Document pmM00X4B4rG8w50kknNjLQ0Xw

. .v j Ji-iJpli i;. AI inn Department uf Commoni\y and Iinv i roni.ieMlal Medicine School of M'-die inn tlnivcrsity of Cal i fornia, Irvine, California ; ' -i -.rh'i 1 or-1. i on of 1;hi 1 appreciate the opportunity to participate here in Denver at .this joint meeting of the American Academy of Occupational Medicine and the American Academy of Industrial Hygiene. As a member of the American Academy of Industrial Hygiene, I feel honored to be asked to address this combined meeting. The subject 'natter that we are addressing here at' this meeting, I believe, is a good example of the application of the interrelationship of law and science in an attempt to resolve t employment opportunity in to a developing fetus or w also, I might add, is the interest in both law and industrial health and provides me with my own justifi cation, which I occasionally need, for intermingling the two disciplines. We are dealing with a subject matter which has very little scientific information available for rapid resolution of the issue of insuring a healthy place of employment for protection of employees* reproductive capability. There simply is not a great deal of information related to industrial exposures to physical and chemical stresses and their effect on the reproduction process. Examples of the lack of knowledge in this area continue to appear. A most recent example is the DP.CP (1,2 dibromo-3-chloropropane) case where exposures to this chemical which is used as a fumegant to control nematodes, are alleged to have caused oligospermia and aspermia (sterility).(1) (2) Prior to discussing some of the more specific legal implications related to our subject, I'd like to develop for you, just briefly, the general circum stances that lead us to the existing climate we. find ourselves in relative to occupational safety and health law and equal employment opportunity law each, of which, presents difficulties in extending full protection to women of child bearing capability who work with hazardous substances which may affect the fetus. The beginning of what I consider the new era for occupational safety and health began with the Coal Mine Health and Safety Act of 1969.^The act initially established a standard of 3,0 mg/MJ of respirable coal dust exposure followed BFS 005695 7. 7 three year:. later by requi rim'. ;i 2.0 mg/M ` of icv.pi rable tool dust expo:.me during each r*fi i ft* to which a coni min'-r was exposed. The samplings required under the* Act were to he repented periodical ly based upon the expor.ure levels found in the coal mines. In addition, regulations under the Act required repeated personnel noise evaluations obtained in a similar manner as required under the coal mine respirable dust exposure requirements. The Act also established medical provisions including a compensation schedule for coal miners having identified coal miners pneumoconioses. I'recall my own concern, at the time of implementation of the law, for adequate immediate implementation of the regulations promulgated under the Act. The requirements of the Act, however, left no doubt this was the beginning of a new era in occupational safety and health law sinceno^revious legislation or other mandate had been so demanding^i^err^rSas^^^ ^bupational safety and health matters. A year lSr((iTMj^0^theOcfcupational Safety and Health Act^ was passed and I need not go into all of the implications of that legislation. Everyone here knows its signficance for occupational safety and health. Generally speaking, the Occupational Safety and Health Act multiplied the requirements included in the Coal Mine Health and Safety Act and, of course, multiplied the implications for the health of employees for all industry in the United States. Since the implementation of these two acts, specifically related to worker health, there have been a number of additional pieces of legislation which relate, at least from the standpoint of indicating general mood of our society for.health and safety matters. Some of the legislation includes the Toxic Substances Act^ and the California Carcinogen Act^ to name but a couple. This wave of legislation indicating societies desire for health and safety protection is accompanied by an equally strong surge in health and safety related litigation. Society's interest in responsible action in protecting their health and safety is also of course reflected in judicial decisions. In addition, attorneys are becoming more aware and informed of the occupational health issues which also accounts to some extent for the increasing litigation in health and safety matters. In a recent edition of Trial,^ the National News Magazine published by the Association of Trial Lawyers of America, five out of ten articles comprising the edition related to the discussion of litigation of occupational health matters. Within this framework of societal interest and scientific discovery of health related occupational problems, legal theories and decisions tend to change and the injured or diseased individual is more easily identified and more readily compensated. In reflection, it is only eight short years ago that the Coal Mine Health and Safety Act.was enacted beginning the current emphasis on worker health and safety. BFS 005694 It has just Iks.;, .lie ];ist twelve years tli.'it rni|i. ,ni<Mt ili:.friisiin.*ition remedies a ripen rod; spearheaded hy Title VII of the Civil Rights Act of L%4. Prior to the Civil Rights Act of 1904, with the exception of a few pertinent doctrines attempting employment equality, tiadition in this country resulted in a common law ruLe that unless specifically restrained, individuals were free to act as their will directed. This liberty resulted in great freedom to use and enjoy property, hindered only by nuisance concepts. Historically, under tills legal philosophy, an employer was free to establish the terms and conditions of employment including the rules he desired employaasi <jS follow. He could dis criminate as he wished. . There was^ssefitYalinterference. The commmon law, although, it could^ava^Ui^a^ evolve tort or property concepts to protect employees as economic ajaksocial conditions changed. The courts did not limit employers in their absolute freedom of discrimination. No actionable tort evolved. But for a few exceptions, what was true for the common law yesterday remains true today. Unless such activity is limited by contract or statute, the private employer is free to conduct his affairs without judical interference. (8) But there has been, however, a continuous stream of enacted statues and and opinions. Title VTI of the Civil Rights Act of 1964 as amended by the Equal Employment Opportunity Act of 1972 bans all irrgeularities in compensation on account of sex for persons performing substantially equal work. Executive Order No. 11246 as amended by Executive Order No. 11375 bans discrimination by government contractors on the same grounds as Title VII. These executive orders have been expanded to cover handicapped individuals- under The Rehabilitation Act of 1973 and disabled vetems under the Vietnam Era Veteran Readjustment Act of 1974 iC- 9) In addition to the specific federal statutes and regulations dealing with employment discrimination, there are other federal regulatory statues such as the National Labor Relations Act as amended and the Railway Labor Act that have been interpreted to preclude various aspects of employment discrimination. Many federal agencies have promulgated Equal Enployment Opportunity regulations.^ No federal entity is sacred, as reported on September 5, of this year, a coalition of civil rights groups is attacking otic of the last bastions of job discrimination, the U.S. Congress, group that should jierhaps be the first to eliminate, job discrimination. BFS 005695 in" the federal standard and applying equal employment opportunity principle:; In addition, there is sonic tendency to enlarge the area of protection or the number of protected categories in employment. In the District of Columbia, Regulations under Title 34, employment discrimination is precluded based on race, age, marital status^ personal appearance, matt<^la^pjjj^ ^Litical affiliation. ^ '^^ly^jighl-fght some aspects of the an insight into its more specific amplications in tne occupational satety ana neaitn arena. Section 705 of Title VII of the Civil Rights Act of 1964 which was amended by the Equal Employment Opportunities Act of 1972 states: a) It shall be unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race>color, religion, sex or national origin, or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuals' race, color, religion, sex or national origin. The most obvious form of proscribed discrimination is based on an employment classification expressly made upon a person's sex which adversely affects the status as an employee i.e. men's work v. women's work. Under an express classification an employer may not deny employment or employment opportuntics by imposing one set of rules for women and another set of rules for men - women may not be excluded from jobs-determined to be dangerous, undcrsirnble or unladylike. Weeks v Sou. Bell Tel. 5 Tel. Co. (5th Circuit, 1969) decided that it is impermissible for women as a class to be denied jobs that require lifting of certain weights or performing certain tasks. BFS BBSS 96 Hie defense to express cJn i fie. a ion iclntive to hi ring pol icier. include a bona fide occupation.-]] qualification reasonably necessary to the nonivil operation of that particular husiner.s. There must bo a connection between discriminating, classifications and the job to be performed. Romantic, historic, paternalistic or otherwise stereotype notions in the area of sex discrimination do not fulfill this connection.fvl3l* There are two possible theories on establishing BFOQ. The first, as in the Martin Marietta case is the existence of a conflicting family obligation. If the confliction were demonstrated to be nm'e^relapBSGV^^ob performance for a woman than for a man, ther&^orflcKl^a^^si^/fr extinction in employment. The second approach offered decision indicated that the defense must be limited to job situations that require specific physical characteristics necessarily possessed by one sex. Both defense theories have been used in lower court decisions. One court reasoning that a BFOQ would be established by demonstrating that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved. The burden of proving substantially all members of a class are unable to perform.-', a job is a very formidable task. In Cleveland Bd. of Education v. La Fleur, 414 U.S. 632, under the 14th Amendment, the court struck down a rule disqualifying pregnant teachers from teaching.as being a rule based on an assumption concerning pregnant women that is not "necessarily or universally true;" therefore, each individual case should be considered on its own merits. In reference to this area, a recent 4th U.S. Circuit Court of Appeals case in Virginia ruled that an airline can refuse to let a pregnant stewardess fly on the basis that she could jeopardize the safety of the passengers. In essence under Title III of the Civil Rights Act of 1964, as amended, employees may not take either the pregnancy or the childbearing capability of an employee into consideration upon hiring, training, assigning, promoting or laying off, unless it can be proved that it is needed based upon overwhelming business necessity. The declared congressional purpose and policy of the Occupational Safety and Health Act^ is to assure, as far as possible, every working man and woman in the Nation, safe and healthful working conditions and to preserve our human resources. However, information on allowable levels of exposure to protect BFS 005697 (l. Worm'll in Lhc repioduu. ion singes uf Jilt: or the u-pi m. w.l ion inpnbU l Ly o( nvm jr> not readily available. Traditional allowable levels of exposure to substances in industry have been based upon airborne concentrations of substances which will, protect nearly* all workers - a snail percentage of workers will experience discomfort from some substances at concentration below the allowable level - a still smaller percentage may be affected more seriously by aggravation of a pre-existing condition or bydevelopment of an occupational illness - where human data has been used to establish these criteria it has been based primarily upon the average, healthymale worker. For the most part, the health standards that arc incorporated under OSHA have been established under these guidelines - based on a.healthy, maleiwarker. Generally without`consideration for "women and the developing fetus or childbearing capacity of an employee. The employer currently finds himself in a dilewfarrT^qoal Employment Opportunity regulations require hi tgei^oy^ldisg^iSiately in some instances where there is little or *no iS^i^atii^jydencerhing the work stress and resulting strain on a developing fetus or the general reproductive capability of the employee. The existing legislation provides a very broad basis for reference for bal ancing social regulatory goals. Since science, in this situation, does.not have immediate answers, society and the law has to resolve the conflicts that develop in protecting reproduction and childbearing capability versus employment rights. There are currently no simple solutions. Let's now review some of the more specific legal issues. If an employer were required to obtain information as to the reproductive status of an employee or one seeking employment, it appears based upon Roe v. Wade (19' and Doe v. Bolton the Supreme Court .abortion decisions, that there may be an invasion of privacy issue involved. Although legal reviewers of the decision consider the decision to be extremely vague concerning the constitutional founda tion of the decision, the reviewers consider the decision unusually explicit about issues not directly before the court. The Supreme Court indicated in these cases that although the Constitution does not mention any right of privacy; the right has some extension to activities related to marriage, procreation, contraception, fainily relationships and child rearing and education. In the Roe and Doc decisions, the Supreme-Court determined the right to privacy to be broad enough to encompass a woman's right whether or not to terminate pregnancy. The Court said that the detriment that the state would impose on the pregnant woman by denying her this BFS 005698 7. choice is apparent in reference to a distressed life and future, psychological trauma and accompanying distress associated with an unwanted chi Id...The court goes on to say however that they also recognize the staLes import.'uit interest in safeguarding health, maintaining medical standards and protection of prenatal life. At some point in pregnancy, the states intercsticce^cs sufficiently - . compelling to sustain regula/doiv-Qf ^e(Q&ct^T th^^jpethe abortion decision. Based on this decision the right does not become absolute or unlimited. At some point the state's interest in protectir^health, medical standards and prenatal life becomes dominant over woman's personal interest. IH the Roe and Doe cases,' the court said that the states interest becomes dominant at viability of the fetus or when the fetus is capable of life outside the womb. In the employment situation, however, the states interest in knowing about the reproduction status of women or men may become more dominant prior to viability, since occupational stresses may affect the man or woman prior to conception or the woman at some specific time during the term of pregnancy depending upon the specific stress involved. The question becomes - does the right of privacy protecting the revelation of any information on activities related to marriage, procreation, contraception, etcetra, by the man or woman, as discussed in the Roe and Doe cases apply to an employment inquiry concerning such matter? There appears to be no clear answer to this question. Another area of interest to the employer would be Worker's Compensation, which provides a compulsory and exclusive scheme of employer liability without fault for employees injured or otherwise disabled for such condition arising out of employment and in the course of employment. (O The important question here isq ^t^ia^^intj^nAunW' what conditions, does the fetus of the workin^^^er a third paTty? The significance of the fetus becoming a third party lies in the extent of the potential liability for any irresponsible act impinging on the fetus. Where the law recognizes the fetus as an existing person, in terns of liability for negligence the amount of damages recoverable by the injured is essentially unlimited as opposed to damages to an injured employee under the worker's compensation procedure. The tort law is changing rapidly in this particular area. If a child is bom alive, a child conceived, but not yet bom, is to be deemed an existing person so far as may be necessary for its interest in event of its subsequent birth (23) In nest jurisdictions, a child can recover for injuries caused BFS 005699 o defect at live liirlli, the defect i:; recoverable by the newborn. A couple of jurisdictions have gone further and awarded decisions based on stillbirth if the fetus was vinhle.^2^ It would appear then that if the fetus is not recognized as a person by the law of the defers to the mother who is th it becomes a workers compensation matter. A recent Ohio Supreme Court case decided that an "unconceived" child is not a "person" and is therefore not eligible to sue for damages. The case involved a baby girl born, four years after her RH negative mother was-given an RH positive blood transfusion. The child was bom with severe brain and spinal cord defects Orythroblostosis) and the mother sued the hospital for damages on behalf of her child, which of course, had not been conceived at the time of the blood transfusion. Under this case, it would therefore follow that if an employee were stressed by an agent that subsequently produces a deformed child, the employer is not liable to the child for the damages incurred. (251 In another related area, a recent OSHA based case, Dunn v Brimer, J decided that defendant's unexcused violation of federal OSHA regulations is some evidence of negligence when he is sued in a state court tort action and defendant's liability for OSHA violations extends to and encompasses 3rd persons such as non-employees. We could apply this to a situation concerning a developing fetus. It would appear that a violation of a health standard under OSHA would assist in an action initiated by a subsequently bom child who may have been allegedly damaged due to his parent or parents' employment stress. Another legal concept of interest in reference to this matter is the continued lengthening of the statute of limitations in tort lgitj ^he statue of limitations refers to the time a the occurrence of the injury or ill of the injury :>r illness. In an Illinois Appellate Court decision in Rcnslow v. Mennonite Hospital, June 10, 1976, a cause of action was permitted on behalf of a child bom 8 years after an allegedly negligent blood transfusion given to the infant's mother. The case has gone to the Supreme Court. The decision could have significant implications relative to this subject matter since an abnormality may not be discovered for many years after the industrial exposure. BFS 005700 One final legal vunci'pl alrelatively insignificant but worth meatjon inij js that of outrage and emotional distress which is taking a new direction in tort law. A recent case in Arizona - Ron Munshowcr v. I)r. Robert L. Lock - tiic plaintiff received a $50,000 award for her emotional anguish and for costs of psychiatric treatment as a result of a radiologist informing the pregnant plaintiff that she had been exposed to x-radiation that increased her risk that her child wouldjba horn mqlfefmad-,ynenfcalljv-^efcfrded, or with leukemia and therefore she should ItrabrapguticliaBoJrtifeS) The plaintiff decided not to have her abortion and the award was based on the anxiety and other damage she suffered, concerning the doctor's warnings, although the child was bom without any apparent defects. It was shown that the plaintiff continued to suffer with the knowledge that the baby had been exposed to an increased risk of leukemia or sterility in the future.1- J Under this case a negligent warning of an employee about an exposure that may cause an effect but, in fact, did not cause an effect may result in liability for damages. In addition, I might add just one general consideration. It is expected that the near future will see a broadening of the concept of strict liability concerning chemicals which have not been properly tested and no warning issued concerning their potential health problems. The Toxic Substances Act, of course, will accentuate this kind of duty. The question may arise as to what extent is it reasonable to expect testing to involve the human reporduction process? Should the tough requirements^) encompassing fetal research be reviewed to determine necessity for providing more scientific input for better decision making in protecting our human resources? As I mentioned, I have discussed only some of the considerations. Other issues include: if a woman were to agree to assume the risk and work in an environment where there may be a stress which does, in fact, affect the Subsequent bom child, 1) Should she have the right? 2) Docs her husband have any right in her decision to risk the-^aby's health? 3) Will the child have any rights againsimrtJi^, ^t^?cr,'^|^y^if upon birth there is resulting O* ^ 4} Could she agree to an abortion and continue working? Would she need her husband's approval for an abortion? Itoes QSI1A have the authority to issue guidelines recommending transfer of pregnant workers at no loss in pay or seniority? If transferred and the employee obtains less pay, could she claim discrimination? If she weretransferred and BFS 005701 reimbursed at hoi* < III. pay. level could a 111.111 working l. Hie: s.'iiik; job at loss pay claim discrimination? If special standards were set up for pregnant v;oman - lower than for those who would not be childbearing, could a suit be filed by the woman who had decided to remain childless,on the grounds that the lower standards were arbi^Ri*^y])d^:^iLnl^;9?y? |[})'ITT* iO In summary, in situations where a?Tem|iloyer Has-^W^Ikm&LWility for workroom exposures to stresses which may have an adverse effect on employees or the reproductive capability of employees or the descendants of employees,the best protection lies in 1) keeping informed concerning the scientific implica tions of exposure, 2) providing adequate information concerning the possible adverse effects of exposure to the employees involved, 3) insuring that existing exposure levels of the involved employees are within recognized stand ard for allowable exposure levels and 4) adhering to pertinent complementing guidelines. y. bf BFS 805702 1. Occupational Safety and Health Reporter, Bureau of National Affairs, Vol.7, No. 13, pg. 300 (Aug. 25, 1977) 2. Occupational Safety and Health Reporter, Bureau of National Affairs, Vol.7, No. 16, p. 459 (Sept. 15, 1977) 3. PL 91-173 4. PL .91-596 5. PL 94-469 6. SB-1678 (California) 7. Trial The Magazine of The Trial Lawyers of America, 1976 8. Player, Mack A.: Federal Law of Employment Discrimination, Nest Publishing Co., 1976, pg. 2-3 9. Ross, John F.: New Developments in Equal Employment Opportunity. Practising Law Institu*rte Legal Notes and Viewpoints, Vol.13, No. 12, 1976. 10. Los Angeles Daily Journal, Sept. 5, 1977. 11. Player, supra reference 8, pg. 109 12. Player, supra reference 8, pg. Ill 13. Player, supra reference 8, pg 116-120 14. Phillips V. ?!artin Marietta Corp., 400 U.S. 542, 1971 15. Player, supra reference 8, pgs. 120-122 16. Player, supra reference 8, pg. 121-122 17. Player, supra reference 8, d. 123 IS. The Wall Street Journal, August 2, 1977 ` 19. 410 U.S. 115 20. 410 U.S. 181 21. Ely, The Wages of Crying Wolf: A Comment on Roe V. Wade, 82 Yale L.J. 920, 922 (1973) 22. Continuing Education of the Bar, California Workers' Compensation Practice, 1973 23. The Association of Trial Lawyers of America Newsletter, December, 1976 BFS 0B57Q3 24. Los Angeles Daily .Inunial, May 2, 1077 25. 557 S.W. 2d. 164 26. The Association of Trial Lawyers of America Newsletter, November, 1976 27. Hershey and Miller: Human Corporation, 1976. Aspen Systems 28. From "Existing Legislation", presented at the 'Women in the Workplace" Symposium by the Northern California Section of the American Industrial Hygiene Section of the American Industrial Hygiene Association, March 24-25,1977 BFS 0057Q4