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Vedder, Price, Kaufman, Kammholz & Day r//Id, s., VIRGIL B. DAY MILTQN C.OENBO* STANLEY R. STRAUSS* PETER G. NASH VAN M. VIOT JOSEPH 0> LUKSCH J^MCS R.DENBO GEORGE J. PANTOS MICHAEL J. BARTLETT RONALD M >GREEN IN NEW YORK VIRGIL B, DAY PETER G.NASH JOSEPH D. LUKSCH RONALD M.GREEN BOO THIRD AVENUE NEW YORK. N. Y. 10022 212 B3B-SS44 * N . Y. BAR 1750 PENNSYLVANIA AVENUE, N. W, WASHINGTON, D. C. 20006 IN CHICAGO VEDOCR, PRICE, KAUFMAN & KAMMH0L2 IIS SOUTH LASALLE STREET CHICAGO, ILLINOIS BOBOS fcV'l*'0 c. \>4- 202 298-6445 May 14, 1976 312 281-2200 CHARLES R. KAUFMAN* THEOPHIL C. KAMMHOL2# JOHN H. THOMSON WILLIAM W. MCKITTRICK HENRY M< THULLEN brainerD chapman VICTOR L. LEWIS BERNARD J. ECHLIM WILLIAM O. PETERSEN PAUL G. GERHARD* ROBERT C.CLAUS STANLEY B* BLOCK VAN H. VIOT* JOHN J. CASSIDY, JR. Robert l. Elliott, jr. JAMES S. PETRIE GEORGE P. BLAKE FRANK G. REEOCR MICHAEL G. BEEMER JOHN P. JACOBY PAUL F. GLEESON Charles h. wiggins. jr, THEODORE J. TIERNEY KARL M.BECKER MICHAEL En REED ROY S. KULL6Y RICHARD H. SANDERS CHRISTOPHER J. HORSCH ALLAN E. LAPIDUS CHARLE5E.MURPHY LEE T. POLK ROBERT J. STUCKER THOMAS L. O'BRIEN E. ROBERT GORDON NELSON C. SCHMIDT JAMES C.FRANCZEK RICHARD C- ROBIN OQNALQ W. JENKINS MARTIN P. MARTA JOHN A. RELIAS WILLIAM F. WALSH NINA G. STILLMAN THOMAS G. ABRAM JOHN W. GERSTNCR CHRISTINE M, RHODE PAUL F. RUSSELL LAWRENCE Li SUMMERS THOMAS A. BAKER ROBERT C. CHRISTENSON MICHAEL G. CLEVELAND ARTHUR J, MCGlVERN HENRY S. ALLEN, JR, ALAN M. KORAL OF COUNSEL NORMAN H. PRITCHARD WILLIAM G, CAPLES 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 Chloride Monomer Con stitutes An Unlawful Employment Practice Within The Meaning of Title VII Of The Civil Rights Act of 1964 Dear Mr. Perry: Pursuant to Section 713 of tha^fcpxil Rights Act of 1964 (42 U.S.C. 2000e~12) and Sections iftpl.28-1601.30 of the Commission's Procedural Regulab&?n% C29 C.F.R. 1601.28-1601.30), the undersigned counsel, on behat% of the Firestone Plastics Com pany, a Division of the FiaserS^ne Tire and Rubber Company, P. 0. Box 699, Pottstowp^J^&iSTsylvania, 19464, hereby requests an "opinion letter" fro^tahe^CcJmmission as to whether the exclusion of women of childbeaOn^-'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. BFS 005201 Vedder, Price,Kaufman, Kammholz & Day The Honorable Lowell W. Perry Kay 14, 1976 Page 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 F. 2d 1301, 1306 (2nd Cir. 1975). 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 fraft the hazards of VC exposure--are also adequate to protect^fc^ ^ptuses of pregnant female workers exposed to VC. Recent scientific data, whiden^t? conclusive, seems to indi cate that VC could produce bofrh feafcagenic and teratogenic effects in humans. See e.g., Ducafeffl&ir^A'r, et al., "Vinyl Chloride Exposure' and Human Chromosome Ab^T^r^jjpns," Mutation Res. 31:163-168 (1975); Funes-Cravioto, F., et 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, G., "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 005202 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 preg nant 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 pregrj^tff^the damage to her fetus may have already been sustained. In view of this meitScalv^data, and particularly the data indicating both the trans^Lacental effect of VC exposure and the more acute sensitiyilg-^jf^fetuses to VC exposure, Drs. Mallov and Falk of the CenterQoi^/Disease Control, Public Health Service, Department of Hj^altbW Education and Welfare, have recommended to Firestone th&Qyi&mn of childbearing age should not be exposed to VC in the coiNtfste'' of their employment. Appendices I and II, In conclusion, it should be emphasized that Firestone has maintained a long standing policy of nondiscrimination based inter alia upon sex, and that Firestone has implemented this policy through various upward mobility and affirmative action plans and programs. Moreover, 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 005203 Vedoer, 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 problem^, related to sex dis crimination on a case-by-case basis. V^fcS^C.F.R. 1604.1(c). And, in the circumstances of this asW^ Wrestone is firmly con 0vinced that the medical data tedira )TO indicate the mutagenic and teratogenic effects of VG=fexposure requires an accomodation of Title VII's nondiscrimination policies to the health and safety needs and consid^afi^ms of its female employees and their future offspririgA^^ntil such time as the medical community conclusively estajfl&Lafags whether or not VC, in fact, is either mutogenic or teratsp^enic or both, Firestone believes that the only safe and prudent course for the Company to follow is to pre clude females from jobs entailing VC exposure. Accordingly, and 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 005204 APPENDIX I DEPARTMENT OF HEALTH. EDUCATION, AND WELFARE PUBLIC HEALTH SERVICE CENTER FOR DISEASE CONTROL 7 :T>;V) fEB 'i- T NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY ANO HEALTH U.s. post office and courthouse CINCINNATI, OHIO 45202 February 14, 1975 W.LS. 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 192$i^periment by Maltoni (experiment BT5)* in which two groups Sprague-Dawley rats were treated with 6000 and 10,000ippm vi^m)ahloride monomer respectively for 4 hours daily between the Ifftn day of pregnancy (i.e. for only one' week). Both the gduW^aniinals and their offspring were followed for 75 weeks. As of AjrfgiSs^^9?4 no tumors developed in the adults but 2 subcutaneous ang^Q^Rtomas developed in a total of 86 offspring: one developed in a 24 w^e^old male whose mother was exposed to 10,000 ppm for 1 week, and the other developed in a 22 week old female whose mother was exposed to 6000 ppm for 1 week. These results, though not conclusive, do suggest 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, Joseph S. Mallov, M.D. Division of Field Studies and Clinical Investigations Reference: Maltoni, Cesare and Lefemine, Giuseppe, "Carcinogenicity Bio-Assays of Vinyl Chloride: Current Results" Aug.31,1974. cc: J.Stender P.Falk J.Wagoner H.Blejer BFS 005205 APPENDIX I DEPARTMENT OF HEALTH. EDUCATION. AND WELFARE PUBLIC HEALTH SERVICE CENTER FOR DISEASE CONTROL NATIONAL INSTITUTE FOR OCCUPATIONAL t SAFETY AND HEALTH u.s. post office and courthouse V*--' 1 CINCINNATI. OHIO 45203 FEB IT'"'5 February 14, 1975 * ` * US. LS. 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 ISiMQKperiment by Maltoni (experiment BT5)* in which two grouas oORwrfert4e Sprague-Dawley rats were treated with 6000 and 10*p0&topm vijjylChloride monomer respectively for 4 hours daily between/j)hL2tn^Arrt! 18th day of pregnancy (i.e. for only one/ week). Bgth/Ellis?:Httu^ff' animals and their offspring were followed for 75 weeks. As^feJ usi8sV71974 no tumors developed in the adults but 2 subcutaneous angiosarcomas developed in a total of 86 offspring: one developed in a 24 week old male whose mother was exposed to 10,000 ppm for 1 week, and the other developed in a 22 week old female whose mother was exposed to 6000 ppm for 1 week. These results, though not conclusive, do suggest 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. . Joseph S. Mallov, M.D. Division of Field Studies and Clinical Investigations Reference: Maltoni, Cesare and Lefemine, Giuseppe, "Carcinogenicity Bio-Assays of Vinyl Chloride: Current Results" Aug.31,1974. cc: J.Stender P.Falk J.Wagoner H.Blejer SF~S 005206 A rvr- c *L'iufi. x RECEIVES D(rAfn WENT OF HEALTH, EDUCATION, AND WELFARE f/,AR 719/5 PUBLIC HEALTH SERVICE CENTER EOfi DISEASE CONTROL ATLANTA, GEORGIA 303J3 HR* L H- ^ ^ _. MIIPHOM' |4<t4l CJiJJll , ,,. March 5, 1975 v i'.Ji, . r Laurence U. Ballou, M.D. Medical Director Firestone Tire and Rubber Company 1200 Firestone Parkway Akron, Ohio 44317 Dear Dr. Ballou: i have received your letter concerning the expo omen oi repro- ductive age to vinyl chloride, and I have also ed a copy from Dr. Mallov of a reply to a similar letter. Ijt gene am in full agreement with Dr. Mallov. I think chat Maltor ia"is still the strongest evidence we have at this point. Tiifert ks, in addition, some experimental data from both Scandinavia and/nii\j$ountry suggesting that vinyl chloride is mutagenic in bacterial -figrat'^yj! terns, but as I understand the data (and I am not an expert in this iSf&i'd) vinyl chloride seems to be mildly or moderately mutagenic in the^systems. Although there has been considerable publicity surrounding a preliminary study done by Dr. Infante of the Ohio State Department of Health concerning VC mutagenicity in humans, I don't think that the data are far enough along at this point to be conlcusive in either direction. I 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. , Sincerely yours, l ,i HFalk:vj , HefnryT'aJLk, M.D. Medical Epidemiologist Cancer and Birth Defects Division Bureau of Epidemiology .: BFS 00520P