jobs on the basis of the state "protective" law. Rosenfidd u. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971). WjQ These cases, however, arguably involved situations where the dangers were not sex-specific, i.e., bjjth men and women were ex posed to similar hazards, albeit4tTdifferent degrees.1 A different result might obtain if, for example,Exposure to a particular sub stance created a significant risk of cancer in female workers but little or no carcinogenic risk to taad^workers. An employer who wished to exclude women from jtdisfXMiere the hazards were sexspecific might argue that atthoiudiljt--fnav be unlawful to treat women differently where the hazardsekis|for both men and women, it would not be unlawful to treat womgn differently where they faced hazards demonstrably uniqu^g/tMem. In such a case, before adopting a policy of excluding women, the employer should first carefully review the relevant medical and scientific literature to determine if there is any substantial risk, al beit noncarcinogenic, in exposure of males. The more troublesome situation is one in which the only recog nized dangers to the workers are sex-specific (e.g., only women BFS 005868 <5 . .... * n * 508 Employee Relations Law Journal Vol. 3 workers run a substantia] risk if exposed). This might be the case with lead, where there is some evidence that the toxic exposure level for women may be significantly lower than for men. Thus, male workers could be safely employed at exposure levels unsafe for women. In such circumstances, an employer would have three options. First, he could reduce the exposure to a level low enough to elim inate the hazard to women. This is the general recommendation of unions and civil rights groups. Second, he could continue to employ women at hazardous exposure levels after carefully and hilly warning them of the risks. (The problem with this second option is that although the female employee voluntarily assumes the risk, thereby freeing the employer qfjipbility, the female em ployee may not bind her unborn chiftF"p}jt release from liability. This is discussed in the section on "DingSr to Offspring.") Third, he could refuse to employ women in ifff'Jbbs in question. Option number one would satisfy aiwgiiestion of compliance with OSHA and Title VII and therefore ought to be given prime consideration. It will not be a realistic wmative, however, if a reduction of exposure to a level safe for wpmgn is not technically feasible or if the cost is prohibitive. \!j 2 Option number two raises serious questions because of employer accountability to OSHA as to the reasons foiyjie hazardous ex posure levels. Tort liability questions also areijraised by this option. However, the risk of tort liability for injury tonfemale workers (but not their offspring) can be reduced, if not entirely eliminated, by a full and adequate warning. But another ttjodSjfim with option number two arises under Title VII if a reductiaryfiiexposure levels is technically feasible. Female workers then m^yJbs^jihle to argue successfully that it is unlawful sex discrimination for^he employer to provide safer working conditions for men than pr women. There fore, if it is technically and economically feasiSjgiRoe reduce the level of exposure to one safe for women workers, option number one appears to he preferable. Similarly, option number three--barring females from certain em ployment-presents grave Title VII problems if the employer can reduce exposure levels to provide a safe work place for women. Where it is not technically feasible or the cost is clearly prohibitive. Title VII may nevertheless require that individual female workers. No, 4 Employers, Females, and Tort Liability 500 rather than the employer, be given the choice of employment In a hazardous job. In conclusion, if it is technically and economically feasible, an employer should reduce all recognized hazards to a level safe for both female and male workers. If such a reduction Is not feasible, the employer should fully inform all workers of the risks involved and allow them to accept or decline employment in the hazardous jobs. BF5 0058? I t \ o <x or. S10 Eururexc Relation! Law Journal VoL 3 Danger to Offspring Offspring can be damaged by exposure of a woman to a haz ardous substance prior to conception, by exposure of the mother after conception, and by direct exposure of the fetus after con ception. Where sufficient medical evidence exists with respect to exposure of female workers to a particular substance, company policy with respect to those workers must be uniform. For example, an em ployer could not exclude women workers from benzene production positions in a petrochemical plant while employing women In cleri cal positions in offices adjacent thereto If the exposure levels of both were similar. Companies at which these may be a substantial risk of exposure of all fertile females to situations dangerous to the fetus (or fu ture fetuses) should examine the relevant medical evidence care fully before deciding on a company policy. Assuming that the employer concludes that there is a risk to the current fetus (or future fetuses) by exposure of the mother, the employer has three options. The first Is for the employer to con sider lowering exposure levels to protect all fertile workers (par ticularly pregnant workers) from exposure levels dangerous to the fetus, if this is technically feasible and not cost prohibitive. The employer's second option Is to continue to employ the fer tile female employ^es^sCjthe potentially dangerous exposure levels after providing tbem^yfth ample notice of the rides to the fetus. As mentioned earlKggjbi! notice may limit the liability toward the mother but notftowajd the fetus (see discussion, infra). Employers third option is to exclude all fertile women (particu larly pregnant worries) from jobs where exposure levels may threat en the fetus.* J- A recent decision fit tit*.Illinois State Court' raises die question of the extent of the eedpleyer's tort liability to a child bom In the future to a female employee exposed to substances having harmful effects. This case ato^flfes the question of whether a female employee may bind fiCT-uubom child with a release born tort lia bility to the employA. Auo, If this case decision Is followed by other courts, will it--since it extends employers' tort liability far beyond current limitsfc3*rejme commonplace for labor arbitrators (and possibly die EEQCy to permit an employer to control the work areas in which Aan of childbearing capability may work? 00 o Q0 No. 4 Employers, Females, and Tort Liability 511 The Rexislow case involved an action in an Illinois State Court for negligence and willful and wanton misconduct The plaintiff alleged, successfully, that when her mother was thirteen yean of age, the defendants; on two occasions, negligently transfused her mother with the wrong blood (Rh-positive and not Rh-negative), discovered their error, but never notified her mother or her mother's family. As a result, there was prenatal damage many yean later to plaintiff's hemolytic process and her life was put in Jeopardy, neces sitating her induced, premature birth. When she was bom, she re quired two immediate complete exchange transfusions of blood, re sulting to permanent damage to, inter alia, her brain and her nervous system. Transfusing the wrong blood was clearly a negligent act, and the defendants were iijuinile for knowing that transfusing the wrong blood can cause srforoetal injury. The negligent act was committed pre-conception, butr<&asinjury attached only at the con ception of the fetus. fJ (This was a tort action anomt a workmen's compensation ac tion, since it was not an emplwwe|nployee relationship but one of hospital-patient. However, evenjtf exposure or injury to a mother is work related, workmen's con^^nyion statutes are not relevant since the plaintiff was not an employee.) The issue factog the court inflensfem was whether a child, bom alive, may have a cause of action^^prenatal Injuries resulting bom another's pre-conception negligent conduct According to the Rena- lout court, the substance of the defendant's contention was that they owed no duty of care to the mtodr~|fliftitlff prior to her conception. However, the court held that the'fjSF'that the negligence occurred prior to conception was no bar ^csKdkitiffs cause of action. The court held that although there are ctnnplex burden-of-proof ques tions in prenatal injury cases, the cjttrstiFconnection is traceable and the injury reasonably foreseeable.'swaifitiff had alleged sufficient facts to enable the court to find a duty owed by the defendant to the plaintiff and a breach of that duty. Following are three possible post-Rendow impact effects on an employer's tort liability to the offspring of its female employees: A. If the decision is reversed by a higher court oar rejected by other courts, no liability, and the employer's obligations and tort liability to these offspring will not be extended appre ciably: 51! Emplovee Relations Law Journal Vol. 3 No. 4 Employers, Females, Liability 513 B. Or, other courts may limit Hensioui to the doctor-hospital- may result in arbitrators and the EES&^erniitting a company more patient context, end not extend it to the employer-employee context (a stricter standard of duty may be imposed on doc tors and hospitals than on employers); C. Courts may extend Renslou: to the industrial context. easily to adopt a policy barring fetd5kSmployees of child-bearing capability from jobs involving expoWe-mat may negatively affect a fetus. Further, even if OSHA has iftt issued a directive embodying such a recommendation, arbitrators'vofcMhe EEOC may permit a If XT occurs and Renslow is held applicable to the industrial company--assuming that reasonable medical authorities have recant- i context, certain questions of legal significance arise and must be answered: oi Proximate-Caiue Criteria .^ Did exposure In fact cause or King about the fetal injury? `But for* the mother's exposure, frotSa. the fetus have been Injured? Foreieeabllity-of-Harm Criteria Would the `reasonable man* foresbetKSt employer's exposing its employees to a particular subtam would cause injury and harm to a fetus conceived at liefer! time? Did employer know or have reasmyto hhnw that the substance to which it was exposing its employer was harmful to a laterconceived fetus? Did employer know or have reas ployee's later-conceived fetus was even if the adult employee was? know that the emufficiently protected Do animal studies indicate danger to a fjtus sufficient to es tablish foreseeability in humans? Slandard-of-Care Criteria Is compliance with an OSHA remilmion-adfficient to establish a standard of care (duty)? f A. 3 Is the standard of care met if an emplpyerxx in compliance with an OSHA regulation, or is the stampsy pf care greater than the regulation? What if there is no OSHA regulation--how is standard of care measured? At what point in time is the employer bound to a standard of care (duty) to the employee and the employee's offspring: pre-OSHA regulation; concurrent with OSHA regulation? The effect of this case on the employer's obligation to the current and future offspring of its female employees may be wide-reaching. If upheld by other courts and applied to the industrial context, it mended such a policy--to deny jobs in certain areas of the plant to female employees of child-bearing capability. However, in order to avoid an EEOC confrontation and avoid a charge of sex discrimi nation, the company's safety rule will have to bar only females of child-bearing capability, but not all females, from those jobs. Lastly, I call your attention to a series of publications discussing BFS 0 0 5 S? 514 Employee Relations Law Journal Vol. 3 the general subject of prenatal injury and the law of torts, the re lationship between OSHA and the law of torts, and the Renslow decision and its possible long-range effect on the extent of the employer's tort responsibility to female employees: ftendow e. MennottUe Hospital: Prenatal Injuries and a PreExistence Duty, 10 John Marshall Journal of Practice and Procedure 417 (1977). Relationship Between OSHA and the Law of Torts, Proceed ings of the ABA National Institute on Occupational Safety and Health Law, ABA's Section of Labor Relations Law, 1970 meeting. Ways the Developing Fetus or Child Can Be Harmed, Work ing far Your Life-A Woman's Guide to jab Health Hazards, Joint Publication of Labor Occupational Health Programs and Public Citizens Health Research Group (chapter 8). The Right of Recovery for Prenatal Injuries, XII Louisiana L. Rev. 383 (1952). The ImpactMedical Knowledge on the Law Relating to Prenatal IriArin, 110 University of Pennsylvania L. Rev. 554 (12>.^P^ Radiation and Treconpeption Injuries: Some Interesting Prob lems in Tort L&w-jSI Southwestern L.J. 414 (1974). Wrongful Birth: Tht Emerging Status of a New Tort, 8 St Mary's LJ. 140 (lttMfy (T> Conclusion The entire area of tort liability bcftveen^htd among employer, female employee, and fetus is one of grrarmiport to many com panies. However, of the many questions raKeckuybis area of tort liability, pre-conception injuries are probably she mrSPulifficult to deal with in the legal context; and they, more an other types of injuries, strain traditional tort law to its limits. However, if the Renslow decision receives widespread acceptance by other courts and is applied in the industrial context, the employer's tort liability will be extended immeasurably, with a probable result that the employer may be able better to control the work areas of its fertile female employees. No. 4 Employers, Females, and Tort Liability 515 NOTES 1. 29 U.S.C. t 056(b). 2. 42 U.S.C. and Supp, v. 2000e et seq., 78 Stat. 253. 3. 3 C.F.R. | 339 (1905), as amended by Executive Order 11375 (1967), 4. Weeks at 230. 5. Both Weeks Involved lilting weight* of over thirty pounds, and Rosettfeld In1 ,vy physical effort. 0. It should an employer i exclusion of fertile female ero- ployees from jobs ha: a fetus can be defended on at least two dlf- ferent theories: A. The exclusion is be an overriding legitimate iiness necessity." But this must purpose such that the practice is necessary to the safe and el __ t operation of the business. How ever, cose law indicates that availabiHtywf the defense is far from clear. The EEOC has repeatedly smZAjKR a business-necessity defense cannot he used to justify an/practice overtly dfetin- guishes between male/female or black/iAdte Ceneral Counsel wrote to the Atomic En from EEOC Ceneral Counsel William Carey 1 raent and Safety Stephen Creenleigh August 29, 1 The EEOC (letter Environ* ____ ig that (he defense would not insulate a policy setting ! radfrata ex- posure levels for pregnant females. d' B. Bona Fide Occupational Qualification. Section 703(fe)^6f Title VII provides that employers may differentiate on the basis of sex where sex is a bona fide occupational qualification. However, this defense is likely to be reserved for jobs--such as wet nurse--where the sex of the employee Is a biological prerequisite for successful performance. 7. Benslow v. Mennonite Hospital, ------- 111 2d ------ , --------- N.E-2d ____ (1977), affg 40 HI. App. 3d 234, 351 N.E.2d 870 (4th DiiL 1976), BFS 0058? /