Document gEJnrQpYLbqjj7J3nJKX1ZkKN

Vedder, Price, Kaufman, Kammholz & Day VlOIL ft* DAY MILTON C* DCNtO# STANLEY ft. STRAUSS# RtTER o.masn VAN H.VtOT JOSEPH O* I.UftftCH JAMES R.DENSO GEORGE J. PANTOS MICHAEL J- OAIITLETT ronalo M* green IN NEW YORK Virgil o. oat PETER G. NASH JOSEPH O.LUKSCH RONALD M.GREEN GOO THIRD AVENUE tu 030-55*4NEW YORR.N.Y. 10022 ON. Y. Aft 1750 PENNSYLVANIA AVENUE, N. W. WASHINGTON, D. C, 50006 IN CHICAGO YCOOCft, FftlCE, KAUFMAN A RAHHMOlt lift SOUTH la SALLE STREET CHICAGO# ILLINOIS 0e03 202 298-6445 012 701*2200 Charles r. kaufman* THCOPMlL C. KAMMNQLZ* JOHN H. THOMSON WILLIAM w. MlKlttlllCK HCNRT M.TMOLLCN oraincrd chapman VICTOR L. LEWIS OERNARO J. tCMUH WILLIAM O. PETERSEN PAUL G.CEBhAAOi ROBERT C.CLAUft STANLEY . SLOCK VAN M.VIOT* JOHN J. CASSIOT, J A* ROBERT U tLUOTT, JR. JAMES 5, PETRIE GEORGE P. BLAKE FRANK G. REEDER MICHAEL G. BCEMER JOHN P. JACOBY PAUL r. OLEESON CHARLES H. WIGGINS. JR. THEODORE J. TIERNEY KARL M. DECKER MICHAEL C* RCEO R ,ROY S. KULLftY ichard m zanders CHRISTOPHER J. HORSCH ALLAN C.LARIDUS CHARLES E.MURPHY LEE Y. POLK POBERT J.SYUCKER THOMAS L.O'ORICN C. ROBERT CORDON NELSON C.5CHHIOT JAMES C.FRANC2EK RICHARD C. ROBIN DONALD W. JENKINS MARTIN p. MARTA JOHN A. RCLIAS WILLIAM f. WALSH HINA G. STILLMAN THOMAS C. ABRAM JOHN W. GCRftTNER CHRISTINE M, RHODE PAUL F. RUSSELL Lawrence l.summers THOMAS A.BAKER ROBERT C. CHRISTENSON MICHAEL G. CLEVELAND ARTHUR J. MeGIVERN HENRY S. ALLEN, JR. ALAN M.KORAL OF COUNSEL NORMAN H. PRITCHARD WILLIAM O. CARLES The Honorable Lowell W. Perry Chairman, Equal Employment Opportunity Commission 2401 E Street, N. W. Washington, D. C. 20506 Re: Request For An "Opinion Letter" As To Whether The Exclusion of Women of Childbearing Age From Jobs Resulting In Exposure to Vinyl ChLgrftde Monomer Con stitutes An Unlawfuisf^mF^oyment Practice Within The Meajain^s^Title VII Of The Civil Rigbtg&ipt 3^1964 Dear Mr. Perry: Pursuant tcftSection 713 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-12) and Sections 1601.28-1601.30 of the Commission's Procedural Regulations (29 C.F.R. 1601.28-1601.30), the undersigned counsel, on behalf of the Firestone Plastics Com pany, a Division of the Firestone Tire and Rubber Company, P. 0. Box 699, Pottstown, Pennsylvania, 19464, hereby requests an "opinion letter" from the Commission as to whether the exclusion of women of childbearing age from jobs entailing exposure to vinyl chloride monomer * constitutes an unlawful employment practice with in the meaning of the Act. For the reasons set forth below, and particularly in view of recent clinical evidence suggesting that vinyl chloride--a known cancer causing agent--has a trans placental effect following exposure of the mother to vinyl chloride, and that the fetus is more sensitive to such exposure than an adult. Firestone strongly urges the Commission to issue an opinion express ing its view that a proposed policy which would exclude women of childbearing age from jobs which expose them to vinyl chloride would not, in the circumstances presented, constitute an unlawful employ ment practice. EXHIBIT A BBS 007546 VC doer. Price, Kaufman, Kammholz & Day The Honorable Lowell W. Perry Kay 14, 1976 Pag Two Firestone Plastics Company is engaged in the manufacture of polyvinyl chloride resins (PVC), a vital component of widely used and essential plastics, at two facilities. One facility is located in Pottstown, Pennsylvania, and the other in Perryville, Maryland. Vinyl chloride monomer (VC) is a primary and essential ingredient in the manufacture of PVC. VC is also a carcinogen or cancer-causing agent. Society of Plastics Industries, Inc., v. OSHA, 509 P. 2d 1301, 1306 (2nd Cir. 197s). Employees working in various production and maintenance jobs at Firestone's PVC facilities are exposed to VC in the course of their work. In recognition of the hazards posed by employee exposure to VC, the Occupational Safety and Health Administration of the . , Department of Labor (OSHA) has promulgated and implemented stringent standards governing maximum employee exposure to VC. See 29 C.F.R. 1910.1017. To Firestone's knowledge, OSHA has made no determination as to whether its vinyl chloride standards-- deemed adequate to protect adult employees from the hazards of VC exposure--are also adequate to protect the fetuses of pregnant female workers exposed to VC. Recent scientific data^wKO^jSc^^conclusive, seems to indi cate that VC could pr^d^e^olth stStagenic and teratogenic effects in humans. Se^e*rg\(Spji^tman0, A., et al., "Vinyl Chloride Exposure' and Human ChrSmosiomjfc^Aberrations," Mutation Res. 31:163-168 (1975); Funes-Craviotesyx., at al., "Chromosome Aberrations in Workers Exposed to Vinyl Chloride," Lancet i:459 (1975); Infante, P. F., et al., "Oncogenic and Mutagenic Risks in Communities with Polyvinyl Chloride Facilities," N. Y.-Acad. Sci. (In Press). Thus, female exposure to VC may lead to chromosomal damage which, in turn, may adversely affect the fetuses of such females who subsequently become pregnant. Alternatively, the fetus of a currently pregnant female exposed to VC may be directly and adversely affected. The data suggests that adverse effects may manifest themselves in a variety of ways, such as cancerous tumors, miscarriages, stillbirths and various birth defects. Infante, P. F., supra., Maltoni, C. and Lafemine, 6., "Carcinogenicity Bio-Assays of Vinyl Chloride: Current Results," (August 1974). With regard to the exposure of currently pregnant females, the recent experiments conducted by Drs. Maltoni and Lafemine, which are cited above, strongly suggest that VC passes through the placenta of a pregnant female and, thus, subjects her fetus to BFS 007547 Vedder, Price. Kaufman. Kammholz & Day The Honorable Lowell W. Perry May 14, 1976 Page Three direct VC exposure. See Appendix I hereto.* Moreover, the results of the Maltoni-Lafemine experiments indicate that fetuses are more sensitive to VC exposure than are adults. See Appendix i hereto. Consequently, even where a pregnant female is exposed to VC at levels and for time periods deemed safe for adult workers in accordance with OSHA's health standards, it is entirely possible that the transplacental exposure of the more sensitive fetus may result in tumors, stillbirth, miscarriage, or birth defects. In this regard, it should be emphasized that any plan to remove pregnant females from jobs which entail VC exposure is particularly unsatisfactory because females frequently are unaware of their pregnancy until several weeks after conception. Hence, by the time a female discovers she is pregnant, the damage to her fetus may have already been sustained. In view of this medical data, and particularly the data indicating both the transplacental effect of VC exposure and the more acute sensitivity of fetuses to VC exposure, Drs. Mallov and Falk of the Center for Disease Control, Public Health Service, Department of Health, Education and Welfare, have recommended to Firestone that women of childbearing ag^should not be exposed to VC in. the course of their employmeftt&AAppendices I and II. In conclusion, it shpu^sklbg emphasized that Firestone has maintained a long stand^g=oli:cy of nondiscrimination based inter alia upon sex, and Kb|t^Pirestone has implemented this policy through various mobility and affirmative action plans and programs. MoreoT^sr", Firestone recognizes, as it must, that the * In response to an inquiry by Dr. Lawrence H. Ballou, Medical Director for the Firestone Tire and Rubber Company, Dr. Joseph Mallov of HEW's Public Health Service, Center for Disease Control, sent a letter to Dr. Ballou on February 14, 1975, in which Dr. Mallov discussed the results of Maltoni's experiment and expressed his medical opinion "that women of childbearing age should not be exposed to vinyl chloride." Dr. Mallov's letter is attached hereto as Appendix I. Pursuant to a similar inquiry by Dr. Ballou, Dr. Henry Falk, also of HEW's Center for Disease Control, sent.a letter to Dr. Ballou on March 5, 1975, in which he concurred in the analysis and views expressed by Dr. Mallov. Dr. Falk's letter is attached hereto as Appendix II. BFS 007543 Vedder. Price. Kaufman, Kammholz & Day The Honorable Lowell W. Perry May 14, 1976 Page Four opinion letter requested herein will necessarily preclude a small segment of the female work force from consideration for a limited number of production and maintenance jobs. Never theless, the Commission itself has perceptively recognized "the need to consider particular problems related to sex dis crimination on a case-by-case basis." 29 C.F.R. 1604.1(c). And, in the circumstances of this case. Firestone is firmly con vinced that the medical data tending to indicate the mutagenic and teratogenic effects of VC exposure requires an accomodation of Title VII's nondiscrimination policies to the health and safety needs and considerations of its female employees and their future offspring. Until such tin^^s the medical community conclusively establishes whether In fact, is either mutogenic or teratogenic or b9tft, Mmes-tone believes that the only safe and prudent cQu^e the Company to follow is to pre clude females from i-oba=*i|t^iling VC exposure. Accordingl^Jahd for all the foregoing reasons. Firestone respectfully requests that the Commission issue an opinion letter expressing its view that a policy which would exclude women of childbearing age from jobs which expose them to VC would not con stitute a violation of Title VII of the Civil Rights Act of 1964. Respectfully submitted. Attachments cc: Abner Sibal, Esq. General Counsel Counsel for the Firestone Plastics Company, a Division of the Firestone Tire and Rubber Company BFS 00754S DEPARTMENT OF HEALTH. EDUCATION. AND WELFARE PUDLIC HEALTH SERVICE CENTER FOR DISEASE CONTROL NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH U.S. POST OFFICE AND COURTHOUSE CINCINNATI, OHIO 4S20Z February 14, 1975 Dr, Lawrence H. Ballou Medical Director Firestone Tire and Rubber Company Akron, Ohio 44317 ' .' > ; Dear Dr. Ballou: _ In answer to your questions, I can cite a 1974 experiment by Maltoni (experiment BT5)* in which two groups of 30 female Sprague-Dawley rats were treated with 6000 and 10,000 ppm vinyl chloride monomer respectively for 4 hours daily between the 12th ancLl||h day of pregnancy (i.e. for only one week). Both the adult aninSS^p their offspring were followed for 75 weeks. As of August! a74 lw%ijtaors developed in the adults but 2 subcutaneous angiosarcqmay^eyeltfped in a total of 86 offspring: one id male whose mother was exposed to 10,000 ppm tor developed in a 22 week old female whose 000 ppm for 1 week. These results, though not that vinyl chloride does have a transplacental effect, and that fetuses may be more sensitive to it than are adults. Therefore I would agree that women of child bearing age should not be exposed to vinyl chloride. Sincerely, J, ri-P . Joseph S. Mallov, M.D. Division of Field Studies and Clinical Investigations ^Reference: Maltoni, Cesare and Lefemine, Giuseppe, "Carcinogenicity Bio-Assays of Vinyl Chlor'ide: Current Results" Aug.31 ,1974. cc: J.Stender P.Falk J.Wagoner H.Blejer V" BF5 007550 UCt'tnw wr n t_ wj w . . w . >t . PUPUC HEALTH SERVICE CENTER POP DISEASE CONTROL ATLANTA. CCOnoiA 303J3 trnf- m mi 0R.LH. wnroi t March 5, 1975 'S'' jj;.t-'* yT' ~ Laurence U. Ballou, M.D. Medical Director ** Firestone Tire and Rubber Company * 1200 firestone Parkway 'Akron, Ohio 44317 * -v*-1 y1* !** % ** * -t"n .Y>' vi'.**.*. j i_- '.-v - Dear Dr. Ballou: .bV * T have received your letter concerning the exposure of women of repro ductive age to vinyl chloride, and I have also leceived a copy from Dr. * _j Kollov of a reply to a similar letter. In general, I am in full agreement with Dr. Mailov. I think that Maltoni's data is still the strongest evidence we have at this point. There is, in addition, some experimental data from both Scandinavia and this country suggesting that vinyl chloride .is mutagenic in bacterial test systems, but asrtT^understand the data (and I am not an expert in this field) vinyl^chlJ^dV's'teems to be mildly or moderately mutagenic in the systems ."^Altho^gn there has been considerable publicity surrounding a preliminary stGUjP done by Dr. Infante of the Ohio State Department of He^trff^&pfrc^indng VC mutagenicity in humans, I don't think that the data a5*y&xJenough along at this point to be conlcusive in either direction. 1 %-;31 * ; ." . 1 am not sure why OSHA changed their recommendations between the temporary and permanent standards. No new scientific evidence has come to light which would make me change my opinion that the initial recommendation was appropriate. . . . - V - . ' . ' - ........................................ - . Sincerely yours, ``i.-. .* ' ~*. ;V` .V^ . .. J: / y??' *0.1 , ; >> Hfnryfaik, M.D. ". -v Medical. Epidemiologist :vV`,l/ . -Vj. Cancer and Birth Defects Division ` Bureau of Epidemiology HFalkivj l*Aw. ,kh^ I. /> r& l`.,7:;'T"Ty'| BFS 907551