Document KJmzVw6Q3yvVL7jJynKk32GLo

V 'oL 65:1086 ye denied or * This amend- Utah to vote f sex. Both ;ivil, political 1 any govern, race, color, mere separa- isibility under tural and civil of this state ill be without on whatsoever :ertained by a i of Wyoming ccount of sex. njoy all civil. Employment Rights of Women in The Toxic Workplace Womt-n fit king high paying industrial jobs are faced with a new ob stacle: employer? assumptions that exposure to toxic substances in the wor<?!ace threatens the reproductive health of women more than that oj men. This Comment, applying the doctrine of Title VII of the 196- Civil Rights Act, contends that outright exclusion of women based or. such assumptions cannot be supported under either the stat utory or judicial exceptions to Title VII. The author suggests meas ures to counteract employment practices that disfavor women, and ar gues that the issue should be viewed as part of a broader concern for overall worker safety and health. Public attention has recently focused1 on the risk and consequences of injur}7 from toxic substances in working environments.2 Much of the discussion has concerned potential injury not only to the worker exposed to toxic substances, but also to the worker's capacity to produce healthy offspring.* One recent response to this concern is a wholesale exclusion of women of childbearing age from certain toxic4 workplaces.5 t. See. eg., Rally and Rites for Asbestos Victims, San Francisco Chronicle, June 30, 1976, at 11. col. 1 (from New York Times); Workers Who Face Cancer Risk, San Francisco Chronicle, April 25, 1977, at 8, col. 1 (from New York Times); Emergency Curb on Benzene Exposure, San Francisco Chronicle, April 30, 1977, at 7, col. 1. 2. Workers risk injury from toxic substances in industrial workplaces, service in dustries, clerical jobs, and other employment areas. ThbrCSfigreftcydll focus on indus trial workplaces, since the problems of sexstas56 discutflfenalidn W most pronounced Many substanetS*%r(fenUlivS&u^^onal -environments--such as benzene, asbestos, vinyl chloride. certlKethr5/atWAarious metals--are considered to be carcinogenic (capable of inducirifor promoting cancer). Many others--such as silica, coal dust, beryllium and, again, asbestos--are causally related to lung diseases and other respira tory problems such as silicosis, black lung, berylliosis, asbestosis, and emphysema. See generally Occupational Carcinogenesis, 271 Annals of the N.Y. Academy of Sciences (1976) [hereinafter cited as Annals); House Comm, on Interstate and Foreign Commerce. 94th Cong., 2d Sess., Legislative History of the Toxic Substances Control Act, at 773 (1976) [hereinafter cited as Legislative History]; The Toxic Substances Control Act: Hearings on H.R. 7229, H.R. 7548, and H.R. 7664 Before the Subcomm. on Consumer Protection and Finance of the House Comm, on Interstate and Foreign Commerce, 94th Cong., 1st Sess. (1975); The Toxic Substances Control Act: Hearings on S. 776 Before the Subcomm. on the Environment of the Senate Comm, on Commerce, 94th Cong., 1st Sess. (1975). 3. See, e.g,, Rise in Birth Defects Laid to lob Hazards, New York Times, March 14, 1976, at 1, col. 4; lob Hazards Termed Threat to the Unborn, Washington Star, June 17, 1976, at 1, col. 1; Occupational Safety and Health Administration, Proposed Standard far Exposure to Lead, 42 Fed. Reg. 808, 809 (1977). 4. The author apologizes for the use of the word "toxic" to modify the word "workplace." The phrase is substituted, in the interest of brevity, for "workplace subject to hazards from toxic substances." 5. Examples of employer practices are discussed at notes 24-27 infra. See also 1113 BFS 00537? 1114 CALIFORNIA LAW REVIEW [Vol. 65:1113 This exclusionary practice is based on an asserted belief, part fact and part speculation, that women workers face greater risks of reproductive injury from toxins in the workplace than do their male counterparts. Such exclusion reveals a growing tension between two social objectives: safety and health for the working force, and equal employ ment opportunity. While employers may attempt to justify the exclu sion of women in the interest of employee health, this solution is extremely costly to the workers who are affected. Moreover, since many jobs that are subject to potential toxic exposure are just open ing to women,7 exclusion of women from those positions retards the recent progress toward equal employment opportunity made through legislation and judicial action. The entry of female workers into skilled, unionized blue-collar jobs may be halted because of presumed differences in health effects from toxic exposure.8 Thus, women are Job Safety: Women's Work? Newsweek, June 28, 1976, at 56; To Hire or Fire: The Case of Women in the Workplace, Tech. Rev., October-November 1976, at 16; Women's Work: Biology vs. Civil Rights, Los Angeles Times, June 27, 1976, 5 V at 1, col, 3. In addition, some job positions potentially threatening to reproductive health, such as garment workers and electronics assemblers, are traditionally held by women. The tex tile and garment industries, where 46% and 81% respectively of the employees are fe male, use a variety of chemicals for dyeing, finishing, rotproofing, mercerizing and bleaching, flame retarding, and making fabric wrinkle-resistant. A. Hricko, Working for Your Life; A Woman's Guide to Job Health Hazards-(Labor Occupational Health Project, U.GjrBKrkaleyOSffSjl [K^lSTfterTEfll ILjiRRKp]. Serious haz ards have been id< pifiea wrniJjrJhiny'^f tnwe chenj|cffi.ll Id.^zz D-14 it D-15, Women also comprise. ier75%W'el8ctronics' workers, and these workers are exposed regularly to solvents and other health-threatening chemicals. Id. at D-30, In workplaces largely dependent on a female work force, however, attempts to ex clude all women, or all fertile women, on the basis of chemical risks have not been re ported. 6. Compare 1973 annual median wage for female sales workers ($4,650) and fe male clerical workers (S6.469), traditional women's occupations, with that of male craft and kindred workers (SI 1,245) and male operatives ($9,503). U.S. Employment Standards Administration, Women's Bureau, Dep't of Labor, Bull. No. 297, Handbook on Women WORKERS 135 (1975) [hereinafter cited as 1975 Handbook]. 7. The Department of Labor's 1975 Handbook on Women Workers states; Perhaps the most dramatic shift that occurred between 1960 and 1970 was the large influx of women into the skilled trades. In 1970 almost half a million women (495,000) were working in the skilled occupations (craft and kindred worker group), up from 277,000 in 1960. The rate of increase (nearly 80%) was twice that for women in all occupations. It was eight times the rate of increase for men in the skilled trades. 1975 Handbook, supra note 6, at 92. As of April, 1974, 45% of all American women were employed, comprising 39% of the work force. Id. at 8-9. 8. The majority of all working women are in their childbearing years. In 1974, the median age of women in the work force was 36 years, with the median declining by five years since a 1960 survey. 1975 Handbook, supra note 6, at 15. Approximately 1,000,000 prenatal infants are believed to be in workplaces each year. V. Hunt. Occu pational Health Problems of Pregnant Women, A Report and Recommendations for the Office of the Secretary, U.S. Dep't of Health, Education it Welfare 114 1977] beginning to de agencies respoi force. This Com toxic substance: ry agencies--pi tration. It will exclusions and t forbidding sex-1 ment will exploi discrimination < solely women fr< The 1 Understand on health genet quite limited.,D (1975) [hereinafter environments contair male workforce migh 9. See, e.g., } E-9754 (Letter of M forcement Project, P credit allegations of t v. General Motors Co 10. The first di who in 1775 reported thousands of coke ovt class of substances ai workers. Wagoner, C val Pott, in Annals, s. Environmental tc pounds were regislerc Council on Environ tive History, supra n lieved to be in industri 13,000 were placed or Stances Control List, plastic or carcinogenic ward an Integrated A[ 1000 are mutagenic. ; 7548. and II.R. 7664 L House Comm, on Inte, Such tabulation barely compounds are introd S'IOSH Policy on Oca BF5 0053FS [VoU 65:1113 part fact and f reproductive counterparts, m two social equal employtify the exclulis solution is Moreover, since are just openns retards the made through workers into e of presumed os, women are -{ire or Fire: The '6, at 16; Women's 5 V at l, col. 3. ve health, such as women. The texemployees are fe.. mercerizing and Rr:cko, Working ator Occupational ko]. Serious hazat D-14 & D-15. orders are exposed 30. er, attempts to ex. have not been re- rs ($4,650) and fei that of male craft U.S. Employment . Bull. No, 297, 5 RtNoaoox). rkers states: 1 1970 was the half a million ft and kindred (nearly 80%) -ies the rate of d, comprising 39% ins years. In 1974, se median declining 15. Approximately r. V. Hunt, Occu- RECOMMENDaTION'S ion & Welfare 114 1977] TOXIC WORKPLACES 1115 beginning to demand review of the problem by the courts and by federal agencies responsible for the health and employment rights of the work force.* This Comment will initially discuss the scope of the problem of toxic substances in the workplace, and describe the inaction of regulato ry agencies--principally the Occupational Safety and Health Adminis tration. It will then analyze the relationship between toxic workplace exclusions and the mandate of Title VII of the Civil Rights Act of 1964 forbidding sex-based discrimination in employment. Finally, the Com ment will explore and evaluate possible employer responses to sex-based discrimination charges that might arise from practices that exclude solely women from toxic workplaces. I The Issue--The Risks Presented to Workers by Toxic Substances Understanding and regulation of the effects of toxic substances on health generally, and on reproductive health in particular, are quite limited.10 For the purposes of this analysis, toxic substances that (1975) [hereinafter cited as Hunt]. Thus, if fertile women are removed from work environments containing substances dangerous to reproductive health, the bulk of the fe male workforce might be affected. 9. See, e.g., Read v. St Joe Minerals Corp., Nos. E-8113PD, E-9654PD and E-9754 (Letter of March 2, 1976, from Harriet E. Hendler, Director, Affirmative En forcement Project, Pa. Human Rights Comm'n, stating that probable cause exists to credit allegations of discrimination and recommending a hearing on the merits); Toomer v. General Motors Corp,, Delco-Remy Div., No. 76-101c (S.D. Ind., filed Feb. 17, 1976). 10. The first discovery of occupational carcinogenesis w-asmade by Percivall Pott, who in 1775 reported sctQjal capcef-^rnong~L^fidon1@YnilIyjswitjtgs. Today, however, thousands of coklgyera wonteftrin nteiUniteaLStates sjeejh itjJust^jrre inhaling the same class of substan^J^jtaxipr dying W-lung rahefi- at a rate 10 times that of other steel workers. Wagoner, Occupational Carcinogenesis: The Two Hundred Years Since Percival Pott, in Annals, supra note 2, at 1, Environmental toxins are tabulated regularly. In 1971, 1,800,000 chemical com pounds were registered by the Chemical Abstracts Service Registry Number System. Council on Environmental Quahty, 1971 Report on Toxic Substances, Legisla tive History, supra note 2, at 766. Twenty-five thousand chemical compounds are be lieved to be in industrial use today, Discussion, Annals, supra note 2, at 470. Of these, 13,000 were placed on the Department of Health, Education and Welfare's Toxic Sub stances Control List, and 1300 of those listed in 1974 have been cited as having neo plastic or carcinogenic properties. Lassiter, Prevention of Occupational Cancer--To ward an Integrated Approach, Annals, supra note 2, at 214. It is also estimated that 1000 are mutagenic. The Toxic Substances Control Act: Hearings on H.R. 7229, HJt. 7348, and H.R. 7664 Before the Subcomm. on Consumer Protection and Finance of the House Comm, on Interstate and Foreign Commerce, 94th Cong., 1st Sess. 159 (1975). Such tabulation barely keeps pace with the increase--approximately 700 new chemical compounds are introduced into industrial use each year. Fairchild, Guidelines for NIOSH Policy on Occupational Carcinogenesis, Annals, supra note 2, at 201. In addi- BFS 005379 1116 CALIFORNIA LAW REVIEW fVoJ. 65:1113 adversely affect the reproductive system may be classified in four groups. Mutagens cause no noticeable injury to the worker's bodily functions, although they change the genetic structure of reproductive cells and may cause injury or death to several future generations.*11 12 Toxins can also be gametotoxic, that is, they can limit the fertility of both sexes by reducing or damaging the sperm and ova themselves.14 *I*n contrast, teratogens act directly upon a fetus.13 Most teratogenic sub stances leave the system after a limited period of time, but at least one substance is cumulative,14 and thereby capable of reproductive harm tion, regulation of exposure is very limited. See note 24 infra. OSHA has begun its first regulatory attempt to consider reproductive harm when setting standards. In setting a lead exposure standard, the agency has solicited and received testimony on lead's re productive health effects in exposed men and women. See note 25 infra, and testimony of Dr. loana Lancrajan, Dr. Vilma Hum, and Andrea Hricko, Hearing on Occupational Exposure to Lead, Occupational Safety and Health Administration, March 17, 1977. 11. A mutagen is a chemical or other agent that can cause a change (mutation) in the genetic material of living cells. Mutations can cause death of individual cells or abnormal cell division, which can result in cancer (unchecked growth and multiplication of cells) or altered functioning of the cells (e.g., sickle cell anemia). If a mutation occurs in the germ cell of a person (either the sperm cell of males or the egg cell of females), the mutation can be passed on to offspring. If the germ cell with the muta tion is fertilized, the resulting fetus may die before birth by spofUanfOpS^abortion, or develop genetic defects such as physical or m^ntaUflbnafmaliHey jt-^arcrrEhgenic muta tions occur in a germ celLj:anoemna(2e'(*te) evekyears anerybilth inHne child who is the product of the celliLilr toe cnuali&v^ejj even without apparent injury, the defect may be passed on to itsjjmsrmgr' Council on Environmental Quality, 1971 Re port on Toxic Substances, Legislative History, supra note 2, at 772; Hricko, supra note 5, at B-5 & B-6. 12. Testimony on Reproductive Effects of Lead Exposure: Scientific Evidence and Policy issues, Hearing on Occupational Exposure to Lead, Occupational Safety Safety and Health Administration, March 17, 1977, at 3-4, 6-7, Appendix at i-vi (state ment of A. Hricko). 13. A teratogen is a chemical or other agent that interferes in some way with the development of the fetus after conception, by entering the mother's bloodstream and reaching the fetus by way of the placenta. Even if the exposed mother is unharmed, the harmful agent may cause abnormal development of the fetus, resulting in miscarriage or birth defects. Thalidomide is an example of a teratogen. Almost all mothers who took the drug between 20 and 35 days after conception gave birth to babies with some type of deformity. Hricko, supra note 5, at B-8 & B-9. Although the term is some times used to refer only to structural birth defects (such as malformed limbs), for the purposes of this article it encompasses all injury resulting from placental transfer of tox ins (for example, mental retardation in the child). Hricko, supra note 5, at B-8 & B-9. The Priority List for Toxic Substances and Physical Agents of the National Insti tute for Occupational Safety and Health (NIOSH) in 1974 comprised 112 items. Of these at least 21 toxic substances have evidence of teratogenicity in animals or humans. Hunt, supra note 8, at 64. See Hricko, supra note 5, at C-10, C-15, C-26 U C-35, for other examples of workplace teratogens. 14. Some toxic substances accumulate in the body after initial exposure and affect the system as quantities increase, causing injuries that would not occur at lower levels. A cumulative teratogen can remain in a woman's system and adversely affect a fetus upon conception, even at levels below that hazardous to the worker herself, and even if the worker is no longer working in the toxic workplace. One study found that, during 1977J long after c. such as loss < Womer ductive healt That assurn; exposure to procreative t wives (such dren,17 Alth and thereby < place hazard: atogenic caus harmful prop gestation, lead r at a rate parallel cause abortion d Absorption and erds, 30 Archive from Environme. DUTRICS 135 (19 15. Testimi and Policy Issues Health Administi Hricko). BFS 0053S0 tVol. 65 n:> lassificd in K>_: ; worker's K'd:'.. : of reprod ire gcnermii r.' lit the fort:! : i themseke- ; 1-. t teratogenic %_> but at lea t or.c eproductive ha:-. OSHA has hr,-.- standards. Ir. v.-; tstimony on !r.'.j i . 5 infra, and "TV-. - firing on tK.- : in, March !' : : a chance a of indisidc -t iwth and raul-.r - . - emial. If a r-.-. - - ia!cs or the e,' rm cell i!h lontancons iS : If cjrcir.oeer - i birth in the . \ 1 parent injun. r.\i. Qvsttts ' at 772: Hen i - ,,,re; Srirr.ti'e f rad, Occnrat*"'4- S.% t tt* '* AppcJ,x -l! : .e-~:av^.=. -A-- - 1977] TOXIC WORKPLACES 1117 long after exposure. Finally, substances can cause sexual dysfunction, such as loss of libido, thereby limiting reproductive capability.1* Women workers might be regarded as more susceptible to repro ductive health risks due to their principal role in the childbearing process. That assumption, however, is difficult to support. Men's workplace exposure to hazardous substances has been linked to not only personal procreative disorders,1* but also to reproductive abnormalities in their wives (such as miscarriage) and to deaths of and defects in their chil dren.*1715A1lt6hough only women are capable of carrying unborn children, and thereby exposing them directly through placental transfer to work place hazards, differentiating between mutagenic, gametotoxic, and ter atogenic causes of injury is difficult where a particular toxin has several harmful properties.18 This difficulty is further aggravated by the general gestation, lead retained in a woman's skeleton was transmitted to the developing fetus at a rate paralleling its skeletal growth. The study also found that high lead levels may cause abortion during the first three months of gestation. Hansmann and Perry, Lead Absorption end Intoxication in Man Unassociated with Occupations or Industrial Haz ards. 30 Archives of Pathology 226 (1940). See also Scanlon, Human Fetal Hazards from Environmental Pollution with Certain Non-Essential Trace Elements, 11 CUN. Pe diatrics 135 (1972) (describing lead as possibly cumulative). 15. Testimony on Reproductive Effects of Lead Exposure: Scientific Evidence and Policy Issues, Hearing on Occupational Exposure to Lead, Occupational Safety and Health Administration, March 17, 1977, at 3-4, 6-7, Appendix at i-vi (statement of A. Hricko). 16. Lancranjan, Popescu, GIvanescu, Klepsch, A Serbanescu, Reproductive Ability of Workmcrr~Qccjfpatipnatfy JErposettnoyLeadsrVI Environ. Health 396 en who worked with asbtstos, lead, beryllium, and various organic solvents have suffered the same consequences of exposure--for example, mesothelioma, a uniformly fatal form of cancer, lead poison ing and its adverse effects, and other malignant diseases--as did the workers themselves, Th;s effect has been linked to mutagenic effects in exposed male workers, transportation of teratogens by males from the workplace to home, and direct environmental exposure of families living near toxic jobsites. See, e g., Anderson, Lilis, Daum, Fischbein, A Sehkoff, Household-Contact Asbestos Neoplastic Risk, Annals, supra note 2, at 311; Ba-er, Lead Poisoning in Children of Lead Workers, 296 N.E.J. of Med. 260 (1977); Fab;a A Thuy, Occupation of father at time of birth of children dying of malignant diseases, 28 Brit. J. Prev. Soc. Med. 98 (1974); Infante, Oncogenic and Mutagenic Risks in Communities with Polyvinyl Chloride Production Facilities, Annals, supra note - 4?; Wagoner, Occupational Carcinogenesis: The Two Hundred Years Since Perdie! Pott, Annals, supra note 2, at 1, 2. Studies summarized in New York Times, Febna`7 3, 1977, at 19, col. 1. 18, Direct observation of chromosomal or cellular effects of toxins is technically d-fficulL Instead, most scientists study clinical manifestations of injury such as de creased fertility, spontaneous abortion and birth defects. See, e.g., Carson, Slowed Learning in Lambs Prenatally Exposed to Lead, 29 Archives of Environmental. Kulth 154-56 (1974) (decreased mental capacity in offspring of lead-exposed pregnant Infante, Oncogenic and Mutagenic Risks in Communities with Polyvinyl Chlo'v-e Production Facilities, Annals, supra note 2, at 49 (increase in congenital malforma- BFS 005SSI 1118 CALIFORNIA LAW REVIEW [Vol. 65:1113 limited state of scientific diagnostic capability.1* Thus, an abnormality could have been the result of either parent's exposure to toxic sub stances. Although it is possible that reproductive health risks to some women may be greater in certain cases, such distinctions are quite inexact, especially for predictive purposes. It follows that rough categorizations of risk to reproductive health are clearest when classified by reproductive capacity, rather than by sex. Men and women without reproductive capacity--due to injury, surgery, or age--will not suffer any tangible injuries. Men and women with current reproductive capacity, who are all potential victims, may be divided into several different groups: (1) Persons having reproductive capacity and an expressed present or future intention not to exercise it, due to abstinence from sexual activity with the opposite sex or a comprehensive practice of birth control; (2) fertile men and women practicing celibacy or birth control at present and with the possibility or desire to conceive children in the future; (3) fertile men and women for whom conception is a current possibility; and (4) pregnant women. Employers' failure to recognize that reproductive health hazards classify along these lines, and to order their employment practices accordingly, are the concerns of this Comment.19 tions in Ohio communities where polyvinyl chloride is mamrfj.ctured'). Where, as in most cases, toxins have several adverse reproductive effects vinyl chloride, which is mutagenic, teratogenic and gametotoxic, Infante^JdJisswdy&n the end result proves nothing about the initial cause. Thus, even if scieoutts. theoretically attribute a specific reproductive injury (e.g,, teratogenesis) ta^omen onpt^racing of a clinical result to that theoretical cause is difficult. Whenvstuaw^xotnpare the incidence of reproductive in jury between exposed men and^wdjman, one might infer disproportionate susceptibility from differences between overwlt-tevcls/of reproductive injury. See, e.g,. Ad Hoc Com mittee on the Effect ofinTrMev^nestherics on Health of Operating Room Personnel, American Society-^^Xr^t^esiologists, Occupational Disease Among Operating Room Personnel, 41 ANesh?S2.ogy 321 (1974) (female workers had twice the normal rate of miscarriage and mrth defects; the wives of male workers bore defective children 1% times more frequently than normal). Given the overall harm of exposure to reproduc tive capacity of either sex, however, it is questionable whether the difference is signifi cant 19. Scientists have great difficulty extrapolating experimental findings with labora tory animals, bacteria, and other agents, to humans. Council on Environmental Quality, 1971 Report on Toxic Substances, in Legislative History, supra note 2, at 772-73; Hoel, Statistical Extrapolation Methods for Estimating Risks from Animal Data, Annals, supra note 2, at 418; Schneiderman, Mantel, & Brown, From Mouse to Man--or How to Get from the Laboratory to Park Avenue and 59th Street, 246 Annals of the N.Y. Academy of Sciences 237 (1975). Even among individuals, factors such as age, sex, health condition and history, met abolic patterns, and stress vary greatly and affect susceptibility to disease. See Bing ham, Niemeier, t Reid, Multiple Factors in Carcinogenesis, Annals, supra note 2, at 14. The latency period between exposure and diagnosis further complicates analysis of risks of occupational exposure. Delays of 20 to 30 years are common. Lassiter, Vinyl Chloride--Best Available Technology, Annals, supra note 2, at 176, 177; Newhill, Methodologies of Risk Assessment, Annals, supra note 2, at 413. 1977] Til Congress working condi i pational Safety parts. OSHA' statutory' provi: The Secreta or harmful ard which n of the best impairment has regular t period of hi; Despite the Hr. the provision Safety conditic cally feasible a a limited defen OSHA, 1 mandate to coi thousand subs! ity, only a frac 20. 29 u.s. (OSHA) expands furnish to each of from recognized 1 harm to his emplo panion legislation language. See, e.i 21. 29U.S.C 22. In Socir nation, J09 F.2d try to the standar cuit ordered indu reducing worker t required low level ible. The Court : He may raise staj require the dcvelc based solely on de 23. The D C be a limited defe (D.C. Cir. 1974) cially burdensome 24. OSHA i chloride, coke ov< BFS 0053S2 oL 65:1113 abnormality toxic sub- sks to some s are quite ictive health than by sex. -try, surgery, women with ms, may be reproductive d exercise it, te sex or a and women possibility or d women for jant women, zards classify accordingly. . Where, as in chloride, which nd result proves tribute a specific :ca\ result to that reproductive in nate susceptibility Ad Hoc CornRoom Personnel, Operating Room i the normal rate ctive children 1% sure to reproducference is signifi- dings with laboraEnvironmental ry, supra note 2, isks from Animal l. From Mouse to treet, 246 Annals i and history, metLisease. See Hing is supra note 2, at plicates analysis of ,n. Lassiter, Vinyl 7G, 177; Newhill, 1977] TOXIC WORKPLACES 1119 n The Government and Employer Response Congress has delegated the responsibility to assure "healthful working conditions"20 for the American work force to the federal Occu pational Safety and Health Administration (OSHA) and its state counter' parts. OSHA's role in regulating toxic substances is set out in a separate statutory provision. The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the stand ard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employe has regular exposure to the hazard dealt with by such standard for the period of his working life.21 Despite the limitation of the "feasible" have interpreted the provision strictly to rgfluhtf ^bstaJ^bUmpIoyer responsibility. Safety conditions may(@ w^uirecPpeyonalevels considered technologi cally feasibkrafttne tm^^fWndard setting,22 Economic infeasibility is a limited OSHA, however, has taken very few steps to implement its mandate to control toxic exposure. Despite the presence of more than a thousand substances in the work environment with some harmful capac ity, only a fraction are effectively regulated.24 OSHA is now beginning 20. 29 U.S.C, 651-678 (1970). The Occupational Safety and Health Act (OSHA) expands this general intent in the General Duty Clause: "Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 U.S.C. 654(a)(1) (1970). State statutes enacted as com panion legislation to the Federal OSHA have generally incorporated similar or identical language. See, e.g.. Cal. Lab. Code 5 144.6 (West Supp. 1977). 21. 29 U.S.C. 5 655(b)(5) (1970) (emphasis added). 22. In Society of Plastics Indus., Inc. v. Occupational Safety and Health Adminis tration, 509 F.2d 1301 (2d Cir. 1975), an industrywide challenge by the plastics indus try to the standard sharply reducing worker exposure to vinyl chloride, the Second Cir cuit ordered industrywide compliance by the plastics industry with a standard sharply reducing worker exposure to vinyl chloride even though at the time of rulemaking the required low levels of exposure were not known to be technologically or financially feas ible. The Court stated that the Secretary of Labor "is not restricted by the status quo. He may raise standards which require improvements in existing technologies or which require the development of new technology, and he is not limited to issuing standards based solely on devices already developed." Id. at 1309. 23. The D.C. Circuit Court of Appeals has ruled that economic infeasibility will be a limited defense. Industrial Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974) (standards may be economically feasible even where they are finan cially burdensome and affect profit margins adversely). 24. OSHA presently has detailed regulations for only 17 toxic substances--vinyl chloride, coke oven emissions, asbestos, and 14 other carcinogenic chemicals such as BFS 005383 1120 CALIFORNIA LA W REVIEW [Vol. 65:1113 to regulate toxic substances,** and the issue of worker exclusion could diminish as the amount of regulation increases.*4 The slowness of its pace and the inherent limitations of the "feasible" clause, however, limit its present role considerably. As a practical matter, employers are free to exercise considerable discretion in controlling such hazards. With out government regulation to protect reproductive health, industry has tended to respond in a single-minded and simplistic manner.*7 Most employers identify persons they feel face the greatest risk from toxic exposure and remove them from the workplace. From the employers' viewpoint, the workers to be excluded are w^ --Wn^i^l^telt^^Ke2_ _ and St. Joe Minerals Corporatre^im-rennsyrWnia Yecentlytransferred all women capable of bearing children out of areas with lead exposure to "less hazardous" jobs with reductions in wages and seniority.*8 benzidine and methyl chloromethyl ether. Hricko, supra note 5, at A-28. The stand ards' exposure levels were not set with protection from reproductive injury in mind, nor do they address the issue of reproductive health at all. Approximately 450 other chemi cals have exposure limits adopted by OSHA, but these regulations do not mandate moni toring of exposure through medical examinations, air monitoring, or other measures. 25. For example, OSHA is presently promulgating standards to regulate exposure of workers to lead, a substance that is suspected to be mutagenic, gametotoxic, and ter atogenic. See 40 Fed. Reg. 45935 (1975); 42 Fed. Reg. 808 (1977). OSHA has sough! public comment on the effect of lead on reproductive health and the disproportionate risks of injury by sex. Id. See also Toxic Substances Control Act, Pub. L. No. 94469, 90 Stat. 2003 (1976) (to be codified in 15 U.S.C. 5 2601). It provides for premarket testing and reduction of exposure to substances believed to present an "unreason able risk of injury." 26. If, on the other hand, the government promulgates sex-based regulations, addi tional conflicts would ensue. For example, if OSHA's forthcoming lead standards re quire differential employment treatment by sex for safety purposes, the government could be subject to allegations (based on the due process and equal protection clauses of the fifth amendment, rather than Title VII) that it is compelling differential treatment of certain classes of workers without a factual justification, and is thereby causing un constitutional discrimination on the basis of sex. See Craig v. Boren, 97 S. Ct. 451 (1976); Hearings of the U-S. Dep't of Labor, Occupational Safety and Health Admin., on the Proposed Standard for Exposure to Lead, March 15, 1977 at 11-14 (comments of the Women's Legal Defense Fund), 27. This is typical of industry responses to other worker health issues. See, e.g.. Society of Plastics Indus., Inc. v. Occupational Safety and Health Administration, 509 F.2d 1301 (2d Cir. 1975). See also Hearings before the Subcomm. on Consumer Pro tection and Finance of the House Comm, on Interstate and Foreign Commerce, 94th Cong., 1st Sess. 389 (1975) (response of Prof. Norton Nelson to written questions of Anita Johnson) (detailing both industry's withholding of information concerning toxic effects of substances and the preventable injuries and deaths caused by lack of informa tion). 28. Hricko, supra note 5, at A-40; see Read v. St. Joe Minerals Corp., Nos. E-8113PD, E-9654PD and E-9754 (Letter of March 2, 1976 from Harriet E. Hendler, Director, Affirmative Enforcement Project, Pa. Human Rights Comm., stating that prob able cause exists to credit allegations of discrimination and recommending a hearing on the merits). 1977J --The Indiana, a b, dren for all plant refuset she underwe, --A wt advised to q the possible receive a trai ment comper --A Nt laid off from hazards if she to her formei longer able tc Thus, a where there : choose betwe parity. An c of workplace have chosen mandate: th basis of sex. Title VII employment o gin.83 The pi 29. Toomer filed Feb. 17, 197t 30. Medical 31. Interview tional Health Prog 32. Id. 33. Civil Ri; Section 703(a) of ' (1) to fail or criminate agai tions, or privi lor] (2) to lii ment in any u ployment oppe because of sue Id. at 703(a), 42 BFS 005384 Vol. 65:1113 elusion could owness of its lowever, limit oyers are free zards. With, industry has mer.2T Most ?k from toxic he employers' . Joe Minerals omen capable ;ss hazardous" A-2S. The standijury in mind, nor 450 other chemitot mandate moniner measures, regulate exposure netotoxic, and terOSHA has sought re disproportionate , Pub. L. No. 94t provides for pre sent an "unreason- <3 regulations, addilead standards re ts, the government 1 protection clauses fferential treatment .hereby causing uniren, 97 S. Ct. 451 znd Health Admin, it 11-14 (commenls th issues. See, e.g.. Administration, 509 , on Consumer Progn Commerce, 94th written questions of on concerning toxic by lack of informa- linerals Corp., Nos. Harriet H. Hendler, m., stating that probrending a hearing on 1977] TOXIC WORKPLACES 1121 --The Delco-Remy Division of General Motors Corporation in Indiana, a battery plant, rejects female applicants capable of bearing chil dren for all jobs with lead exposure,2* When another General Motors plant refused to hire a Toronto, Canada, woman for the same reason, she underwent a hysterectomy to qualify.2309 --A woman working with formaldehyde at a fiberboard plant was advised to quit working in the second month of her pregnancy due to the possible danger to the fetus. The company fought her efforts to receive a transfer or disability benefits, and she received only unemploy ment compensation during the remainder of her pregnancy.31 --A New England plastics factoryrefcS0dS& reinstate a worker laid off from its vinyl chloride oneratiomJ^Tme dwnpany cited possible hazards if she became jjei^nt.anH .informed her that she could return to her formetjcfirSli^fc^ph physician's note stating that she was no longer ablete&eai^iRlren.32 Thus, <r fertile woman employed in or seeking an industrial job where there is exposure to potentially dangerous toxins may have to choose between unemployment and a possible loss of childbearing ca pacity. An employer may not violate either federal or state regulation of workplace hazards by forcing this choice. The solution employers have chosen, however, directly conflicts with another federal mandate: the prohibition of discrimination in employment on the basis of sex. in The Relationship of Title VII Title VII of the Civil Rights Act of 1964 outlaws discrimination in employment on the basis of race, sex, color, religion, or national ori gin.33 The prohibition against sex-based discrimination requires era- 29. Toomer v. General Motors Corp., Delco-Remy Div., No. 76-101c (S.D. Ind. filed Feb. 17, 1976). 30. Medical World News, June 14, 1976, at 57-62. 31. Interview with Andrea Hricko, M.P.H., Health Coordinator, Labor Occupa tional Health Program, Univ. of California, in Berkeley, California (April 12, 1977). 32. Id. 33. Civil Rights Act of 1964, 55 701-718, 42 U.S.C. 5 2000e (Supp. V, 1975). Section 703(a) of Title VII makes it unlawful for an employer: (1) to fail or refuse to hire or to discharge any individual, or otherwise to dis criminate against any individual with respect to his compensation, terms, condi tions, or privileges of employment, because of such individual's . . . sex . . . [or] (2) to limit, segregate, or classify employees or applicants for employ ment in any way which would deprive or tend to deprive any individual of em ployment opportunities or otherwise adversely affect his status as an employee, because of such individual's ... sex ... . Id. at S 703(a), 42 U.S.C. 5 2000e-2(a)(l). BFS 0053S5 1122 CALIFORNIA LAW REVIEW [Vol. 65:1113 ployers to treat employees in a sex-blind fashion. Employers may not generalize characteristics that may be commonly associated with one sex or the other, but are not attributable to all members of that sex.34 Overgeneralization of characteristics that are not necessarily related to sex (strength, for example) has been held unlawful when used to limit otherwise qualified women from full and equal participation in employ ment.35 36 -r-<v (Cl The relevance of Title VII to Ae-tfeaSBeol' 'teamen exposed to toxic hazards at the workpktc^erive^fi^mirhe sex-based, generalized nature of employes rppm|e& tg^the problem. Employers seem to ex clude women frcm^tnVtoxic jobsite on the assumption that they all will become pregnant! and thereby face a greater risk of injury than men who are not excluded. While exclusion of pregnant women might sometimes be justified because of the increased danger of teratogenic injur}-,30 the exclusion of all women, or fertile women, is based on an inaccurate assumption of universally disproportionate risk. This as sumption may not be applicable to all members of the excluded group,37 and may be applicable to men who are not excluded.38 If a woman is excluded where men facing the same or similar risks of injury are not, the employer is discriminating against the woman solely on the basis of her sex. IV Employer Responses to Charges of Sex-Based Discrimination In response to an allegation that exclusion of women violates Title VII, an employer might argue that the exclusion is not sex-based, but is instead based on sex-neutral classifications. If differential treatment is found to be based on factors other than the sex of the employee, the plaintiff has failed to make a prima facie showing of sex discrimination. 34. Common examples of such generalizations that have been struck down as dis criminatory are: Weight-lifting requirements, Rosenfeld v. Southern Pac. Co., 444 F.2d 1219 (9th Cir. 1971), limitations on working hours, see, e.g., Kober v. Westinghouse Elec. Corp., 325 F. Supp. 467 (W.D. Pa. 1971), and absolute job prohibitions (e.g., bar tending), see, e.g., Krause v. Sacramento Inn, 479 F.2d 988 (9th Cir. 1973). 3J. See, e.g., Rosenfeld v. Southern Pac. Co., 444 F.2d 1219 (9th Cir. 1971). For a more thorough analysis of the application of Title VII to sex-based discrimination, see K. Davidson, R. Ginsburc & H. Kay, Sex-Baseo Discrimination: Text, Cases and Materials 637 (1974). 36. Although if this were the justification, men with pregnant wives might also face higher risks warranting exclusion. See note 17 supra. 37. Except, perhaps, in the case of a cumulative teratogen. See note 14 supra. 38. See text accompanying notes 11-19 supra. 1977] and Title successful!; the defend The a place is not to the repro risk of tera pregnant or force stems than from s in view of it; pregnant. / employer to tial treatmen view of preg this approacl In both VII case, Ci distinguished nation based clause of the ing pregnane; tv insurance related dis-bi distinction w; "physical cone Toe lack o such in: zer sory ac-iys groups--pre croup is tx S*KS.^* The Court -pp k Wiisr; 2 --=>2 izt **' "r * -* Vi *I ^ --m BF5 005386 ol. 65:1113 ;rs may not .d with one f that sex.8* Ly related to lsed to limit n in employ- n exposed to , generalized seem to ex: they all will try than men vomen might )f teratogenic based on an sk. This as* ,uded group,31 If a woman is 'njury are not, an the basis of :n violates Title ex-based, but is :ial treatment is e employee, the l discrimination. struck down as dis* Pac. Co., 444 F.2d 3cr v. Westinghouse ohibiiions fe.g., bar1973). 9th Cir. 1971). For ;d discrimination, see :: Text, Cases and ant wives might oho ;e note 14 supra. 1977] TOXIC WORKPLACES 1123 and Title VII is inapplicable. On the other hand, if the plaintiff successfully makes a prima facie showing, the burden of proof shifts to the defendant to show adequate justification for the discrimination.8 A. Denying that the Discrimination is Sex-Based The argument that the exclusion of women from the toxic work place is not sex-based will likely focus on thfi-flctfejtially different risks to the reproductive systems^f nwnTnd (gtjfc might say that the risk of terat^eifi5\i^ry^iqu^yothiftWns those workers who are pregnant ar^nS^lcdme pregnant, and their exclusion from the work force stems from actual differences in susceptibility to disease rather than from sex-based classifications. This argument seems transparent in view of its focus on women from the outset--only women can become pregnant. Arguably, the burden should shift at this point to require an employer to provide an affirmative defense for such sex-based differen tial treatment. Recent developments, however, in the Supreme Court's view of pregnancy in employment discrimination cases lend support to this approach. In both an equal protection case, Geduldig v. Aiello,3409and a Title VII case, Gilbert v. General Electric Co.,41 4t2he Supreme Court has distinguished between discrimination based on pregnancy and discrimi nation based on sex. In Aiello, women alleged that the equal protection clause of the fourteenth amendment prohibited California from exclud ing pregnancy-related disabilities from the coverage of the state disabili ty' insurance system. The Court ruled that the exclusion of pregnancyrelated disabilities did not constitute sex discrimination because the distinction was not based strictly on gender, but rather on a unique "physical condition": The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cur sory analysis. The program divides potential recipients into two groups--pregnant women and non-pregnant persons. While the first group is exclusively female, the second includes members of both sexes.43 The Court applied Aiello's reasoning again in Gilbert, finding sex-based 39. Where a prima facie claim of sex discrimination is established, an employer has the burden of justifying the practice through affirmative showings of a "bona fide occupational qualification" or "business necessity." See text accompanying notes 60-122 infra. 40. 417 U.S. 484 (1974). 41. 97 5.0.401(1976). 42. 417 U.S. 484, 496-97 & n.20 (1976). BFS 005JB 1124 CALIFORNIA LAW REVIEW [Vol. 65:1113 discrimination absent because, outside the 'unique" case of pregnancy,4S men and women are treated "alike."444345 46 47 The Gilbert and Aiello doctrine might immunize an employment practice that treats women differently, due to the disabling condition brought about by their unique reproductive systems, from further scruti ny under Title VII. There are, however, two obstacles to applying this approach to toxic workplace exclusion cases. First, in many toxic workplace exclusion cases, employers are not treating men and women "alike" because only women are excluded for protection from reproductive health risks that both sexes share. It is well established that toxic substances pose substantial reproductive health risks to fertile men.45 Given the limitations of scientific knowl edge and the tenuous causal links between exposure to a given toxin and ultimate injury,4* employers may be unable to substap^e claims that their women employees face a greater risk of'afSbnJi^c^jSi injury than their male workers. If the objective dffexclusii^Ji ffie minimization of health risks, cla$sification-^3n(2b naais orprSgnancy may be underinclu- ,4Tsive. That weakneE^mneui^^t^be acceptable under Gilbert but the classification also sg^ffsrrfrom overinclusiveness since many women in the excluded class delay or plan to avoid childbearing, and thus face no additional risk at all. By excluding these women, while employing susceptible males in their place, the employer eliminates any legitimate ? rationale for a classification on the basis of pregnancy. This leaves only the conclusion that employers are discriminating on the basis of sex. In another sense, the excluded class of women hardly receives equal treatment. Unlike the Gilbert situation, where women workers unable to qualify for pregnancy benefits at least receive other benefits on the same basis as fellow male workers, the exclusion of fertile women 43. Normal pregnancy is an objectively identifiable physical condition with unique characteristics. . . . Pregnancy is of course confined to women, but it is in other ways significantly different from the typical covered disease or disability. Gilbert v. General Elec. Co., 97 S. Ct. 401, 407-08 (1976). 44. The Court stated: There is no evidence in the record that the selection of the risks insured by the program worked to discriminate against any definable group or class. . . . There is no risk from which men are protected and women are not. Likewise there is no risk from which women are protected and men are not. Id. at 408. 45. See notes 11-19 supra. 46. See notes 18-19 supra. 47. General Electric's disability insurance scheme was recognized as "underin- clusive" by the Court. Gilbert v. General Elec. Co., 97 S. Ct. 401, 409 (1976). Note, however, that in the toxic workplace case, there is no discrete group that shares a "unique" characteristic like pregnant women in Gilbert. Similar reproductive risks may extend to both sexes when toxic exposure occurs. 1977] from the worl otherwise "neu equal footing v regarded by the Second, tl reasonable limi Although the C of the employe costs of alternr. the Court a sei may indicate d women, it is ai Gilbert is made; workplace excl women workers Whereas tl nancy, any w "status""--face toxic workplace only "pregnane} disabilities, and 48. See note f 49. See Hunt of employment duri of a pregnancy free ternalistic safety co the burden of proof less for many wome being and chiidbeari fact to sanction diffi 50. 97 S. Ct. ployer's rationale foi Affirmative defenses note 39 supra. 51. 97 S, Ct. 4 52. Chiidbeari Physical characterist practice, are to be There are only two dition necessitating . work environment s quacy of pregnancy tales the assumption son, R, Ginsburq & 638-40 (1974). 53. Gilbert v. Court's analysis igne related disabilities su: BFS 0053S& [Vol. 65 till.* J of pregniz- i employmir.; ling condition further scrud3 applying this ployers are act re excluded for es share. It is il reproductive cientific kne-wlgiven toxin and iate claims that tive injury than minimization of y be undenr.clujilber:,*' but the many women h and thus face r.o jvhile employing es any legitimate This leaves only the basis of sex. . hardly receive? women worker? other benefits or, of fertile women it condition w;:h is in other lility- insured hv class. . .. Like'-*;*: cognized as " 31, 409 (1976i ^ >- : e group that 1 ** reproductive risk* n>* 1977] TOXIC WORKPLACES 1125 from the workplace leaves few women behind to benefit from the otherwise "neutral" treatment.4 Title VII's goal--putting women on equal footing with men in employment opportunity--is completely dis regarded by the practice.4* Second, the holdings of Gilbert and Aiello are stretched beyond reasonable limits when used to prevent a shifting of the burden of proof. Although the Court's findings in Gilbert obviated the need for scrutiny of the employer's rationale for discriminatory treatment,50 the relative costs of alternative practices werey-briedHS) Shewed beforehand, giving the Court a sense^ofc^rtie(^uiti8San thagfj&w-* *^ven where evidence may induSS) tuffemgC^syip? theadverse impact of toxins on men and women, itiis^&rgOable that simple one-tier review of the type used in Gilbert is inadequate to assess the complicated situations present in toxic workplace exclusion cases, much less the equity of excluding only women workers. Whereas the focus in Gilbert was on the "voluntariness" of preg nancy, any woman with child-bearing capacity--an involuntary "status"2--faces an irrebutable presumption of disproportionate risk in toxic workplace exclusion cases. Furthermore, unlike Gilbert, where only "pregnancy per se" was at issue,1 reproductive injuries are clearly disabilities, and the employer in a toxic industry is at least partly 48. See note 8 supra. 49. See Hunt, supra note 8, at 2*13. where she describes several common hazards of employment during pregnancy. Despite this, many women cannot afford the luxury of a pregnancy free from strain. If employers are allowed to begin to impose their pa ternalistic safety concerns on fertile or pregnant women--particularly without bearing the burden of proof--the doctrine of equal employment opportunity could be meaning less for many women workers who would be forced to choose between economic well being and childbearing. Given the obviousness of women's childbearing role, use of that fact to sanction differential employment treatment seems to ignore Congressional intent. 50. 97 S. Ct. 401, 408 (1976). Title VII does not provide for review of an em ployer's rationale for differential treatment of a protected group at the prima facie stage. Affirmative defenses are evaluated only after findings of discrimination are made. See note 39 supra. 51. 97S, Ct. 401, 407-12 (1976). 52. Childbearing potential is more a status than a physical, tangible reality. Physical characteristics, which may legitimately support an exclusionary employment practice, are to be distinguished from status, which does not provide such support. There are only two instances when childbearing "status" may become a physical con dition necessitating disproportionate protection: When a cumulative teratogen in the work environment significantly increases the likelihood of injury, or when the inade quacy of pregnancy testing or unreliability of individual "pregnancy planning" necessi tates the assumption that fertile women may be pregnant at any time. See K. David son, R. Ginsburg & H. Kay, Sex-Based Discrimination: Text, Cases and Materials 638-40 (1974). 53. Gilbert v. General Elec. Co., 97 S. Ct. 401, 408 (1976). But note that the Court's analysis ignored the fact that General Electric's plan excludes non-pregnancyrelated disabilities suffered during pregnancy. Id. at 416 (Brennan, I., dissenting). bfs 005389 4M 1126 CALIFORNIA LAW REVIEW [Vol. 65:1113 responsible for the disability. Were it not for the employer's failure to eliminate hazardous substances, the injury would not ensue regardless of the employee's reproductive status. Requiring workers to bear the entire burden of persuasion or else suffer differential treatment disre gards the joint responsibility of employer and employee in the circum stance. The necessity of exploring an employer's affirmative justifications for exclusion appears particularly compelling when one compares the # application of Title VII doctrine in cases where a completely '`neutral" employer practice has disparate adverse effects.51 In-4r{Qgs v. Duke Power Co.,5554the Supreme Court required- the eSSbyirtAtc^^monstrate an essential business purpose for- j^ctic8tthaot eftterea a disproportion ate impact on raciakp^pmitms^i^^gr' premise, that historic patterns of employment discrmBoirtien make disparate treatment inherently sus pect,56 similarly applies to the toxic workplace exclusion case.57 Most 54. One might attempt to characterize the exclusion of fertile women as differen tiation among workers on the basis of their relative "susceptibility to injury" or "resist ance to reproductive damage," and thereby establish a "neutral" classification. The class excluded, however, is that of fertile women. Regardless of the "neutrality" of the ration ale, this is not a "neutral" classification in the traditional sense. See, e.g.. Meadows v. Ford Motor Co., 9 FEP Cases 180 (6th Cir. 1975); Rose v. Bridgeport Brass Co,, 487 F.2d 804 (7th Cir. 1973); Sprogis v. United Air Lines. Inc., 444 F.2d 1194 (7th Cir.), cert, denied, 404 U.S. 991 (1971). 55. 401 U.S. 424 (1971). In Griggs, black employees of a generating plant chal lenged the employer's requirement of a high school diploma or passage of a standardized intelligence test as a condition of employment. The Court found that where job require ments have a disparate impact on a protected class, such requirements are prima facie violations of Title VII, and must be justified by an affirmative defense of business neces sity. The Court stated, "The Act proscribes not only overt discrimination but also prac tices that are fair in form, but discriminatory in operation." Id. at 431. 56. In Griggs the Court stated: The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportuni ties and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, pro cedures, or tests neutral on their face, and even neutral in terms of intent, can not be maintained if they operate to "freeze" the status quo of prior discrim inatory employment practices. 401 U.S. 424, 429-30 (1971). The Seventh Circuit gave a similar rationale in a sex discrimination case. Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 198 (7th Cir.) cert, denied, 404 U.S. 991 (1971). 57. It should be noted that recent cases may have undermined the Griggs doctrine. In Washington v. Davis, 96 S. Ct. 2040 (1976), the Court was disinclined to rely on evidence of disparate effect to find racial discrimination. Although the case was decided on the basis of the fifth amendment due process clause, rather than Title VII, Justice Brennan's dissent describes the decision as inhibiting future application of Title VII where only discriminatory effect, not intent, can be proved. Id. at 2057. Further, in Gilbert v. General Electric Co., 97 S. Ct. 401 (1976), the majority opinion inferred that discriminatory effect, without an identifiable discriminatory motive, may be insuf- 1977] industrial wc and paterna dangers of t women in or so that past alleviated an might be neu Assumi: of sex discri: fenses upon v 1. Bona Fie. Title VI discriminatioi crimination i unlawful emp ... is a bor. the normal oj Analyzir. qualification" ficient to prove ployers might poi criminatory inten Still, the ma This may indicate 58. See gen 59. The fir provides a clear ; ployer sought to of assumed confli lion to be "sex-pli tual support for si 60. Civil Ri 61. One pre permits sex to be women, not in fix U.S.C. 2000e-2( F.2d 961 (9th Cir Co., 513 F.2d 102 Power, 553 F.2d bona fide occupat ployee differently of alleged discrimi volve around the t change for transfe BFS 005390 ;..v 05:1113 failure to ?.; rvtiardless of .'s bear the z'.vtr.'.v'ru disre; r. :he circum- -unifications z; compares the rarely "neutral" C--v, Duke :demonstrate : z zisproportion: zinoric patterns z: inherently sus- - :r.;n as differcn.. or "resist 'nic _;i" of the ration s'v! i-.).'-- MradO"5 Brass CoJlViM 119-1 (1th ;;-;:a'.inC plant chalo; a standardized :i`; where job requirei-er'-s are prima frteie -ii of business ncces;ia:ioa but also prae- is plain from the --;nt o: in identifiable practices, pro-j of intent, can0f prior discrim- TOXIC WORKPLACES 1127 industrial workplaces in question have long practiced sex- discrimination, and paternalistic notions of women's disproportionate susceptibility to dangers of all sorts are still prevalent.94 Discrimination that excludes women in order to "protect" their health should be carefully scrutinized so that past discrimination against women in such occupations can be alleviated and historic assumptions of physical and vocational inferiority might be neutralized.9* B. Affirmative Defenses^ Assuming that the plaintiftjrr^es'OLfflaef^rima facie showing of sex discriminalion^Tit^yil^DqprmB-provides two affirmative de fenses upoi^^i^^e^feadrant ifaay rely. Bona Fide Occupational Qualification Title VII offers one statutory defense to its general prohibition of discrimination on the basis of sex. Section 703(e) provides that dis crimination in hiring and employment on the basis of sex is not an unlawful employment practice "in those certain instances where . . . sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . . . ."80 Analyzing the toxic workplace problem under the "occupational qualification" exception presents difficulties.*1 An occupational quali- ficient to prove a Title VII violation. Id. at 409. In the toxic workplace case, em ployers might point to their concern for employee health and safety to show their nondiscriminatory intent, and thereby escape Title VII scrutiny altogether. Still, the majority in Davis and a concurrence in Gilbert make reference to Griggs. This may indicate a continued reliance on the basic Griggs doctrine. 58. See generally cases cited note 34 supra. 59. The first Supreme Court review of Title VU's sex discrimination component provides a clear analogy. In Phillips v. Martin-Marietta, 400 U.S. 542 (1971), an em ployer sought to justify exclusion of all women with preschool children on the basis of assumed conflicts between work and motherhood. The Court declared the classifica tion to be "sex-plus" discrimination and remanded, directing the employer to provide fac tual support for such a universal conflict or abandon the practice. 60. Civil Rights Act of 1964, S 703(e), 42 U.S.C. 2000e-2(e) (Supp. V, 1975). 61. One problem with applying the statutory test in these cases is that the statute permits sex to be an occupational qualification only in the "hiring and employment" of women, not in fixing "compensation, terms, conditions or privileges of employment," 42 U.S.C. S 2000e-2(e)(l) (1970). See, e.g., Hutchison v. Lake Oswego School Dist., 519 F.2d 961 (9th Cir. 1975); Communication Workers of America v, American Tel. & Tel. Co., 513 F.2d 1024 (2d Cir. 1975); Manhart v. City of Los Angeles, Dep't of Water & Power, 553 F.2d 581 (9th Cir. 1976). An employer would not be able to use the bona fide occupational qualification exception to treat a previously hired female em ployee differently when fixing compensation, seniority or other benefits. Many issues of alleged discrimination in toxic workplaces, outside the basic question of exclusion, re volve around the terms and conditions of employment--for instance, reduced pay in ex change for transfers to less hazardous jobsites, elimination of seniority, or loss of other iriiiimturinr*- 1 ' BFS 005391 1128 CALIFORNIA LAW REVIEW [Vol. 65:1113 fication generally requires employees to possess some physical quality necessary for satisfactory performance of the job.1 In the case of unsafe jobsites, however, the relevant qualification relates not to an employee's ability to perform, but to an employee's ability to withstand hazards in the work environment. The closest way of describing this as an occupational qualification is to label fertile or pregnant women as somehow "defective" because of their alleged inability to tolerate high levels of toxicity. ^ Some courts have looked to safety issues to occupational qualifications. Those cases, however, ha^i^volverim^exclusion of an employee with physical attribut^th^jEfendahgec thehealth and safety of consumers or fellovvjwprlfei^v"^(hearts have not yet considered a concern for a workeS^^soi/safety to be a bona fide occupational qualification under Titre VII where the safety of other persons was not at stake.4 A widely accepted judicial interpretation of the occupational quali fication clause has been articulated by the Fifth Circuit Court of Ap peals: fljn order to rely on the bona fide occupational qualification excep tion an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or sub stantially all women would be unable to perform safely or efficiently the duties of the job involved.3 * 62 63 64 65 accrued benefits during forced absence from toxic workplaces during pregnancy. See text accompanying notes 77-83, 100-22 infra. When an employer's actions relate to these conditions of employment, defenses are limited to the judicially-created business necessity exception. 62. In Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1199 (7th Cir.), cert, denied, 404 U.S, 991 (1971), the court of appeals looked to "inherent qualities] reason ably necessary to satisfactory performance." The Fifth Circuit Court of Appeals, in Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 388 (Jth Cir.), cert, denied, 404 U.S. 950 (1971), proscribed discrimination unless "the essence of the business oper ation would be undermined by not hiring members of one sex exclusively." See also Rosenfeld v. Southern Pac. Co., 444 F.2d 1219, 1224 (9th Cir. 1971) (requiring sexual characteristics to be "crucial to the successful performance of the job"). 63. In Condit v. United Air Lines, [1976] 12 Empl. Prac. Guide (CCH) Empl. Pxac. Dec. 1i 5496, the court approved mandatory leave for pregnant stewardesses based on evidence that due to impaired mobility and a greater likelihood of incapacitating ill ness (such as nausea) pregnant stewardesses were less able to care adequately for pas sengers during emergencies. 64. See, e.g., Warshafsky v. Journal Co., 7 FEP Cases 189, rev'd, 63 Wis. 2d 130, 216 N.W.2d 197 (1974). The trial court held that the disproportionate threat of assault to a female paper carrier is not a bona fide occupational qualification. It stated, "[a] female carrier able to adequately perform her job is not made less able to do so simply because she may be subject to a greater risk of attack." Id. at 191. The case was reversed on other grounds. 65. Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 235 (5th Cir. 1969) (emphasis added). See also EEOC guidelines requiring that the clause be given narrow BF5 1977] Thus, to excl to the workp violation, an factual basis workplace ha ed from a to fact face grea As prevj prove disproj ment would p pregnant won portionate risf unique risks f; by men, and ' face no risks the exclusion major hurdles 2. The Bush The judi developed sub bona fide occ occupational < exception in r; tive defense is tion exception The basil overriding legi to the safe and application, 29 C.l F.2d 711, 716 (19 Cir.), cert, denied, 66. Courts h linked to each wo Cir. 1971) (refus closely correlated member) with We (discrimination wc women possess). 67. See text 68. Today about the likelihoo or whose life plan supra note 8, at 1 39 years old expect 69. Kobinsor U.S. 1006 (1971). S.IHEWWHAW! PM.- 005392 3l. 65:1113 ical quality :he case of , not to an o withstand ibing this as t women as :olerate high occupational elusion of an and safety of considered a occupational rsons was not sational qualiCourt of Ap- Ltion excepreasonable it all or subir efficiently g pregnancy. See s actions relate to lly-created business >9 (7th Cir.), ccri. it qualities] reasonaurt of Appeals, in , Cir.), cert, denied, jf the business oper;lusively." See also 1) (requiring sexual ''> iutDE (CCH) Empl. it stewardesses based of incapacitating ill* adequately for pas s'd, 63 Wis- 2d 130. >nate threat of assault ation. It stated, "lal . able to do so simply r 191. The case was 235 (Jth Cir 1969) :lause be given narrow 1977J TOXIC WORKPLACES 1129 Thus, to exclude women workers because of their peculiar susceptibility to the workplace's toxic risks and, at the same time, avoid a Title VII violation, an employer must show two things: First, that there is a factual basis for assuming that women workers face greater risks from workplace hazards; second, that "all or substantially all" women exclud ed from a toxic workplace because of alleged disproportionate risk in fact face greater risks than non-excluded male workers.6 As previously mentioned, the employer would find it difficult to prove disproportionate risk.7 The ``all or substantially all" require ment would present additional difficulties^Jfvtsnployers excluded only pregnant women, the fact ofpregnanp^, j^fc^fj^^ibstantiate their dispro portionate risk, BuSj `Jd4 or^mstantJ^Jwl" fertile women do not face unique risks ffoftt feeatSpnesis? many face risks similar to those faced by menJraMVoro^rwno have decided not to bear any future children face no risks from teratogens.8 Thus, an employer seeking to justify the exclusion of fertile women because of teratogenic risk will face major hurdles in making the factual case. 2. The Business Necessity Exception The judicially created business necessity exception to Title VTI developed subsequent to enactment and judicial interpretation of the bona fide occupational qualification clause. Since race cannot be an occupational qualification, courts first applied the business necessity exception in race discrimination cases. As in those cases, this affirma tive defense is a better tool of analysis than the occupational qualifica tion exception in toxic workplace exclusion situations. The basic test of business necessity is "whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business."9 In order to meet66 67 68 69 application, 29 C.F.R. S 1604.2(a) (1970) (cited in Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 716 (1969)); Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir.). cert, denied, 404 U.S. 950 (1971). 66. Courts have differed on how closely the "exclusionary characteristic" must be linked to each woman. Compare Rosenfeld v. Southern Pac. Co., 444 F.2d 1219 (9th Cir. 1971) (refusal to give effect to differential treatment based on characteristics closely correlated with many or all members of one sex, but not held exclusively by each member) with Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969) (discrimination would be allowed on the basis of a trait that "all or substantially all" women possess). 67. See text accompanying notes 11-19 supra. 68. Today reproduction is largely discretionary. Young women may be uncertain about the likelihood of future child-bearing. Older women, whose families are complete or whose life plans have solidified, may be certain of their future plans. See Hunt, supra note 8, at 12 (one-quarter of wives aged 18 to 24 and two-thirds of wives 18 to 39 years old expect no more births). 69. Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir.), cert, dismissed, 404 U.S. 1006 (1971). BFS 005393 1130 CALIFORNIA LAW REVIEW [Vol. 65:1113 this test, an employer must establish three factors: (1) A business purpose "sufficiently compelling to override any discriminatory im pact"70; (2) the effectiveness of the discriminatory practice in carrying out the business purpose;71 7a2nd (3) the absence of any practicable, less discriminatory alternatives capable of effecting the business purpose.77 Thus, an employer attempting to justify the exclusion of women from the toxic workplace by means of the business necessity defense faces a heavy burden of justification. a. Compelling Business Purpose There are at least two "business purposes" that might be offered by employers seeking to meet the business necessity test. The first would be an asserted business need to care for the job-related health needs of the work force.73 Where an employee suffers a specific health risk not protected by existing safety techniques, the employitrVni oht assume responsibility for employee safety. The assertetfjnre&t^Olisease, defect or death to employees and their offspring is rerjhmly "compelling" in its dramatic impact, perhaps^ufGcientfy'j so as to justify exclusion from the workplace. Hmvef'e^tRare^are several problems with employer protectionism as a^tmsmgsj necessity." Given the wie range of adverse health consequences resultant from occupational exposure by any worker,74 an employer using em ployee safety as a business purpose might have to show that protecting some women's safety is more "compelling" than protecting other work ers facing high risks from different workplace hazards. The antipatemalistic approach of Title VII and the tarnished credibility of historical efforts to "protect" women through discriminatory treatment render that showing immediately suspect. Moreover, an employer's paternalistic concern for workers, even if genuine, is not a clear "busi ness" purpose. A business enterprise can function efficiently and pro ductively with a high level of adverse reproductive health impacts. Such injuries do not, for the most part, affect the worker's present perform ance, but rather affect the offspring. Although employer concern for employee health and safety is desirable, the history of American industry does not evidence a level of this concern that even competes with traditional productivity and profit interests.75 -- 71. Id. 72. Id. 73. The EEOC has found that protection of women's reproductive health is a "business necessity." Whether it viewed the employer's concern as employee safety or business efficiency is unclear. [1974] 2 Empl. Prac. Guide (CCH) EEOC Dec. U 6442. 74. See text accompanying notes 1*2 supra. 75. See note 27 supra. 1977) Finally, employees as right to work social objecti en the import priority to on intended the; of the other,7 The sect notions of prc prise (rather ; disproportion: quences of inj: that inclusion subjects the int Due to il variety of act! worker might i injuries suffen 76. Legislate Safety and Health One objective--occ See Legislative His Cose, and Ad. Ni Act, [1970] U.S. t Employment Oppoi 77. See, e.g,, an ultrahazardous though the harm i party or by force t Draft No. 10, 1964 distributor of an "i the product). Whi such products is unc Cir. 1973), cert, det compensation and at employer's warning , likelihood of lung ca Prod. Corp., 523 F.2< from the asbestos r many toxic workpla holdings emphasize t enterprises, 78. Under wor penses and lost wage Other less traditions Wolfe v. Sibley, Lin, 637 (1975) (worker' under worker's compt . .. . **~ 'V.T rj BFS 005394 (Vol. 65-1113 (1) A business criminatory imctice in carrying practicable, less nness purpose.Tof women from ' defense faces a i ght be offered by The first would i health needs of ic health risk not er might assume of disease, defect ' "compelling" in fy exclusion from is with employer quences resultant -ployer using era* nv that protecting cting other worktards. The antiled credibility of linatoiy treatment er, an employer's not a dear "bus:fficiently arc protilth impact Such s present perro--ployer cor.ce.-r. tor American ir.ccsmy en compete- -tth -producthi at- ' ' 1 i as cmp!e ~ ' 3 (CCH) ^O* 1977] TOXIC WORKPLACES 1131 Finally, where an employer asserts a protective responsibility to employees as a compelling business purpose, and the employee asserts a right to work, the court must balance two important but unquantifiable social objectives: job safety and equal employment opportunity. Giv en the importance of each interest, a court will find it difficult to assign priority to one over the other. Moreover, it is doubtful that Congress intended the goals in one area to be compromised to advance the goals of the other,TC especially when compromise is not absolutely necessary. The second "business purpose," more coneist^twith traditional notions of productivity, would arisefrom tS3^.ertitprotect the enter prise (rather than the w^er^ronWdditiokm expense as a result of disproportionatelevelS^OFria^^l Anticipating liability for the conse quences of injimlo^ujoi'iter or her offspring, an employer might argue that inclusion of-women with reproductive capacity in the workplace subjects the industry to inevitable and overwhelming costs. Due to the progressive trend of enterprise liability," there are a variety of actions in which an employer might be found liable. A worker might recover in worker's compensation or tort for reproductive injuries suffered.18 Should a worker's child die due to toxic ex-76 77 78 76. Legislative history of the Civil Rights Act of 1964 and the Occupational Safety and Health Act indicate no evidence that Congress intended greater deference to one objective--occupational safety or equal employment opportunity--than to the other. See Legislative History of Title VII of the Civil Rights Act of 1964, [19641 U.S. Code Cong. and Ad. News 2355; Legislative History of the Occupational Safety and Health Act, [1970] U.S. Code Cong, and Ad. News 5177; Legislative History of the Equal Employment Opportunity Act of 1972, [1972] U.S. Code Cong. & Ad. News 2137. 77. See, e.g,, Restatement of Torts 5 519, 522 (1938) (a person carrying on an ultrahazardous activity is strictly liable for harm resulting from that activity, even though the harm is caused by the conduct of an innocent, negligent or reckless third party or by force of nature); accord, Restatement (Second) of Torts 519 (Tent. Draft No. 10, 1964) and Restatement of Torts 402a (1938), (a manufacturer or distributor of an "unavoidably unsafe" product has a duty to warn "ultimate users" of the product). Whether } 402a includes employees involved in the manufacturing of such products is unclear. In Bore] v. Fibreboard Paper Prod. Corp., 493 F,2d 1076 (5th Cir, 1973), cert, denied. 419 U.S. 869 (1974), an asbestos installer recovered worker's compensation and additional damages under the theory of 402a. The court found the employer's warning of the hazards of asbestos inadequate since it did not mention the likelihood of lung cancer and death from asbestosis. See also Karjala v. Johns-Manville Prod. Corp., 523 F.2d 155 (8th Cir, 1975). In Borel and Karjala the plaintiff recovered from the asbestos manufacturer, rather than the installer's immediate employer. In many toxic workplace cases, however, the employer is also the manufacturer. These holdings emphasize the high degree of accountability placed by the courts on industrial enterprises. 78. Under worker's compensation, recovery would be for compensable medical ex penses and lost wages; in a tort action, for exemplary damages, emotional distress and other less traditional remedies. Note also an expansion of worker's compensation. Wolfe v. Sibley, Lindsay & Curr Co., 36 N.Y.2d 505, 330 N.E.2d 603, 369 N.Y.S.2d 637 (1975) (worker's acute depression from job-related "psychic trauma" compensable under worker's compensation). BFS 005395 1132 CALIFORNIA LAW REVIEW [Vol. 65:1113 posure, a wrongful death action might be maintained.7 Additionally, a child conceived with a defect would possibly have standing to sue.7809 In short, the potential costs of employer liability are great. The fact that workplace injury has traditionally been viewed as a cost of doing business81 8w2eakens the characterization of these costs as a com pelling business purpose. So does the risk of male reproductive injury--there is no guarantee that liability will decrease where only fertile males are exposed. On the other hand,^wflete=<he injury is beyond the employer's preventive control and fSp&tsJfin &ostantial addi tional costs, the defense seems plausible*?? j Such financial constraint hkely constitute the major part of a "business necessity"defe6se^^^l Addition to providing the basis for the employer's businessw&rosef the argument of prohibitive costs will be a major impediment terthe adoption of less discriminatory alternatives.83 The use of financial burdens as the principal defense to a Title VII claim has not yet been accepted by the courts or the Equal Employment Opportunity Commission (EEOC).84 Historical reluctance to sanction discriminatory treatment because of increased costs has reflected legiti- 79. See, e.g., Cal. Civ. Proc. Code 5 377 (West 1977). But compare Justus v. Atchison, 19 Cal. 3d 564 (1977) (no recovery for wrongful death of fetus') (12 states concurring) with O'Neill v. Morse, 385 Mich. 130, 188 N.W,2d 785 (1971) (action available for stillborn fetus) (24 states concurring). 80. For example, a child injured by toxic exposure can maintain a cause of action for personal injury in California. Justus v. Atchison, 19 Cal. 3d 564, 577 (1977). The child may elect to sue while a minor (represented by a guardian ad litem), Cal. Civ. Proc. Code 352 (West 1977), or retain the right of action until the age of majority. Cal. Civ. Proc. Code 29 (West 1977). 81. Consider, for example, the financial impact on industry of present levels of injury. In 1973, 15.3 cases of occupational injury or illness per 100 fulltime employees were reported in the manufacturing industry, Statistical Abstract, U.S. Dep't of Com merce, Bureau of the Census 376 (1975), incurring costs of lowered productivity, medi cal care, and sick leave. 82. Where the fear of future litigation is a "business necessity" justifying exclusion of women workers, some compromises may be available--for example, payment of a por tion of wages into an insurance fund to indemnify the employer from future liability, or possibly a waiver of future liability. See generally the discussion of less restrictive alternatives. Section B.2.C. infra. But see notes 120-22 infra concerning limitations to the waiver concept. Women's advocates strongly oppose these alternatives, arguing that such trade-offs for equal employment are coercively designed and are continuations of historic discrimination. In some instances, however, they may be desirable alterna tives to some women seeking certain job opportunities. 83. See text accompanying notes 100-22 infra. 84. Costs rejected as adequate "business necessities" include validation of tests (Robinson v. Lorillard Corp., 444 F.2d 791, 799 (4th Cir.), cert, dismissed, 404 U.S. 1006 (1971)), customer preference (and resultant business losses where patronage is thereby reduced) (Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 388 (5th Cir.), cert, denied, 404 U.S. 950 (1971)), training costs (United States v. N.L. Indus., Inc., 479 F.2d 354, 366 (8th Cir. 1973)), and "reasonable adjustments" in berth and toilet facilities to accommodate women Merchant Marine officers and sailors [1969] Emm.. Prac. Guide (CCH) EEOC Dec. U 6010). 1977] mate skept slight incre active disc Court diet: nomic pen. b. Ejfecti Busine Both f position the The exclusi; carry out t does not ex risk, then t safety nor burden of d in carrying disproportic Scjenti; greater risks some evider elusions rest sometimes t 85. For t F, Supp. 367, 3 of a "cost ditfe the rule in viev tunity." The S defendant's pla (1976). See a 581 (9th Cir. 1 to both sexes, employer and lately. . . ." 86. See, e 581, 588 (9th C 87. Seete 88. The d elusive scientific posure must be Safety and Heal; evaluation^],'' 1 be codified at 1; The problems of world is develop findings are ince Concepts, Anna: BFS 005396 /ol. 65:1113 Additionally, standing to great. The as a cost of ts as a cornreproductive : where only the injury is stantial addi- ajor part of a basis for the :osts will be a alternatives.83 to a Title VII 1 Employment ce to sanction eflected legiti- ompare Justus v. fetus) (12 states S (1971) (action a cause of action 577 (1977). The litem). Cal. Civ. i age of majority. ' present levels of 'uHtime employees S. Dep't of Cornproductivity, medi- lustifyinfi exclusion payment of a porsm future liability, i of less restrictive cerning limitations Iternatives, arguing d are continuations e desirable altema- validation of tests dismissed, 404 U.S. where patronage is F.2d 385, 3S8 (5th ates v. N.I~ Indus., nents" in berth and and sailors {1969] 1977] TOXIC WORKPLACES 1133 mate skepticism of industry's inability to absorb them, especially where slight increases in financial responsibility might rectify a long record of active discrimination.85 However, legislative history and Supreme Court dicta indicate that cost differentials, where amounting to "eco nomic penalties," may yet be valid defenses for employers.80 b. Effectiveness of the Discriminatory Practice in Carrying Out the Business Purpose Both previously mentioned "business purposes" rely upon the sup position that the excluded group faces a disproportionate risk of injury. The exclusion of fertile women from the workplace ^1 obviously fail to carry out either business purpose if, ip (^proportionate risk does not exist. If workers rajiaififa? in tgpworkplace are equally at risk, then the exclusion,^fflsfef wqmefl will neither maximize worker safety nor minimis rai^^^^rTiability. Thus, the employer has the burden of demansgatHlg the effectiveness of the discriminatory practice in carrying ourthe business purpose by making a factual showing of disproportionate risk. Scientific support for the assumption that female workers face greater risks than male workers is frequently lacking.87 In other cases, some evidence of disproportionate risk exists, but the studies' con clusions rest upon less than thoroughly conclusive findings.88 Perhaps sometimes the health risks at stake are sufficiently serious to justify 85. For example, the District Court decision in Gilbert v. General Elec. Co., 375 F. Supp. 367, 383 (E.D. Va. 1974), rev'd, 97 S. Ct. 401 (1976), recognized the existence of a "cost differential defense," but concluded that the facts called for an exception to the rule in view of the Congressional purpose to "sexually equalize employment oppor tunity." The Supreme Court noted the lower court's conclusion but, having ruled that defendant's plan had no discriminatory effect, did not reach the issue. 97 S. Ct. 401 (1976). See also Manhart v. City of Los Angeles, Dep't of Water k Power, 553 F.2d 581 (9th Cir. 1976), which required the employer to provide equal employment benefits to both sexes, although "[actuarial distinctions arguably enhance the ability of the employer and the pension administrators to predict costs and benefits more accu rately. . . 86. See, e.g., Manhart v. City of Los Angeles, Dep't of Water k Power, 553 F.2d 581, 588 (9th Cir. 1976). 87. See text accompanying notes 11-19 supra88. The difficulty of making regulatory or remedial rulings on the basis of incon clusive scientific findings is a growing problem. Although standards regulating toxic ex posure must be developed on the basis of the "best available evidence," Occupational Safety and Health Act, 29 U.S.C. 5 655(b)(5) (1970), or "sufficient" to form "reasoned evaluation^]." Toxic Substances Control Act, Pub. L. 94-469, 90 Stat. 2003 (1976) (to be codified at 15 U.S.C. $ 2601(5)(e)), the predictive value of such data varies widely. The problems of prediction are discussed at notes 18-19 supra. In response the scientific world is developing terminology to predict the impact of exposure where actual scientific findings are inconclusive. See, e.g., Kotin, Dose-Response Relationship and Threshold Concepts. Annals, supra note 2, at 22, 26. BFS 0053 1134 CALIFORNIA LAW REVIEW fVol. 65:1113 selective exclusion on less than conclusive findings.*0 Such determina tions deserve close scrutiny, however, and in no case should courts rely on essentially hypothetical or speculative evidence.00 Courts will also have to determine what degree of differential risk of injury is sufficiently disproportionate so as to justify discrimina tory treatment. Where the risk of injury to fertile women is only incrementally greater than that to their male counterparts,01 it must be determined that such risk is sufficiently distinct and disproportionate to warrant differential treatment on the job. Another problem arises where an employer seeks to exclude all women of childbearing capacity on the basis of risks$|& pregnant wom en, without demonstrating the likelihood offlgjtegJ^ogtSor all members of the excluded class. The afpfem&tfonea^Bcnjpational qualification doctrine frequently adopt^in=iHisiness Necessity cases02 requires that "all or substantial}* ml" of the class under question share the characteristic thar^ajakes them unable to perform a job "safely or efficiently."03 Assuming a factual basis for the claim that pregnant women face higher risks of teratogenic injury from a toxin, excluding all fertile women still affects many women who, due to luck or design, will not become pregnant during or soon after their working careers. At least one court has, in dictum, recognized the potential need for "reason able general rule[s]" where "it is impossible or highly impractical to deal with women on an individualized basis."04 If individual testing or89 90 91 92 93 94 89. See generally Schneiderman, Mantel, & Brown, From Mouse to Man--or Row to Get from the Laboratory to Park Avenue and 59th Street, 246 Annals OF the N.Y. Academy of Sciences 237, 244 (1975). 90. Since liability for worker injury is the most--or only--appropriate "business purpose" for exclusion, existing tort doctrines defining foreseeability for purposes of es tablishing liability might provide doctrinal guidance. See generally W. Prosser, Law of Torts 267-70 (1971). 91. For example, female X-ray technicians are twice as likely to bear defective children than other women, while wives of male X-ray technicians give birth to defective children at 114 times the normal rate. Hricko, supra note 5, at C-l 1. 92. In practice, courts have given minimal attention to the doctrinal and theoreti cal differences between the occupational qualification and business necessity defenses. See, e.g., Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 388 (5th Cir.), cert, denied, 404 U.S. 950 (1971), where the court analyzes the standard of proof to establish an occupational qualification as "business necessity"; [1971] 2 EmfL. Prac. Guide (CCH) EEOC Dec. [[ 6244, where the EEOC ostensibly used an occupational qualification test, but incorporated the Griggs "reasonable available alternatives" test, as sociated with business necessity. See also Hodgson v. Greyhound, 499 F.2d 859 (7th Cir.), cert, denied, 419 U.S. 1122 (1974), an age discrimination case, where the court accepts as a valid occupational qualification that "the essence of [Greyhound's] Opera tions would be endangered by hiring drivers over forty years of age," thus parroting the business necessity doctrine developed in Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), cert, dismissed, 404 U.S. 1006 (1971). 93. Weeks v. Southern Bell Tel. 4 Tel. Co., 408 F.2d 228, 235 (5th Cir. 1969). 94. Id. at 235 n.5. 1977J evaluation c courts might the only pra. The ju assumptions viable altera give effect ti qualified for possible to e medical tests remain pregr than that of i to apply gene her from the \ c. Least Re. The doc under the "bu to look for ft burdensome t pose exists, th tive altemativ 95. Pregnat available until th: in early stages of remove the workc During Pregnane; maximal in the ti. in maternal blood in later stages, aft ital Abnormalities also Landesman a termination of Hu Pregnancy Test, 2 positive results fro of the first misset infra. 96. Rosenfel 97. See also 581, 586-88 (9th visions of annual p with two Title VII with the policy of the employer could found discriminatic abolition of sex-bas 98. Robinson U.S. 1006 (1971). BFS 0Q539S ~v 1113 .. nninas*,-. . courts .-.'vrcntial - j-uninaw.-,-- only Is; : Jit be lisr v v-'.ionate ude all yr.v*!-'; wom- ;o: .- -embers p' ^_ uicanon ?- -v. res that csrv ..'.ire the vu'ely or ^ -.'regnant V . Jins: all -- ;n, will nc er.-.*.--.-rs. At v * * m *- ' reason..... ...etical to - ,.->t>ng or <C *" Wt. ~pr Ha* HIE N.Y. **. ,* "businc^ 1**, .% ,\*xCS of f'* \\ * i-'w K x'1 defector 'j|. .s ... defective .nvt theorett- r^-v..o defense'<' sjiS t5th Cir.). `.\..'d ,'f rr0Pf 10 ',T . , ,,rt. Phw. .. j., .W-Upa^'"'*1 *, -M 859 ,7th 1 -I..--' "'C p^'.-h'e ^ I'M 791 <* -;t kMl. |9(.*n 1977] TOXIC WORKPLACES 1135 evaluation of women workers is considered impractical or ineffective,** courts might view the exclusion of all women of childbearing capacity as the only practicable method of protecting pregnant women. The judiciary, however, has shown reluctance to make general assumptions about women as a class when individualized treatment is a viable alternative. The Ninth Circuit Court of Appealsrj^s refused to give effect to a procedure where males were preShiSEir fo^e physically qualified for an "arduous" positjfeft anskfemalj^^efe rejected as im possible to evaluate.*? If a wojngiycould produce credible evidence-- medical tests, her Jis^s-^lfffrmations of an intention not to become or remain pregnant--to show that the risk of injury to her is not greater than that of fertile male counterparts, an employer should have no right to apply general assumptions of disproportionate risk to justify excluding her from the workplace.*7 c. Least Restrictive A Iterrtalives The doctrine of the "least restrictive alternative," as developed under the "business necessity" exception to Title VII, requires employers to look for feasible alternatives to discriminatory action that are less burdensome to employees.*5 Even where a compelling business pur pose exists, the employer must demonstrate the absence of "less restric tive alternatives" before "business necessity" will justify the discrimina- 95. Pregnancy tests are no: always accurate, and a dependable result may not be available until the fourth or fifth week of pregnancy. Where teratogenic injury occurs in early stages of gestation, a pregnancy determination may not be available in time to remove the worker from harmful exposure. See, e.g., Angle It Mclntire, Lead Poisoning During Pregnancy, 108 Am. J. Dis. Child. 436 (1961) (indicating a definite fetal risk, maximal in the first trimester, from intrauterine exposure to high concentrations of lead in maternal blood). On the other hand, some teratogenic effects may be harmful only in later stages, after pregnancy detection is available. See Corbett, Cancer and Congen ital Abnormalities Associated with Anesthetics, Annals, supra note 2, at 58, 63. See also Landesman and Saxena, Results of the First 1000 Radioreceptorassays for the De termination of Human Chorionic Gonadotropin: A New Rapid, Reliable, and Sensitive Pregnancy Test, 27 Fertility and Sterility 357 (1976) (describing a test providing positive results from within one week after conception with 100% accuracy at the time of the first missed period). See the privacy discussion accompanying notes 108-15 Infra. 96. Rosenfeld v. Southern Pa:. Co., 444 F.2d 1219, 1225 (9th Cir. 1971). 97. See also Manhart v. City of Los Angeles, Dep't of Water & Power, 553 F.2d 581, 586-88 (9th Cir. 1976). Manhart was a case challenging sex-differential pro visions of annual pension beccfit'. which the court characterized as presenting a conflict with two Title VII doctrines: rite policy against per se discrimination directly conflicts with the policy of allowing re'e'.ant factors to be considered." Id. at 586. Although die employer could not predict the longevity of individual women employees, the court found discrimination per se, rejected the employer's affirmative defenses, and ordered abolition of sex-based actuarial standards for determining pension benefits. 98. Robinson v. Lorillard Ccrp., 444 F.2d 791, 798 (4th Cir.), cert, dismissed, 404 U.S. 1006 (1971). BFS 005399 1136 CALIFORNIA LAW REVIEW [Vol. 65:1113 tory practice.* There are at least four less restrictive alternatives to the practice of excluding women workers from the toxic workplace. Three of these alternatives--removal of toxic risks, systems for individual screening, and provision for alternative employment or benefits--are viable. A fourth less restrictive alternative, disclosure and waiver, is apparently not workable despite a certain appeal. Although each alter native presents problems--either for employer or employee--some com bination thereof will often provide an alternative to exclusion or other differential treatment. i. Removal of toxic risks from the workplace. Where the employ er's inability to provide a safe working environment isrsft fcaue, rather than the incapacity of employees to perfoon tfiSt jpps^mployers should attempt to clean up the workplace O^gtherwijB^protect workers91090 before adapting personnel poIic^HcfeeempSlsale for disproportionate risks. The limitations-of (mn^^jf^iWtive would center around the feasibility of reducing ep^ie<' This approach is unorthodox insofar as it provides "worker safety'' remedies in situations heretofore limited to employment and compensa tion remedies. Moreover, the separate mandate regulating worker safe ty--the Occupational Safety and Health Act--and its toxic substances control clause101 1o0p2er1a0te3 independently of Title VII, and might be said to pre-empt this sort of employer regulation. On the other hand. Title VII explicitly provides for formulation of any remedy within the reason able grasp of the employer.100 The similarity between the two man dates argues for joint study and interpretation in order to resolve poten tial conflicts.100 99. The EEOC has decided that the forced resignation of a pregnant X-ray tech nician violated Title VII. Although X-r2>' levels in the workplace were hazardous to the employee's unborn child, the resignation policy was unlawful because less discrimina tory alternatives were available for accomplishing the employer's protective purpose, such as leaves of absence, sick leave and maternity benefits. The Commission found that difficulty finding a temporary replacement for the pregnant employee did not justify the employer's failure to provide alternatives to resignation. [1974] 2 Empl. Prac. Glide (CCH) EEOC Dec. r 6442. 100. Employers might, for example, provide respirators or other protective equip ment. 101. Occupational Safety and Health Act, 29 U.S.C. S 655(b)(5) (1970). See notes 18-21 supra. 102. See, e.g.. Civil Rights Act of 1964, } 707(a), 42 U.S.C. S 20Q0e-6(a) (Supp. V, 1975), which provides for actions by the Attorney General "requesting such relief . . . as he deems necessary to insure the full enjoyment of the rights herein described." 103. The structure of the two laws is quite similar, particularly in their balancing of employer responsibilities and practical limitations. Just as Title VII's mandate to pro vide equal employment opportunity is limited to remedies within the reasonable grasp of employers, OSHA's toxic substances clause mandates a clean workplace within "feas ible" limits. See notes 20-22 supra, It seems that a mitigating practice found to be less than an "economic penalty" for Title VII purposes, see note 86 supra, would also 1977] Addit First, the j Title VII moved, bo levels of e.' simultaneo ii. S; employer c petting evid mechanism not subject a system d: would disth Obviously, ; ductivc "sta cumbersome of avoiding women after retaining pr operating su employees- tc then provide ee's status, their status < intent to bee ployer. Title VI ual screenin' validation as and have flat ran effectivel risk, it may bt :* a "feasible" o t-coably able to i vomec employee Civett iris congn spply them siraul; 104. This m; 105. See not 105. See. e.g five Co., 416 F.2 107. See, e.g fit <9-3 Ci:. 197 "ation -; Rtbinso U.S. 1006 (IS BF5 005400 Vol. 65:1113 natives to the place. Three or individual benefits--are nd waiver, is gh each alter:--some comtsion or other e the employL issue, rather b$, employers ect workers100 ^proportionate r around the .vorker safety" nd compensag worker safe\ic substances might be said ;er hand, Title tin the reasonthe two manresolve poten- gnant X-ray lechvere hazardous to tse less discriminarotective purpose, Commission found ,yee did not justify l] 2 Empl. PraC. r protective equip- (5) (1970). See 2000c-6(a) (Supp. uesting such relief herein described." in their balancing Ts mandate to proe reasonable grasp place within "feasactice found to be supra. would also 1977] TOXIC WORKPLACES 1137 Additional ties between the two issues compel this alternative. First, the presence of the occupational hazard is a direct cause of the Title VII problem itself. Further, once the hazard is limited or re moved, both male and female workers would benefit. Reduction of levels of exposure would not only equalize job opportunity but would simultaneously promote the goal of overall occupational health. ii. Systems for individual screening and evaluation. Where an employer cannot eliminate workplace hazards and demonstrates com pelling evidence of disproportionate risk, die industry should provide a mechanism for differentiating accuratehrfc&ween those who are and are not subject to the hazard. Wher^^toOTtfeAtogenic risks are concerned, a system differentiating -between ^rrgnant and non-pregnant workers would distinguishnpk reaml^ those in need of special treatment.104 Obviouriy,(jdchuraT& ton up-to-date awareness of an individual's reproductftt^tJu$r would be a complicated process, and appears to be cumbememe and costly.105 10I6t p1r0e7sents, however, one of the only ways of avoiding outright exclusion of large groups of otherwise employable women after an employer has established the disproportionate danger of retaining pregnant women in a workplace. Alternative methods of operating such a system arc available. An employer might first screen employees to identify those with the capability of becoming pregnant, then provide industry-operated pregnancy testing to monitor its employ ee's status. As an alternative, employees might independently monitor their status and disclose relevant information--child bearing capacity, intent to become pregnant or the fact of pregnancy itself--to the em ployer. Title VII doctrine strongly supports employer provision of individ ual screening systems. Cases have solidly upheld testing and test validation as mandatory components of anti-discrimination policy,108 and have flatly rejected cost defenses.101 Thus, if a system exists that can effectively assist individual assessment of disproportionate worker risk, it may be required at the employer's expense. be a "feasible" one. See note 21 and accompanying text supra. If an employer is rea sonably able to reduce toxic exposure sufficiently to reduce exclusionary treatment of women employees, that action is probably also required within the ambit of OSHA. Given this congruence, it seems appropriate for a court to recognize both mandates and apply them simultaneously. 104. This may not be true with regard to cumulative teratogens. See note 14 supra. 105. See note 95 supra. 106. See, e.g., Albemarle v. Moody, 422 U.S. 405 (1975); Bowe v. Colgate-Palm olive Co., 416 F.2d 711, 718 (1969). 107. See. e.g., Manhart v. City of Los Angeles, Dcp't of Water & Power, 553 F.2d 581 (9th Cir. 1976) (cost of determining pension risks on more than statistical infor mation); Robinson v, Lorillard Corp., 444 F.2d 791, 799 (4th Cir.), cert, dismissed, 404 U.S. 1006 (1971) (cost of testing validation). BFS 005401 1138 CALIFORNIA LAW REVIEW [Vol. 65:1113 The burdens of this alternative to employees should be evaluated before it is imposed on a work force. Some employees may regard this alternative as more, desirable than job loss or demotion. Others, how ever, might legitimately view inquiry into a worker's reproductive status, continuous monitoring of that status during their working career, and employer influence in decisions regarding procreation, as overly intrusive. Numerous constitutional rulings108 have recognized the burden imposed by such intrusions.109 The right to subject one's body to possible harm is noj^qpftmited, even where constitutional protection is available. &vfifl3Qa|5s) have held that a person cannot totally insulate suchfdecis^qjaking from public safety concerns.110 Moreover^ aq^omWs (gvenfurther limited where future children are concersed^l^Roe' v. Wade,111 1t1h2e major decision outlining the limffe^ i($ght))tfe~an abortion, the Court carefully noted that "a state may {fo^erly assert important interests [through regulation] in safeguarding health, in maintaining medical standards, and in protecting potential life."119 In toxic workplace cases--often characterized by injury in the first trimester and long term injurious effects--the state's interest may appear even more compelling.113 108. A constitutional privacy argument can only be made against certain employers. If the employer's inquiries derived from his private need or desire for information, his actions would be immune from constitutional scrutiny, since an individual's privacy is constitutionally protected only from governmental intrusions. See, eg.. Moose Lodge v. Irvis, 407 U.S. 163, 173 (1972). If an employer is a governmental entity, covered by the 1972 amendments to Title VII, or is so regulated by such entity that it may be characterized as "governmental," it must respect an individual's privacy, as defined by Supreme Court decisions. For example, if OSHA promulgated regulations limiting the exposure of specified classes of individuals believed to be at risk from certain toxic sub stances, and employers sought to comply with those regulations by scrutinizing an em ployee's long range or day-to-day reproductive status, women workers might have a con stitutional right of action against such regulations on privacy grounds. 109. See, e.g.. Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Poe v. Ullman, 367 U.S. 497, 551-52 (1961) (Harlan, L, dissenting); Skinner v. Oklahoma, 316 U.S, 535 (1942). See generally Comment, A Taxonomy of Privacy: Repose, Sanctuary and Intimate Decision, 64 Calif. L. Rev. 1447, 1466-83 (1977). 110. See, e.g., Minnesota State Bd. of Health v. City of Brainerd, -- Minn- --, 241 N.W.2d 624, 631 (1976) (right of bodily integrity not absolute). See also Jacobson v. Massachusetts, 197 U.S. 11 (1905). 111. 410 U.S. 113 (1973). See also Doe v. Bolton, 410 U.S. 179 (1973). 112. 410 U.S. at 153-54 (1973). The Court continued: The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus .... The situation therefore is inherently different from marital privacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which [previous decisions were] concerned. Id. at 159. See also Raleigh-Fitkin-Paul Morgan Memorial Hosp. v. Anderson, 42 NJ. 421, 201 A.2d 537, cert, denied, 377 U.S. 985 (1964) (pregnant woman denied right to refuse blood transfusion because of impact on the unborn child), 113. In Roe the Court found a state interest in regulating abortion after the first 1977] The facts of a state actio ail's right the govern cases, the analysis, burdensoir employer however, c can be pre ty.m Hi. Pr er can neit either bees employer c native wou Precedent e of toxic exj: reduced, i systems of Alternative: with retenti absence. 1 employmen working wo The E needs of prt causes.118 trimester of prt The poten the fetus, whic child. In the ployees to worl the birth of an care for the res est in this case t 114. Id. 115. Seen 116. See, . }or Exposure to 117. See, e supra note 3, ai to leukemia) nr to Other parts o 118. See. . BFS 005402 /ol. 65:1113 De evaluated i regard this Others, howjctive status, career, and rly intrusive, den imposed X unlimited, I cases have naking from rther limited II the major urt carefully :sts [through al standards, cases--often rm injurious tg.115 rtatn employers, information, his lual's privacy is Moose Lodge entity, covered that it may be as defined by ons limiting the ertain toxic subitinizing an emight have a con- Connecticut, 381 . J., dissenting); A Taxonomy of . 1447, 1466-83 -- Minn. --, 241 e also Jacobson 973). i an embryo terent from Ttarriage, or erned. 42 NJ. 421,201 i right to refuse an after the first 1977] TOXIC WORKPLACES 1139 The outcome of this balancing process will vary according to the facts of an individual case and the standard of review applied. In a state action situation where a governmental entity is involved, the wom an's right of privacy in the reproductive area would be balanced against the government's parens patriae interests as in Roe v. Wade.11* In other cases, the business necessity test requires a similar but more limited analysis. Where a woman opposes a screening alternative as overly burdensome, her interests must be reviewed in contrast with those of the employer to identify the least restrictive alternative. The employer, however, cannot represent societal parens patriae interests unless they can be presented within the context of an appropriate business necessi ty.115 Hi. Provision of alternative eatpwymekfy^benefits. If an employ er can neither eliminate toxjghazai^p aor retain all groups of workers, either because they^ttpak^j^r disproportionate risk or because the employer cantlpDd^ingi^m between them, another less restrictive alter native would provision of supplemental employment or benefits. Precedent exists for employers to mitigate the adverse effects on workers of toxic exposure, short of exclusion, where the exposure itself cannot be reduced. Some industries engage in extensive efforts to rid employees' systems of toxins,115 and transfer particularly susceptible employees.117 Alternatives might also include provision of compensatory benefits, with retention of seniority rights, during a pregnant worker's leave of absence. These sorts of alternatives would help to reduce the adverse employment impact that a finding of disproportionate risk carries for working women. The EEOC frequently requires employers to compensate for the needs of pregnant employees who are disabled due to pregnancy-related causes.115 If the Gilbert decision is read as repudiating this obliga- trimester of pregnancy and through the last trimester. 410 U.S. 153-54 (1973). The potential outcome of the state's noninvolvement there was the elimination of the fetus, which had moral implications but left no future state role in caring for the child. In the toxic workplace case, the state's noninvolvement--that is, allowing em ployees to work in toxic environments regardless of reproductive status--could result in the birth of an individual with defects that may require state intervention and protective care for the rest of that individual's life. Thus, the state may well have a greater inter est in this case than in the abortion cases. 114. Id. 115. See text accompanying notes 73-75 supra. 116. See, e.g.. Occupational Safety and Health Administration, Proposed Standard for Exposure to Lead, 42 Fed. Reg. 808, 809 (1977). 117. See, e.g., Wolfe, A Case for Worker Involvement in Risk Assessment, Annals, supra note 3, at 410, 412 (workers exposed to benzene (which has been causally linked to leukemia) are routinely checked for abnormal white blood cell levels, and transferred to other parts of the plant until an abnormal count returns to normal). 118. See, e.g., [1974] 2 Emfl. Prac. Guide (CCH) EEOC Dec. It 6442 (al- BFS 00540J 1140 CALIFORNIA LAW REVIEW [Vol. 65:1113 tion,110 the higher cost of compensating pregnant workers may prove to be a valid employer defense. Where, however, the employer's working conditions necessitate an exclusion or alternative employment, the situa tion is certainly more analogous to an injury from complicated or dangerous equipment than it is to a leave due to a "normal" and "voluntary" pregnancy. Any supplemental benefits afforded an exclud ed pregnant or fertile woman employee are arguably a mere cost of doing business in the toxic workplace exclusion circumstance. iv. Full disclosure and waiver. In lieu of requiring full informa tion concerning an employee's reproductive "status" andxemployment decisionmaking based on that information, an empktyj^r^TT^ht provide full disclosure of the risks of exposure and spjow "high risk" employees to make individual determinations regproing exposure, with the tradeoff that the worker would jftfereby^yafVe future liability against the employer. This alternativeattractive to those women who intend to delay or defej^altogewitTthe possibility of childbearing. For them, the right of a fuwfiyort4ction may be valueless and their present job invaluable. Waivepp however, presents significant legal problems. First, the alternative conflicts with an established doctrine prohibit ing employment contracts from incorporating clauses waiving employer liability for work-related injury'.110 Any formal agreement between a worker and the enterprise barring future liability for injury to asscrtedly "high risk" employees would probably fail under this doctrine, as con trary to public policy. An informal understanding, based on full disclo sure and tacit consent, might provide the industry with a defense under traditional tort law, but the fluctuating state of such doctrines renders that option an unreliable predicter of the parties' rights and obliga tions.121 * * * 119 120 121 though pregnant anesthetists were at disproportionate risk, mandatory resignation was not the least restrictive alternative where alternative benefits and employment plans, such as a temporary layoff, were available). 119. See Gilbert v. General Elec. Co., 375 F. Supp. 367 (E.D. Va. 1974), rev'd, 97 S. Ct. 401 (1976), where the district court's order, to provide an affirmative financial obligation to assure equal employment opportunity through inclusion of pregnancy-re lated disabilities within the defendant's disability insurance package, was reversed on ap peal. Since the Supreme Court found no sex-based discrimination, it did not reach the issue of compensatory alternatives. It implied, however, that employer obligations to mitigate adverse employment consequences of pregnancy might be minimal or nonex istent. 97 S. Ct. 401, 411-13 (1976). 120. S. Williston, Contracts 5 J751A (1957) (contracts between employer and employee to waive future liability are void as against public policy). 121. See, e.g.. Restatement of Torts 523, 524 (1938); accord. Restatement (Second) of Torts 55 523, 524 (Tent. Draft No. 10, 1964), Depending on the juris diction, the modern notion of comparative negligence or the established doctrines of con tributory negligence would probably provide the same sort of bar to liability that the waiver concept would supply. Borel v. Fibreboard Paper Prod. Corp-. 493 F.2d 1076, 1977] Mot of injury area of tr theories r shelter is Perb scientific in resolvi: work, hot factual su the least, their actio The: workplace still risk st might qut employme increased 1 There determine are not ne ment--ma long as wo should not Secon diverts soci women wo 1096-1100 (5 of the plaintif proceeds to e; five Negligent employees arc of exposure m or strict liabil beyond the see 122. Unit were imputed ordinarily not Law of Tort: wise tortious , Louisville v. S injuries despite ol. 65:1113 ay prove to :r's working it, the situaiplicated or ormal" and i an excludlere cost of ull informaemployment ight provide "high risk" posure, with ility against women who earing. For their present al problems, rine prohibit ing employer it between a to assertedly trine, as conm full disclolefense under rines renders ; and obliga- resignation was iployment plans, /a. 1974), rev'd, rmative financial of pregnancy-re; reversed on aplid not reach the er obligations to initnal or nonex- en employer and rd. Restatement ding on the jurisdoctrines of con- liability that the ., 493 F.2d 1076, ) 1977] TOXIC WORKPLACES 1141 More importantly, the actions of a parent in wilfully assuming risks of injury would probably not bar the offspring from recovering.131 This area of tort law is largely undeveloped, and it is conceivable that certain theories might protect employers in some instances. At present no such shelter is assured. Conclusion Perhaps most apparent in this analysis is the lack of clarity in scientific understanding and legal doctrine which the judiciary must face in resolving problems of toxic workplace exclusion. The basic frame work, however, is straightforward--differentia] treatment without solid factual support and compelling necessity is violative of federal law. At the least, employers must bear the burden of proving the legitimacy of their actions through appropriately framed affirartative defenses. The satisfaction of achieving equ^Ww'jo^apportunities in a toxic workplace is tempered, of course,-fey thBjra^lBtation that women and men still risk serious disease ap4 infusi fsonrtheir exposure on the job. One might question why/' si energy must be directed toward equal employment wh^n^ihepidf rate result is to subject women workers to increased Iwi^sLiiijury. There are two policy answers. First, women have the right to determine what is in their best interest. The jobsites under analysis here are not necessarily more dangerous than available alternative employ ment--many "women's" workplaces maintain high levels of risk. So long as workers are subject to toxic risks as a matter of course, women should not be the subject of unique protectionist treatment. Second, the concern aroused by "special" treatment of women diverts social energies in an unproductive way. The choice confronting women workers, loss of employment or jeopardy to health, is not unique122 * * * * * * 1096-1100 (5th Cir. 1973), cert, denied, 419 U.S. 1569 (1974) (contributory negligence of the plaintiff is a defense to strict liability where he or she voluntarily and unreasonably proceeds to encounter a known danger). See generally Fleming, Foreword: Compara tive Negligence at Last--By Judicial Choice, 64 Calif. L. Rev. 239 (1976). If certain employcer, are in fact at disproportionately high risk, full disclosure of the hazards of exposure might provide protection for employers from actions under either negligence or strict liability theories. The complexities that such tort analysis would require are beyond the scope of this Comment 122. Unless the parent's actions (informed entry into the hazardous workplace) were imputed to the infant or acted as an intervening cause of injury, the infant would ordinarily not be held accountable for the parent's decision- See, e.g., W. Prosser, Law of Torts 102 (4th ed. 1971) (infant plaintiff is incapable of consenting to other wise tortious injury); Fallow v. Hobbs, 113 Ga. App. 181, 147 S.E.2d 517 (1966), Louisville v. Stuckenborg, 433 S.W,2d 94 (1968) (recovery awarded child for prenatal injuries despite mother's contributory negligence). BFS 005405 1142 CALIFORNIA LAW REVIEW [Vol. 65:1113 to them, but is shared by all workers who Kiri^ employed in toxic environments due to economic necessity^ Espp^m ofone segment of the working force, in the intefesf'W "safety," may act to divert public attention from the hjtftjer=qyestion--the limits to which a society can afford to subject its worjjpre'lo high levels of risk and injury- Pre occupation with the-issue-'of "women's" health in this context serves to confuse the issue, and inhibit creative thinking about long term solutions to the more general problem. i i i I i I i BFS 005406