Document N2v8ppg3eyRqo3VBrJVDgkOEy

Receive;^ C^C2 1978 Organization Resources Counselors, Inc October 19, 1978 [ .efeller Center 12., Avenue of the Americas New York, New York 10036 212-575-7500 Cable Address: ORESCON Telex Number: 12-6544 Memorandum TO; FROM; RE: ORC Equal Opportunity Legal Group Members Victoria J. Smith Title VII Perspective on the OSHA/EEO Conflict During the last Legal Group meeting, we reported to the members on the potential points of conflict between th.e requirements of the Occupational Safety and Health Act afrdr'JfiSfce of Title VII -- a conflict which is most closely associa1SpL'^tV,possible allegations of sex-based discrimination. (Se^r iSemoi^iflum on "Exposure to Hazardous Substances -- Conflict in^EEO and OSHA," May 12, 1978.) Although there has been ipq, ^rfe|t rulemaking or policy statements in this area, there ha*s (4p^^gJ,ea an article by Josephine Anderson Trevathan, co-chair OTpyJpOC's Task Force on Hazardous Substances in the Work Place, whpen discusses the interaction of these two statutes in the employment context. A copy of this article is at tached to this memorandum. Trevathan stresses that, in her opinion, the two laws are not in conflict but are rather mutually supportive, as evidenced in the general duty clause of the OS&H Act which requires employers to provide a safe and healthful workplace for "every man and woman." Trevathan contends that the use of this wording instead of the more usual terms of "employees" or "workers" is a clear indica tion of employer's duty to eliminate hazards for all workers re gardless of protected class membership. Thus, the OS&H Act only establishes a facially neutral employment condition which is com patible with the legislative intent of Title VII. In Trevathan's view; "Unless it can be shown that healthy occupational environ ments for Title VII class members were excluded from the Act, the two statutes must be harmoniously interpreted and enforced if at all possible." To assume otherwise is in direct opposition of Congres tent to extend to protected groups the rigt^t^tip ^e^ci' full employment potential. BF5 005S52 Page 2 While not an official policy statement vb'^ffe(Spinmiss ion, Trevathan's article is nonetheless impoEf^wi ISfeTa pW^jjblfeJ'indication of strate gies that EEOC raigh%-ad|5'p'i ;&tu^)e oen-fh5r cement initiatives. How ever, until Commissty in this area assumes a more ob servable level, emprcryers will still be faced with potentially con flicting statutory requirements in making personnel decisions in volving Title VII and the OS&H Act. BFS 9Q5853 THE TOtmCLLXNG" POINT IN THE HAZAHXXJS WOW<PI/CE FOR THE MHN-VIAELE FETOS: EBOC AND OSHA ocnsideraticns. 1/ Introduction: by Josephine Anderson Trevathan* Title VII of the Civil Rights Act of 1964, as amended in 1972 (Supp. V), 42 U.S.C. S2000-3, et seq., and the Occupational Safety and health Act of 1970 ("the prohibits any employment practice which limits, classifies or excludes a person within its protected class from equal opportunities with other workers or which adversely affects their classification status. Congress made only one exception to the applicability of Title VII and it is known as a bona fide occupational qualification (BPOQ) which permits sex. discrimination where the employee's "genuine ness" is essential to and inherent in the jab to be performed, e.g., an actor, an actress, a wet nurse. 2/ The EEOC 3/ and the courts have construed this exception narrowly, as a rule. * Josephine Anderson Trevathan is a graduate of Howard University School of Law, Washington, DC. Ms. Trevathan is Co-Chairperson of the EEOC's Task Foroe on Hazardous substances in the Work Place. She is an appellate attorney. Office of the General Counsel, Equal finplcyment Opportunity Caimission. Prior to her current employment, Ms. Trevathan has served as an Assistant Attorney General for the State of Ohio and as Counsel for the Minority Business Program of the Greater Cleveland Growth Corporation. 1/ President Carter addressed occupational health hazards in his environmental message to Congress on May 23, 1977 and said: "The presence of toxic chemicals in our environment is one of the grimmest discoveries of the industrial era ... health hazards in the work places cause at least 390,000 new cases of diseases and perhaps as many as 100,000 deaths annually ... [and he pledged] to examine the full range of reforms that might be undertaken to assure adequate ccnpensation for occupationally induced diseases." 2/ See Section 703(a). 3/ But see General Electric Co. v. Gilbert, _____U.S. _____, 97 S. Ct. 401 (1976) and the majority arxl dissenting opinions relative to the Equal Employment Opportunity Caimission's Guidelines on Pregnancy, 29 CFR 1604.01 et seq. BFS 005S54 2- - The narrow exception to the proscription against sex discrimination reflects the intention of Congress to strike at the entire spectrum of disparate treatment between working men and women which operates invidiously to discriminate on the inperrussible basis of sex classification. Ccnpare Grigqs v. Duke Power Co., 401 U.S. 421 (1971). " The Act, administered by the U.S. Department of Labor, Occupational Safety and Health Administration (05HA) , has as its purpose "...to assure so far as possible every working man and woman in the nation safe and healthful working conditions to preserve our human resources ..../ It also contains provision for standards which may require that no employee dealing with toxic materials or harmful physical agents will suffer material impairment ofLteaiith or functional capacity, even if such employee has regular-expqsifie fiEkhMh^&ird dealt with by such standard for the periock'Qf ,|ti& lj^", asotilen Bib) (5) . Cf. Bureau of National Affairs, Inc., Occiro^iUaal^Sarety & Health Reporter, reference file 71:.202. To effect the purpose of the Act, the employer's general duty is to furnish each employee employment and places of employment, free from recognized hazards causing harm, or likely to cause, death or serious physical harm. 5/ OSHA makes the necessary inspections based upon its list of priorities, at the top of which is imminent dangers. This priority inspection includes health hazards if there is a reasonable expectation that exposure to toxic substances of dangerous fumes, dusts, mists or gases are present and such exposure will cause irreversible harm to such a degree as to shorten life or cause a reduction in physical or mental efficiency, even though the resulting ham is not immediately apparent. 6/ However, when OSHA promulgates standards to regulate the level of toxic exposure in the occupational work place, it does not distinguish beti/een the needs of men and wanen workers. It is reported that all OSHA standards are set to preserve the health of the white, Anglo-Saxon, protestant male, approximately 26 to 28 years old. Where women have tried to exercise their Title VII opportunities to perform the more traditional male jobs, and are exposed to known or suspected toxic health hazards, they have run into exclusionary policies which perpetuate past sex discrimination based on protective laws and attitudes. The most oorplex situation arises when a woman '.ho is pregnant or of child bearing age and capability, seeks a job, transfer, or promotion where she will be exposed to hazardous substances at levels which are unhealthy for her as well 4/ 29 U.S.C. Section 651 2(b). 5/ 29 U.S.C. Section 651 5(a). 6/ Protection for Workers in Intninent Danger. Job Health Hazards Series. U.S. Department of Labor. Occupational Safety and Health Administration. April 1975. OSHA 2205. RO BFS 005855 -3- as the embryo, fetus, and, possibly, future offspring. The problem poses enormous health concerns in Title VII enforcement for women. 7/ Applicability of Title VII and the Act: A. Title VII Proliferating scientific research on the development of a health eirbryo, or non-viable fetus, where the mother (or father as discussed infra) suffers occupa tional toxic exposure, and the accompanying exclusionary policies of employers to protect themselves against prenatal tort litigation, has created the newest inpediments to women's opportunities for equal aocess with man to the job market. Many enplcyers now exclude all women; others have policies vhich^iiscriminate* on the basis of fertility or pregnancy^ ^nca^thS^iffirell&SE^tepractices which are sexually discriminatory in thji^tebT^) gh$J^ndit&ais efcpl'byrnent are these: requiring proof from a physician mk tne female applicant or incumbent does not have childbearing capability, discharging incumbent females who beotme pregnant 7/ Beyond the precise issue explored in this article, wanen and minorities are subject to particular carcinogenic susceptibilities which nay or may not be among the health hazards to which they are occupationally exposed. Blade men, historically subjected to the dirtiest and least desirable jobs, have higher rates of cancer of the esophagus, lung, colon-rectum and prostate; stomach cancer is cannon to the Japanese; and white wanen have more breast and endometrial cancer than do blacks but black women have a significantly higher rate of uterine-cervical cancer. Skeptic. May/June 1977. p. 39. Sickle cell anemia is reported only among blades and it is adversely affected by occupational accumulation of blood lead levels. In a statement presented to OSHA's hearings on Proposed New Lead Standards when one witness offered this fact he coupled it with the recommendation that employers should make certain to exclude blad;s from such health hazard exposure. S. Piorelli, M.D. Draft of Presentation circulated by OSHA. Testimony at OSHA's hearings on Proposed New Lead Standards. March 1977. p. 21. Additionally, blacks have a significantly higher susceptibility to hypertension which is adversely affected by lead poisoning. It is also reported that "Government's top health score keeper said that the 'most startling, most important* rise in cancer deaths in the last quarter century occured among black and other non-white adult males ... at least part of the answer lay in the heavy migration of blacks from rural areas into industrialized cities where in higher proportion than whites, they took jobs that exposed them to cancer causing chemicals." Cf. The Washington Post. June 15, 1977. p. A2. 8/ According to the Detroit Free Press (April 15, 1976), a mother of four who was employed at a lead storage battery plant of General Motors of Canada, Ltd., had herself sterilized in order to keep her job. Andrea Hricko, with Melanie Brunt. Vforking for Your Life: A Woman's Guide to Job Health Hazards. 1976. p. A-40. BFS 0Q5S56 -4- v/ithout wage, seniority or job retention rights but whidi benefits are extended to men who are terporarily a./ay from the job for health reasons, transfering pregnant females to healthier occupational surroundings but to lewer paying jobs, requiring females to sign "inferred consent" staterents to establish their assump tion of risk, requiring fertile females to regularly report any irregularity in their menses as well as possibilities of conception, inter alia. (Obviously, seme practices raise the further question of an invasion of privacy.) And where the exposure to hazardous chemicals are known or suspected to have a cazdinogenic or mutagenic effect on the male reproductive system but the exclusionary policy is only directed to women, then the Title VII violation is all the clearer. This has been true particularly in the area of the heavier, dirtier, more physically tiring, late-shift or hazardous (both in terms of physical safety as well as exposure to toxic chemicals) jobs. This arose out of industry's pater nalistic wisdom that it knot-; best what work was suitable for women and what women were best suitable for. "Woman" should not lift heavy materials because she was not as strong as men; 9 / she, perhaps, should not work when she had pre-school age children if it is shown that conflicting jcb and family_ cblj-ga^iions exist and they are demonstrably more releu^t-to(Oct^Err^rKanCT^oHv^>TMn than for a man; 10/ marriage per se cUvesteoJidr mfsjpiQjte she possessed as a single woman when she wanted to continue to perftmtne sane job; ll/ and she should not be subjected to night work, even on a highly speculative and occasional basis, since she might be accosted and harmed in going to and from work. 23/ In Weeks v. Southern Bell Telephone & Telegraph Corpanv, 408 F.2d 228 (5th Cir. 1969), these types of pervasively discriminatory policies were observed memorably by District Court Judge Johnson as follows: "...Title VII rejects just this type of romantic paternalism as unduly Victorian and instead vests individual women with the paver to decide whether or not to take on unrorantic tasks. Men have always had the right to determine whether the incre mental increase in remuneration for strenuous, dangerous, ob noxious , boring or unremantic tasks is worth the candle. The premise of Title VII is that women are now to be on equal footing." (Qrphasis added) Whether such policies were intended irneriously or altruistically for the protection of "woman's" procreative capabilities or slyly for the enhancement of the man's paycheck (since, coincidentally, "male" jobs paid more than the stereo typical "female" jobs) is irrelevant. Ihe good intent or absence of discriminatory 9 / Vfeeks v. Southern Dell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969); Bo.ve v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969). lO'' Phillips v. Martin Marietta Carp., 400 U.S. 542 (1971). 11/ Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1371). Certiorari denied, 404 U.S.' 991. 12/ Weeks v. Southern Bell Telephone & Telegraph Co. , supra. BFS 005857 intent held by those who adopted such policies does not redeem then since sexgendered considerations operate as "built-in headwinds" for women including the subsumed classes of those who are of child bearing age and capability, pregnant or lactating. Ccrpare, Griggs v. Duke Paver Co., supra. Exclusionary policies erode the remedial and humanitarian jurposes of Title VII. Their adoption by employers, for whatever protective reason, means that the economic needs of many ^vomen continue to be unmet solely because of their sex. Most women work because of necessity. An AFL-CIO study by Ann Draper shows that of the 37.8 million women in the labor force in March, 1976, 16 million, or 43% were single, widowed, separated or divorced. The study refutes arguments that a woman's decision to work or not to work is largely voluntary by shoving that 84% of the women in the labor force last year (1976) either supported themselves^^r wefr^roar^cSr tcSfifeJG^fase 1975 income was under $15,000. jY MoreoverjWWO Jb th^/1970jjsj)jfcheLrilirber of working mothers (wemen with children underindrecsed approximately nine-fold and now nurrfoers 13.0 million (approximately), with an increase of 3.7 million in the last decade. 14/ It has been projected that the nunfoer of women of child bearing age will continue to increase and there will be, probably, over 22 million women in 1980 from the age 20 to 44 in the workforce of approximately 41 million women, with over an expected one million births per year if only 5% of the 22 million become pregnant. 15/ Where these women wish to exert their working choices relative to male jebs exposing them to hazardous substances, if fertile or pregnant, it has been proposed that there be a balancing of health and economic implications with the informed decision being node by the woman. 16/ While this is fair and establishes parity between men and woman workers in their choices, it imposes an onus akin to cruel and inhuman punistiment on the woman - an onus and condition of employment not yet plaoed on fertile males. It is Hobson's choice for women to be forced to select on one hand economic survival with their offspring exposed to congenital defect risks or, in the alternative, economic penurity to protect the offspring from toxic occupational exposure. Another recommended resolution of the problem, is to establish maternity benefits which would include wage rate and seniority retention for those women who would be moved to healthier jobs and a guarantee of their former job with those retained benefits upon return to work after the end of pregnancy. 17/ 157 The Wall Street Journal. May 23, 1977. p. 1. 14/ Hricko and Brunt, supra, p. A-10. 15/ Vilma R. Hunt. Testimony at OSHA's lead hearings, supra, pp. 2, 3. (Based on U.S. Department of Commerce, Bureau of the Census, Current Population Reports. Series P-20 Hos. 263 and 269.) (Udry 1975.) 16/ Just as Congress provides financial aid under certain conditions to miners suffering blade lung disease, a plan to implement these goals might be developed within President Carter's concept of "adequate compensation" for occupational health hazards. See f.n. 1, supra. 17/ Catherine East. Testimony at OSHA's le BFS 005S5S \Jiilc acceptable as far as it goes, it is inadequate to assure the health of fertile women (and men) and the development of a health viable fetus, in nany cases, as discussed infra. To exclude these woman, for the one biological characteristic distinguishing the sexes as though it were a BTOQ, mocks the intent of Congress. Indeed, if we do not find a way to eliminate fertility and pregnancy as disqualifications for wenen to freely exercise their Title '/II employment choices, the intent of Congress may evaporate while the fetus takes us bac>: full circle to "grand-pere" paternalism this tine. D. T---h--e---A---c--t- v To date, OSilA has not acknowledged a statutory duty to promulgate standards which protect the occupational health of wenen in general, and certainly not the health of those who are of diildbearing age and ait^i@es or pregnant. The Act requires otherwise. Q \ 0 JOJT O When Congress acted t&^otecrthe health of working men and women, it was aware of toxic chemicals as hazards to lx? controlled or eliminated. It was aware, further, that six years earlier it had acted to give women the opportunity to compete equally with men for employment unless the job was within the BFOQ exception. Significantly, Congress did not revoke or modify that opportunity when it passed the Act or amended Title VII in 1972. The Act reaffirms Title VII's intent to eliminate sex-gendered discrimination particularly where health hazards exist as its purpose clause testifies. The beneficiaries of the legisla tion are deliberately identified with unanfoiguous specificity as "...every ran and woman Except for "every", no modifying adjectives are used. The beneficiaries could have been identified collectively as "erployees" (as Congress does so throughout most of the remainder of the Act) or "workers" or "...every man and woman except wenen who are, or have the capability to become, fertile, gravid or lactating ", but it did not. Thus, giving each word in the phrase its plain and ordinary meaning, all men and all women, including women in their total and unique biological, functioning capacity as child bearers, are protected from occupational health hazards even if their requirements are lower than necessary for other workers. Moreover, the statutory language of the Act in Section 6(b) (5) , supra, at p. 2, conterplates that OSHA standards shall not only protect the status quo health of incumbent workers but the exposure standards must be promulgated in terms of the prevention of material irpairrrent of all workers' physical efficiency and functienal capacity. BFS 0Q5S5 -7- Fertile workers have reproductive capabilities as one of their bodily systens, a fact well known to Congress. Since that system is not exacted from the legisla tion, OSHA's standards rust protect the procreative systems of every man and woman according to the individual functioned, capacity for uhich it was designed..lfi/ This is required for the further reason that the purpose clause states its intention to preserve our human resources. A dual responsibility inheres in that mandate; first, to every incurbent \vpi^^asrinc^i9ualEjami ^fepond, to the general welfare of the pjblic'sTft|l&ith|lihte^t ity those^wari^ra since their off springs are our future human reg&jiSECifesC T>SL>sent that construction, the Act's general provision an unimpaired functional capacities of all workers would be meaningless where they arc fertile. To preserve our human resources requires protective health measures in the workplace on a continuing basis while they are non-viable fetuses and before they became workers. Toxic Health Hazards as they Affect the Non-Viable Fetus; Until there is a "quickening" or the enbryo fetus becomes "viable, it is not a person within the meaning of the 14th Amendment of the U.S. Constitution. It has no rights." Roe v. Wade, 410 U.S. 113, 15C (1973). The enbryo is the fetus in the earliest state of development, but the expression "viable" means the child has reached a stage of development where it can live outside the fsnale body as well as within it. A fetus generally becomes a viable child between the sixth and seventh months, cf. Wendt v. Lillo, 182 F.Sipp. 56 (1960) , even though it may need artificial help. 410 U.S. at p. 160. Thus, "...since the unborn have never been recognized in the let,! as persons in the thole sense cf. 410 U.S. at p. 162, where it enters the workplace with the mother and is exposed to hazardous fumes, dusts, mists, or gases vis-a-vis her host body, even if this is in a state which now permits redress of torts as prenatal injuries, it appears that recovery would be limited to a viable fetus which was viable at the time of injury. See, 410 U.S. at pp. 161, 162. This evidentiary standard plaoes an inordinately diffi cult burden of proof on the plaintiff suing for fetal injury since the necessary research is so oonplex and only beginning to emerge frcri these toxic Pandora Boxes. What is known with certainty, however, is that thousands of toxic agents are spread throughout the various workplaces and a substantial nunber constitute health hazards to the developing enbryo-fetus. Ip / Whether fertile or pregnant wren are allowed their rightful place with men in the workplace harboring health hazards, fertile male workers should be concerned about risks to their future offspring since their toxic exposure represents accumula tive risks. Dr. Kenneth Bridbard reports that these risks to the health of the mother and the ncn-viable fetus exist not only at work but through toxic exposure in the hone as well as the environment. As Dr. John Kinklea said, "The first thing is to get all of us male chauvinist pigs thinking about this problem." Both men made their observations at a 1976 conference on the subject of women who are occupationally exposed to hazardous substances. See fn. , p. 12, infra. RO BFS 005860 It is further knoi/n that the reprcxluctive systems of not only females but males nay be genetically changed or harmed by toxic exposure from mutagenic and carcinogenic. sul>stanoes. 19^ there this occurs, v/ith either the male or female, the development of the ertoryo into a healthy fetus is impaired. Where the male spem or the female egg cells have been permeated by nutagenic chemicals, and any one of the germ cells is genetically changed and subsequently involved in the fertilization process, the nutation may result in death of the fetus before birth^ Spontaneous mis carriage) , 20/ or, if it surviys's,, ^ 1inlOallffccm v/ith a genetic defect in all of its cells, r^arg^LionJteofigerrttal defects, or other physical or mental abnormalitii^M^By result in the child, and, again, if the child survives, the defect nay be pased on to all of its children. Id. ,, there men are exposed to certain health hazards on the jcb, e.rp, lead, vinyl chloride, anesthetic gases, estrogen, inter alia, their reproductive systems nay be affected in ways i/hidv will cause a decrease of male potency, testicular atrophy, alterations of the spermatozoa, an increased nunber of first year deaths of children cx/nceived by them. Id., increased numbers of children with birth defects, 2l/ and sterility. 19/ Hricko and Brunt, supra, Id.; see also Hunt, supra, p. 4. So far, OSHA has designated 14 hazardous substances as carcinogens, including asbestos and vinyl chloride and issued standards on that basis for their permissible levels. In doing so, however, the standards have not been determined v/ith the needs of fertile workers or the nan-viable fetus in mind. 20/ Joana Lanckranjan, M.D. Testimony at Lead Hearings, supra., p. 4. See also, cerrments by Peter Infante, M.D. Society for Occupational and Environmental Health: A Summary on Women and the Workplace., Washington, D.C., June 17-19, 1976., p. 55. Studies reveal that even slightly increased lead absorption can cause damage to sperm cells. 21/ Hricko and Brunt, supra, p. C-10 - C-14. Where males ore exposed to anesthetic gases in the operating roan, their wives have an unusually high nurrber of babies v/ith birth defects. 22/ Wilma R. Hunt, supra, p. 4. Lead exposure can cause sterility but after with drawal normal pregnancy may follow. In the case of vinyl chloride, exposure to it by male workers can cause genetic changes in the spem. Hricko and Brunt, supra, p. 15. As proven with many toxic chemicals to vihich only the male worker is exposed, studies have shcim marked increases of miscarriages and still-birtlis by their wives. Id. OSHA designed vinyl chloride as a suspected carcinogen on the basis of the finding by the Naticnal Institute of Health for Occupational Safety and Health (NIOSH) (pursuant to the studies of Dr. Cesare Maltoni, Institute of Oncology and Tunor Centre, Bologna, Italy) that the offspring of pregnant rats exposed to vinyl chloride developed angiosarcoma of the liver; NIOSH reocmiended "...that no woman who is pregnant or who expects to become pregnant should be erployed directly in vinyl chloride monomer operations", but OSHA did not find the evidence sufficient enough to modify the standard. Vilna R. Hunt. Occupational Health Problems of Pregnant Women. Department of Health, Education and Vfelfare. April 30, 1975. p. 72. An ECOC charge of sex discrimination is pending against an employer using vinyl chloride since women are excluded from v/orking in that division. BF5 005861 -9- Men's occupational exposure to hazardous substances, therefore/ is a demon strably contributing factor to statistics which shot; that one-third of the beds in children's- hospitals are occupied by congenitally defective persons and that congenital disease is the third most cocron cause of death in the newborn. 23/ Nevertheless, not only have the standards not been reduced appropriately to pro tect the healthy functional capacities of fertile rales relative to future human resources, many of whom may be expected to become the workers of the next genera tion, but men are permitted freely to work subject to such exposure while women are excluded. 2V Thus, by the terms and effect of tire exclusion against all women, the policy is sex-gendered. The protective enplqyment prartcx2Tfto'Tfi^S2enefit of women in general, and especially so in'i^afd'ijto^raKid fcr^^XsLwcken, must be viewed as a pretextual policy to cont^t^\J^y discriminate0 in favor of men on the basis of sex, since the health of all men is similarly subject to risks from occupa tional exposure. See General Electric Co. v. Gilbert, U.S. ,97 S.Ct. 401 (1976). : Industry's Exclusionary Policy Rationale: Since accepted research establishes the nexus between toxic occupational exposure to prenatal injuries, industry believes its exclusionary policies are necessary for the protection of the mother and the developing fetus. It has acted at the risk of vulnerability to Title VII charges on the basis that Title VII and the Act are on a collision course. Industry argues that since the health of the developing fetus and the mother may be impaired by toxic jcb exposure, end because it is difficult to monitor the cconencement of pregnancy'' and exercise other enployment procedures to assure healthy fetal progress, the exclusionary policy is morally required. The policy, then, becomes one of health and not sex discrimination. Therefore, the argument continues, when OSHA has established standards for the industry, compliance v/ith those standards is all that is required of the employer even if they are inadequate for the total protection of the pregnant worker, i.e., workers may be justifiably excluded where the levels of toxicity are unsafe." There is no "either-or" conflict between the relevant laws. 23/ Hricko and Brunt, supra, p. B-8. 24/ EEOC has published two decisions based on exclusionary discriminatory practices Because of radiation exposure by pregnant females. In both, it employed the business necessity defence, Robinson v. P. Lorillard Co., 444 F.2d 791 (4th Cir. 1971), requiring a showing that the discriminatory practice is necessary to the safe and efficient operation of the business. It requires, also, a shaving that the policy effectively carries out the business purpose for wiiich it is designed, as well `as proof that no alternative policies`are available which would aocarplish the purpose with a lesser differential impact upon the affected female. Testimony of Constance Dupre on behalf of EEOC at the OSHA Lead Standard Hearing, March 1977. Tr. pp. 4097-98. See also EEOC Decisions 75-072 and 75-005. BFS 005862 -10- Unless it can be sham that healthy occupational environments for Title VII class menbers were excluded from tire Act, the two statutes rust be harmoniously interpreted and enforced if at all possible. It is not difficult to do so. The employer's duty to protect the health of every nan and woman worker is a facially neutral employment condition created by the Aefev /TOSHA's standards and the exclusionary policies of indu^try^hgwe SfcfemeiU^irar^^ct in a v/ay to cause a disparate irpact on wamenf|jj5S.dh is^sp^%er.c;Wrtd. J-^SxnCe corpliance with the Act vn.ll eliminate the problem, j&'^iusine&s neoessity defense can never prevail and Title VII should be enforced without exception. See Robinson v. P. Lorillard Co., 444 F.2d 791 (4th Cir. 1971). Any other interpretation of these discriminatory policies against women makes Title VII irrelevant. It suggests the repeal of Title VII by implication which, of course, violates the "cardinal rule...that repeals by implication are not favored." Posedas v. National City Bank, 296 U.S. 497, 503 (1963). Cf. Morton v. Hancari, 417 U.S. 535 (1974). There is nothing in the Act or its legislative history to show an affirmative intention to effect repeal of Title VII's proscription against sex discrimination. And to so inply is inconsistent with other legislation to similarly benefit women in the employment market, e.cj* the Equal Pay Act of 1963; the Age Discrimination in Employment Act of 1970; and also Executive Order No. 11246. 25/ The Act expresses the same concern; thus, construed together, these lavra reveal a continuing sentiment to uplift uaren tlirough an established legislative pattern. Nor can it be implied that it was the "clear and manifest" intention of Congress to repeal Title VII *s sex proscription since each law prior and subsequent to it have conferred substantial rights on women. Corpare United States v. Borden Co., 308 U.S. 188, 189 (1939). Cf. Morton v. Mancari, supra. On the contrary, this pattern constitutes independent evidence that the legislative intent of the Act cannot new, because of surfacing medical and scientific research, be viewed as the repeal of longstanding remedial Title VII purposes. Therefore, Title VII and the Act tire clearly capable of co-existence. TVny hint of conflict or inplied repeal is inappropriate. When read together, their harmonious interpretation is sirrply that every man and woman, except in the case of a BP3Q, have the equal opportunity to do the same jdb based only on their individual job related qualifications and when any worker chooses a job requiring toxic exposure, such health hazards shall not be maintained at levels to inpair their physical efficiency and functional capacity'. (Even under the Gilbert decision, pregnant women have Title VII protection.) This reconciliation is compatible with each statute and does not make either subservient or repugnant to or exclusive of the other. It establishes the complementary nature between them relative to an employment condition, viz., the health of all workers. 25^ Executive Order No. 11246 prohibits discrimination based on race, color, sex, religion, or national origin by contractors doing business with tire federal govern ment. It is enforced by the U.S. Department of Labor, Office of Contract Ccnpliance. BFS 005863 -11- Tho "Controlling" Point for Protection of the !ton-viable Fetus: Where the pregnant worker is occupationally exposed to toxic substances, the health of the nan-viable fetus must be protected, not because of any inherent or legal right it enjoys as a constitutional person, but merely because protection is the natural, although secondary, benefit afforded by the Act where workers are capable of having children. It is the exercise of ^thifipCafjob^ity which is the source of the protection, not seA/But IpSy qlv^feaning to that functional system in the qualit^^i^^waysj^BS^-rolatdd cjrxohgress, research has established that healthy offsprings require the lowest exposure level for healthy developmental environments. The first trimester of pregnancy is considered generally, as the most critical for healthy fetal development,-26/ the natural consequence of the mother's child bearing functional capacity. 11 With Roe as the frame of reference, the required recognizable and enforceable statutory justification for toxic protection of pregnant workers is evident in the Act and Title VII; similarly, the biological and logical reasons which support it. And, thus, the "controlling" point which triggers the public's general welfare interest in the pregnant worker's health is her initial occupational exposure as soon as conception occurs even if unknown to her. The permissible toxic levels must always be set for the protection of the non-viable fetus. This is so for two reasons. First, this is the only way to assure the integrity of all fertile workers' reproductive systems and fertile women's child bearing functional capacities. 27/ Second, tliis is the only point which will effect the purpose of Title VII to give women non-sex-gendered enploynent choices and simul taneously fulfill the purposes of the Act. To require protection of the childbearing capacity to its natural conclusion, is not to veer from the rule that the non-viable fetus is not a person. The two applications are legally distinguishable, and the determinative selective criteria for the "controlling" points are as well. 7he right of the state to legislate in the private matter of the termination of a pregnancy is not triggered until there is viability since it is only the protection of the potentiality of life which vests an interest in the state in this otherwise private matter. Roe. When Congress however, passed the Act under its pewer to legislate for the general welfare of the people which includes health as a valid public interest, -- Congress did not choose, as states nay do in abortion matters, the protection of life as the absolute, but rather, the quality of present and future life as the absolute. That is, the assurance of health, not the assurance of life. Moreover, the Act triggers standards across the board for the health totality of every worker irrespective of whether conception occurs. But, with the state, conception is necessary as a condition precedent to the possible ripening of a future interest. Also, Congress has said that the healthy functional capacity of the fertile male worker and his future offspring as human resources are desirable goals for the general welfare, but in abortions the father's health is irrelevant to the state's interest. ]2<p Hricko and Brunt, supra, p. B-9. 27/ The acceptable alternative would be to set levels protective of fertile men and wemen and maintain a surveillance program to detect pregnancy within ten days, at which time, equitable procedures would be iirplenented immediately to eliminate the risk to the non-viable fetus while the moth* protected. BFS 005864 i -12- t 'Thus, the rationale of each "controlling" point is predicated on the purpose to be effected in the public interest. In each case the earliest determinative event for the legislated purpose -- protection of Hia^^falth -- was selected according to that point whm-the purposie and^>e nnara|rabadbSGBd. Here, coalescense occurs when health hazards. to occupational In the Act, Congress has provided the legislative brocm to swiftly sweep aside the pretextual considerations vhich exclude pregnant fenales from working in male jobs. OSHA is obligated to use it to fully protect her total health. BFS 005SS5