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LEXIS®-NEXIS® Academic

July, 1990

Vol. 23, No. 7, HOSPLW Pg. 193

LENGTH: 9128 words

TITLE: Fetal Protection Policies: A Method of Safeguarding Fetuses or a Way of Limiting Women in the Workplace

AUTHOR: Helene Hoffman, Staff, Journal of Health Law. B.A., 1974, University of Wisconsin, Madison; J.D., 1982, DePaul University; LL.M. Cand., 1991, DePaul University College of Law.

TEXT:
I. INTRODUCTION

Health care workers have been among the first to challenge policies directed at excluding women from the workplace on the basis of reproductive health hazards in the workplace. [n1] While workers in some industries, such as the chemical industry, have long faced reproductive health hazards, [n2] only recently have companies instituted fetal protection policies, ostensibly to safeguard the health of fetuses of pregnant employees. These policies exclude most, if not all, women of child-bearing age from employment and have far reaching effects. Consequently, 100,000 jobs are already closed off to women, [n3] and eventually this number may climb to twenty million. [n4] It is understandable, then, that lawsuits involving fetal protection policies have been described as the most important sex-discrimination cases since 1964. [n5]

This article will examine fetal protection plans which many claim constitute sex discrimination. Part I will analyze the plans and the litigation these plans have engendered. Part II will examine policy issues and scientific evidence concerning the plans, and Part III will look at liability and causation issues, and discuss possible alternatives to fetal protection plans. In addition, this article will discuss a novel alternative to fetal protection policies in the lead industry -- the use of chelation therapy, which is a viable treatment for lead poisoning. This article will primarily focus on the lead industry, and on one case, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, United Auto Workers, v. Johnson Controls, Inc., [n6] in which the U.S. Supreme Court has granted certiorari, this being the first time that the court has taken the opportunity to rule on a fetal protection policy matter. [n7]

II. FETAL PROTECTION POLICIES AND LITIGATION

A. Reproductive Hazards and the Background of Fetal Protection Policies

Scientists have been aware of the dangerous effects of lead for centuries. [n8] Ancient Greek historians wrote about it, and there are reports from late nineteenth-century Britain that women pottery workers most often were sterile, or gave birth to infants who were either stillborn or died within a year. [n9] Currently in the United States lead is used in myriad industries, including automobile production, battery manufacturing and the paint, glass and printing industries. [n10] It is estimated that over 1.6 million workers are exposed to lead, [n11] yet until the 1970's very few of these workers were women. [n12] Some legal scholars maintain that this was due to the fact that most jobs in the chemical industries, which include the lead industry, are good-paying blue-collar jobs. [n13]

It was only after these businesses began hiring more women that they began instituting fetal protection policies in the late 1970's. [n14] These policies generally exclude all women of childbearing age from employment. The employers claim they are forced to do this to prevent women from exposing their fetuses to reproductive hazards in the workplace. However, many female workers affected by these policies have filed complaints against their employers alleging sex discrimination.

B. An Overview of Title VII

Plaintiffs in these cases assert that the defendants have violated Title VII of the Civil Rights Act of 1964, which forbids sex discrimination in employment. [n15] In addition, in 1978, Congress passed the Pregnancy Discrimination Act, [n16] which prohibits employers from discriminating against pregnant women. Many commentators feel that this Act also forbids sex discrimination against women based on their ability to become pregnant, and therefore, applies to women affected by fetal protection policies. [n17]

There are two basic types of Title VII cases. The first type involves disparate treatment, meaning that the employer intended to discriminate. [n18] In this case, the employer has a valid defense if it can be shown that the decision not to hire women constitutes a bona fide occupational qualification (BFOQ), a valid, nondiscriminatory reason for the decision. [n19]

While fetal protection cases fall within the first classification, i.e. disparate treatment, courts have erroneously characterized them as cases of disparate impact. This second kind of case involves a situation where the employer has not intended to discriminate, but an employment policy affects one group more than another. This constitutes disparate impact. In these cases the employer can defend itself by proving its policy was instituted because of business necessity. [n20] The test is whether there exists an overriding legitimate business purpose such that the practice is necessary for the safe and efficient operation of the business. [n21]

C. Fetal Harms and Title VII

Prior to a review of the individual fetal protection policy cases themselves, it is important to understand the possible scientific effects on fetuses due to prenatal exposure to toxins in the workplace. The employer usually relies on proof of these effects to help establish the business necessity defense, while the plaintiff uses it to show the defendant company is practicing illegal sex discrimination. [n22]

Fetal toxins have different effects. One type, called a "fetotoxin" has the same effects on the fetus as it does on adults. [n23] Another kind, the transplacental carcinogen, causes fetuses exposed during pregnancy to eventually develop cancer. DES is the only agent known to have this effect. [n24] A third type, a teratogen, which originates from the Greek word for "monster," [n25] can cause a miscarriage or deform the growing fetus. A teratogen can stem from exposure of the parents before pregnancy, to the mother during pregnancy, or by direct exposure of the fetus itself. [n26]

Mutagens are yet another potential harm to the fetus. They alter chromosomes, harming ova in women and sperm in men. If these changes take place before conception, the embryonic cells can all be affected, causing stillbirth, miscarriage or birth defects. Also, adult males exposed to mutagens can suffer sterility and other serious difficulties. In addition, a problem unique to mutations is that they can lie dormant and later affect future generations. [n27]

In fetal protection policy cases, the employer often argues that because the workplace toxin is a teratogen or transplacental carcinogen, it could cause fetal deformities in pregnant women employees. The employer often invokes the business necessity defense, saying it must protect the fetus. The women workers, on the other hand, claim that the agent is not a teratogen and therefore cannot harm the fetus. Alternatively, they could claim the agent does not harm at the level of exposure present in their particular workplace, and that, therefore the fetal protection policy is unnecessary. Another possible argument may be that the chemical is a mutagen, and could therefore injure the offspring of men as well as women. If the latter is the case, then the company is violating Title VII by only including women in its fetal protection policy. [n28]

Two types of fetal protection policy cases have arisen. One kind of policy excludes only pregnant women workers, and the other bars all women workers of child bearing age from employment.

D. Fetal Protection Policy Cases Which Exclude Only Pregnant Women

There are only two appellate court cases concerning policies specifically excluding pregnant women. In Zuniga v. Kleberg County Hospital, [n29] a hospital fired an x-ray technician after discovering that she was pregnant, and she, in turn, sued her former employer for violating Title VII. In its defense the hospital claimed that its need to protect fetuses from radiation and its fear of lawsuits by deformed children constituted a valid business necessity defense to the Title VII action. [n30] The Fifth Circuit disagreed, noting that if the employer has an alternative, less discriminatory method of achieving its business purpose then it cannot meet the business necessity defense. [n31] In this case the employer had the alternative of granting the plaintiff a leave of absence.

The Zuniga court did not rule on whether the radiation in question put fetuses at risk, or whether the employer's fear of litigation constituted a business necessity defense. However, in dicta, the court mentioned that this defense could be met if the employer showed that its discrimination was "necessary to the safe and efficient operation of the business." [n32] A company might argue that large tort judgments would substantially interfere with its operations, justifying its fetal protection policy. [n33]

Hayes v. Shelby Memorial Hospital [n34] contained the same set of facts as Zuniga. The Eleventh Circuit analyzed the defendant hospital's dismissal of its pregnant employee both as a disparate treatment and as a disparate impact case, and held that the employer must prove: 1) existence of a substantial risk of harm to the fetus of female employees resulting from the exposure to toxic hazards in the workplace, either during pregnancy or while a woman was fertile, and 2) that the hazard endangered fertile or pregnant women, but not men. [n35]

In addition, the court identified the type of scientific evidence required of an employer. Objective expert evidence must be provided; however, the employer need not prove there is a general consensus in the scientific community on the effects of these hazards. Instead, it must be shown that a body of opinion believes that significant risk exists, upon which an informed employer could not resonsibly fail to act. [n36]

As in Zuniga, the Hayes court found the hospital failed to consider alternative placement of the plaintiff. [n37] In addition, the court found that the plaintiff's radiation badges demonstrated that she had not been exposed to radiation levels which would have harmed her fetus. [n38]

E. Fetal Protection Policy Cases Which Exclude All Women of Child Bearing Age

There have been five major cases dealing with fetal protection policies which have excluded all women of child bearing age.

Doerr v. B. F. Goodrich Co. [n39]

In Doerr, the defendant manufacturer transferred all women who worked with vinyl chloride to other units. This resulted in the reassignment of the plaintiff to an entry-level position. Subsequently, the plaintiff employee petitioned the court for an injunction which would force her employer to return her to the previous position. The court ruled against plaintiff, finding that she did not meet the stringent requirements for injunctive relief. [n40] The court also noted that there was a "possibility" of future liability of the company if one of its female employees gave birth to a deformed child due to the mother's exposure to vinyl chloride causing placental carcinogenesis. [n41]

The plaintiff had submitted evidence that vinyl chloride also caused mutagenesis, and could thereby harm the progeny of male workers. The plaintiff argued that the company's fetal protection policy unduly extended only to women, constituting sex discrimination. [n42] The court stated that the "comparable risks" between fetal harm due to the pregnant woman's exposure to vinyl chloride and the father's exposure were not clear, but if it could be shown that the woman's exposure is a "substantially greater" hazard, then the fetal protection policy might not violate Title VII. [n43]

Wright v. Olin [n44]

In 1982, the Fourth Circuit decided a case involving a defendant which had instituted a policy barring all women between the ages of five and sixty-three from working in jobs involving abortifacient or teratogenic chemicals. The policy applied across the board, unless company physicians decided that the woman was sterile and would not suffer any ill effects from exposure to these agents. The policy did not exclude male workers, but the company warned them about the hazards. [n45]

The Fourth Circuit held that the defendant's policy might constitute a business necessity defense. [n46] The court maintained that the safety of fetuses could be considered a business necessity, analogizing to cases holding that discrimination due to a concern for the safety of customers could constitute a business necessity. [n47]

The Fourth Circuit stated that if the defendant met the business necessity defense, the plaintiff could rebut by demonstrating that there existed "acceptable alternative policies or practices." [n48] If the court found that the fetal protection policy constituted disparate treatment, then the court would grant the plaintiffs full remedies, but if it found only that the policy was overinclusive, the remedy would be an acceptable alternative practice. [n49]

Olin was remanded, and the district court held that the policy met the business necessity defense. [n50] The court reasoned that expert testimony demonstrated considerable scientific opinion existed to indicate agents used at Olin's plant could act as fetotoxins or teratogens by way of the mother's exposure to the chemicals. [n51] The court found that paternal exposure amounted to a slight or "theoretical" fetal risk. [n52]

Oil, Chemical and Atomic Workers International Union v. American Cyanamid Co. [n53]

In the only fetal protection case not involving Title VII, plaintiffs contended that defendant's fetal protection policy was a violation of the general duty clause of the Occupational Safety and Health Act (OSHA). [n54] In January 1978, the company notified its employees that it would institute a policy banning all women between the ages of sixteen and fifty from working in departments where contact with chemicals were hazardous to the fetus, claiming that the plant contained "hundreds" of such chemicals. [n55] Only women who could provide medical documentation that they had been sterilized could remain in these units. [n56]

Before final implementation of the policy, the company modified the parameters of the policy to include only women working in the inorganic pigments department where employees were exposed to lead. [n57] Five women workers in this department did undergo sterilization. Two female employees chose not to be sterilized and were subsequently re-assigned to lower paying positions in other parts of the plant. [n58]

OSHA issued a citation against Cyanamid in 1979, charging that it had violated OSHA's general duty clause, which provides that an employer must "furnish to 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." [n59] OSHA contended that the fetal protection policy breached this clause by forcing female employees to be sterilized if they wanted to remain working in departments where they would come into contact with toxins. [n60] This ruling was eventually overturned on administrative appeal, the Commission finding that sterilization does not constitute a hazard, which under OSHA, is a work-related "process or material" which causes injury or disease. [n61]

The D.C. Circuit upheld the Commission's decision, finding that the general duty clause applied to the physical condition of a worksite, [n62] but not to this policy. The court reasoned that the choice to be sterilized arises out of "economic and social factors which operate primarily outside the workplace." [n63] The court also found that defendant could not reduce the lead exposure levels so that fetuses would not be harmed. [n64]

F. The Johnson Cases

Two very important cases have been brought against Johnson Controls, Inc. The first, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Johnson Controls, Inc., [n65] a Seventh Circuit decision, is the most recent federal appellate court ruling on a fetal protection policy, and is the first case of this kind to be heard by the Supreme Court. [n66] The second case, Johnson Controls Inc., v. California Fair Employment and Fair Housing Commission, [n67] a 1990 ruling by a California Appellate Court, is the first time a court found a fetal protection policy constituted sex discrimination. [n68]

The Johnson Company began its current fetal protection policy in 1982. It excluded all women who could not document sterility from working in certain positions in the battery manufacturing division, where workers were exposed to lead. [n69] The policy banned women from positions in these worksites, and prohibited their employment in any job which could eventually lead to these positions through promotion. Female employees who were already working in these units in 1982 could remain there if they could maintain their blood lead levels below 30ug/dl, otherwise the company would re-assign them to other work areas. [n70]

The Seventh Circuit Decision

In the first case involving Johnson, the unions representing the employees filed suit, claiming that Johnson's policy violated Title VII. The district court granted summary judgment to the defendant [n71] and the unions appealed.

The Seventh Circuit followed the reasoning adopted by the Fourth and Eleventh Circuits, [n72] and ruled that an employer in a fetal protection policy case could use the business necessity defense. [n73] Using the elements of the business necessity defense formulated in Hayes and Olin, [n74] the court maintained: (1) the defendant need not show that there is a "general consensus" in the scientific community that a serious risk to a potential fetus exists; and (2) that the harm applies only to fertile women, not men. [n75] According to the court, the first component of the business necessity defense places the burden of proof on the plaintiff and forces her to prove a negative. The plaintiff must prove that the employer cannot demonstrate that a considerable scientific opinion supports a belief that a risk exists, such that an informed employer would have to assume the opinion was correct. [n76] The first prong also includes a showing that a substantial risk of harm to the fetus or "potential offspring" from the mother's exposure to toxins exists either during or before pregnancy. No material issue of fact as to this first element existed in Johnson, because both parties agreed this was the case at the worksites in question. [n77]

In analyzing the first prong of the test, the court reviewed the scientific evidence submitted by the defendant. Defendant's evidence focused on harm to a potential fetus, noting that once lead enters a pregnant woman's bloodstream it crosses the placenta, and the fetus is exposed to its effects. [n78] According to the defendant, the fetus can suffer premature delivery, stillbirth, and low birth weight, [n79] even if the mother's lead exposure is below 30 ug/dl. [n80] This exposure can also retard the child's mental development, causing learning problems and hyperactivity. [n81] The court found that often these effects are irreversible. [n82]

The court placed great weight on the fact that before the defendant instituted its fetal protection policy at least six of its women employees, who had had blood lead levels of more than 30 ug/dl, became pregnant. [n83] One of them gave birth to a child who became hyperactive, and the company doctor attributed this condition to the mother's prior workplace exposure to lead. [n84]

The court held that levels of blood lead exposure as low as 12 ug/dl could damage the fetus, [n85] and that Johnson could not reduce the exposure levels in its battery manufacturing worksites to the point where they would not harm a potential fetus. [n86]

The Seventh Circuit also concluded that Johnson's policy was not overly broad in banning all women from the workplace, as opposed to only excluding those who knew they were pregnant. This is because after contact with lead, even after the person is no longer exposed, it takes a period of time before the individual's blood lead level is reduced. [n87] The court reasoned that a female worker could thereby unknowingly endanger her fetus by exposure to lead during the very beginning of pregnancy, before she could determine that she was pregnant. [n88]

The court also reviewed defendant's scientific evidence when it analyzed the second requirement of the business necessity defense, i.e. that the reproductive hazard affects only fertile or pregnant women, but not men. The defendant maintained that plaintiff's evidence, demonstrating lead as a mutagen which poses a harm to the offspring of male workers, was of little weight since it consisted only of animal studies. The court agreed and ruled that there was no material issue of fact as to this second element. [n89]

Although the court addressed the matter of acceptable alternatives to the fetal protection policy, it found the plaintiff had not preserved this issue for appeal. [n90] The court, nevertheless, found no other options available to the defendant. [n91]

The California Decision

In a February 1990 decision, a California Court of Appeals held that an employer would have to show that its policy met the requirements of a BFOQ defense rather than those of a business necessity defense. [n92] Johnson had denied employment to a female applicant because she did not present evidence of sterility. The California Fair Employment and Housing Commission found that fetal protection policy constituted sex discrimination, and that the company's refusal to hire women was not based on a BFOQ. The Commission held that Johnson could no longer employ the policy, and had to hire the complainant. [n93] The company sought a writ of mandamus, alleging the Commission should have applied the business necessity standard. The trial court found the Commission erred as a matter of law, and remanded the case, ordering the Commission to review the case under the business necessity defense and determine whether the company could use any alternative policies. [n94] The Commission appealed.

The court of appeals upheld the Commission's findings on the basis of BFOQ. The court required the employer to prove it had reason to believe all or almost all women would not be able to "safely and efficiently" perform the job duties in question. [n95] The court decided that the policy was not a BFOQ. [n96] First, it found scientific evidence indicated that males exposed to lead ran a risk of harming their offspring, [n97] citing OSHA findings that lead is a reproductive hazard to men as well as women. [n98] Next, the court held there was no scientific basis for the belief that the exposure to lead by female workers, at levels found in defendant's plant, would harm their fetuses. The only study which demonstrated such a risk occurred when the employees had blood lead levels of 50-70 ug/ml, much higher than the level of 30 ug/ml cited at the Johnson plant. [n99] The court discounted the company's argument that it had to exclude all women from employment because it believed that fetal health was most jeopardized in the earliest stage of pregnancy. The court cited experts who found that lead does not cross the placenta until later in the pregnancy. [n100]

III. POLICY ISSUES AND SCIENTIFIC EVIDENCE CONCERNING FETAL PROTECTION PLANS

A. Policy Issues and Fetal Protection Plans

If most courts continue to approve industries' use of fetal protection policies, then eventually twenty million jobs may be closed off to women. [n101] Many women work in blue-collar jobs because salaries are higher. [n102] In many cases, it has been argued, women's other employment prospects amount to "economically coerced sterilization." [n103]

On the other hand, if a fetal protection policy results in a loss of employment, how well do women fare, especially if they are pregnant or already have children Women, faced with unemployment, also lose their employment benefits including health insurance. The resultant risks to their fetuses and living children may be far worse than they would have faced at their former workplace. [n104]

Fetal protection plans are another scheme in a pattern of policies which, over the last century, have limited women's opportunities in the workforce. [n105] Many of these policies have been codified, resulting in a limit to the number of hours women can work, [n106] or the amount of weight they can lift. [n107] These laws serve to eliminate women from good-paying jobs. [n108] Unlike current views on fetal protection policies, the courts have in recent times held that these "protective laws" are a violation of Title VII. [n109] Much of this protective legislation was passed because females were viewed as the "weaker sex" or because they could bear children. [n110] The fact that employers view women as marginal workers, especially in traditional male jobs, also has supported protective legislation. [n111] Pregnant women are perceived as even more marginal than other women. [n112] Another policy highlighted here is the battle between the rights of the fetus vs. the rights of the woman. [n113] When an employer implements a fetal protection policy, the rights of the woman often are overridden by concern for the rights of the fetus. [n114] Employers are seemingly elevating fetal rights, notwithstanding the Supreme Court decision in Roe v. Wade, [n115] which stated that the fetus was not a person, but only a potential person, and that a woman's right to privacy took precedence. [n116] However, most of the fetal protection policy court decisions have continued the trend of placing women's rights below fetal rights.

In contrast, where the rights of male workers are pitted against those of the fetus, the rights of the men almost always prevail. [n117] When studies demonstrated that vinyl chloride was a mutagen, causing reproductive problems in male workers, men were not excluded from the workplace. [n118] Similarly, when the pesticide DBCP was found to be the cause of infertility in men exposed to it, instead of implementing a fetal protection policy excluding male workers, the pesticide was banned. [n119]

Due to the fact that industry does not accord the fetus rights superior to those retained by men, it is important to inquire whether companies really care about the fetus, or whether their professed concern is just a guise to keep women out. If fetuses and children were the primary concerns, industry leaders would not fire women who do not choose to be sterilized. [n120] These companies would instead ban smoking on job sites, and provide educational seminars and information on pregnancy and well baby care. [n121] Industry would also investigate the reproductive health hazards posed to men, who comprise the majority of the workforce in these jobs. [n122]

On the other hand, there are many industries dominated by women where the workers are exposed to reproductive hazards, yet employers in these industries have never instituted fetal protection policies. [n123] Some examples include women lab technicians who often come into contact with benzene and other hazardous chemicals, [n124] and surgical nurses who are exposed to anesthetic gases, whose rate of birth defects is three times higher than the average. [n125] Even secretaries and other workers who labor in front of word processing screens suffer high rates of problem pregnancies. [n126] One commentator suggests that employers may utilize this double standard in implementing fetal protection policies in order to fulfill their need for women to be employed in lower paying professions. [n127] Employers realize that if women were banned from low-paying jobs due to fetal protection policies, it would be difficult to replace them. Male workers, who generally can obtain better paying jobs than women, may not seek the positions vacated by the women banned by the policy, leaving the employer with no workers.

Two reasons have been suggested for employer implementation of fetal protection policies. The first suggests the policies are no more than "liability prevention programs," designed to calm employer's worries about tort lawsuits from the child deformed as a result of the mother's job place exposure to toxins. [n128] Additionally, industry often utilizes these fetal protection policies to divert attention away from occupational hazards as a whole. [n129]

Another policy issue related to fetal protection plans concerns employer's stereotyped notions about women and pregnancy. [n130] In barring all fertile women from employment, companies are demonstrating their thought that because women are able to bear children, they will. [n131] This ignores the fact that women now are producing fewer children than they have in the past. [n132] In fact, each year less than 9 percent of all employed women are pregnant. [n133] Further, women over the age of thirty have a birth rate of 2 percent. [n134] By the age of thirty-five, 95 percent of all women have completed their families, [n135] and the annual pregnancy rate for working women between the ages of forty-five and forty-nine is only one in 5000. [n136] Therefore, fetal protection policies have been overinclusive in banning all women of "child bearing age." [n137]

B. Scientific Evidence and Fetal Protection Policies

It is important to examine the scientific evidence concerning fetal protection policies as it relates to the requirements of the business necessity defense. The majority of courts which have ruled on fetal protection policies in Title VII cases have decreed that the defendant must meet the requirements of this defense in order to prove that a protective policy does not constitute sex discrimination.

The scientific evidence examined here will be focused on the lead industry because of the pending Johnson case. It will be argued that there is not sufficient evidence for the defendant to meet the business necessity defense, and that the fetal protection policy in question violates Title VII.

1. Is there a Substantial Risk of Harm to the Fetus or Potential Offspring?

A requisite to a plaintiff's proving a defendant cannot meet the business necessity defense is a showing that the defendant is unable to demonstrate "that there is a substantial risk of harm to the fetus or potential offspring of women employees from the women's exposure, either during pregnancy or while fertile, to toxic hazards in the workplace." [n138] In addition, it must be shown that the defendant is wrong in asserting that there is considerable scientific opinion acknowledging the existence of the risk. [n139] However, the plaintiff does not have to prove that the scientific community holds a "general consensus" as to the effects of these risks. [n140]

Industries which utilize fetal protection policies may run into difficulties finding scientific research to justify their exclusionary provisions. Some experts assert that there simply isn't enough research on reproductive hazards in the workplace. [n141] Others report the difficulties in obtaining epidemiological data in this area. [n142] -

In the Johnson cases, it is clear that the plaintiff demonstrated the company failed to demonstrate that its level of lead exposure produced a substantial risk of harm to any fetus or potential offspring of a women working with lead. [n143] The evidence which defendant submitted in the Seventh Circuit case does not prove that a substantial risk of harm exists. The only scientific report the company cited was the Center for Disease Control study which proposed that umbilical cord blood lead levels be no higher than 25 ug/dl. [n144] The only other scientific evidence that Johnson put forth was expert testimony declaring that "low levels" of lead exposure can cause harm to a fetus. [n145]

By far, the most persuasive piece of evidence, which the defendant lacks, is a showing that there have actually been children of women workers who were injured as a result of their mothers' exposure to lead. One of defendant's experts testified that, as a physician, he had seen more than 30,000 workers who had been exposed to lead, many in the units covered by the fetal protection policy. Yet he could only think of one whom he felt gave birth to a child who was impaired by hyperactivity. [n146]

There is a very logical reason for the fact that the defendant's expert had seen only one case in all his years of medical practice: there has been almost no reporting of any cases of congenital lead poisoning in recent decades. [n147] In addition, many experts assert that the risk threshold is the same for the adult as it is for the fetus. [n148]

Another issue in the Johnson cases is the defendant's allegation that it had to bar not only those who acknowledged they were pregnant, but all fertile women from employment. Most of the defendant's experts argued that lead exposure could endanger a fetus in the earliest stage of pregnancy, even before the worker knew of the pregnancy. [n149] Other authorities believe the opposite; these experts maintain that a newly-pregnant woman can be exposed to lead levels similar to those at the Johnson units and not pose any harm to the fetus. [n150] However, scientists also disagree on the amount of time lead remains in an individual's body once that person is no longer exposed to it. [n151] If the court follows the experts who report that substantial hazards of lead occur during the second or third trimester, the woman may be able to prevent the hazard by obtaining a transfer or a leave, with enough time for her body to release the lead before that trimester begins. [n152]

Another major issue is Johnson's contention that lead exposure in its plant may endanger the fetus and this risk causes permanent harm. [n153] Although this allegation has not been addressed by the plaintiff or by legal scholars who have commented on fetal protection policies, there are many scientific studies demonstrating successful treatment for lead poisoning. For the purposes of this Article, these studies can be divided into two categories, one where pregnant women are treated, and the other which involves the treatment of newborns or infants who were possibly exposed to lead while in their mothers' wombs.

Lead poisoning in very early stages is reversible, and a complete recovery is possible. [n154] One physician who has treated pregnant women for lead exposure remarked that there are almost no reports of mass exposure of pregnant women to lead poisoning. [n155] Also, there have been few reported cases of infants who suffered lead poisoning because of their mothers' exposure during pregnancy. [n156] Therefore, the reports on fetal lead poisoning are at best anecdotal in nature. [n157]

Chelation treatment has been used to treat childhood lead poisoning quite often, and has been termed "life-saving." [n158] Studies have demonstrated successful treatment of infants who had been exposed to lead in the womb. [n159] Other studies have also demonstrated that young infants can be cured of lead poisoning, [n160] no matter what the cause. [n161] One study found that children who had high blood lead levels and subsequently underwent chelation therapy had IQs in the same range as children who had much lower blood lead levels. [n162]

These studies demonstrate that many scientists do not believe that congenital lead poisoning is permanent and irreversible. [n163] Pregnant women workers can be monitored, and if signs of lead poisoning appear, adequate treatment may be available for the woman, as well as the fetus. This monitoring can be continued after the woman has given birth; the infant can be monitored for signs of lead poisoning and treatment can be administered, if necessary.

This analysis suggests that the plaintiff can prove that Johnson does not meet the first requirement of the business necessity defense because the company is not able to demonstrate that there is a substantial risk of harm to the fetus or potential offspring when fertile women are exposed to lead levels of 30 ug/dl. This is because the company must establish that there is such a considerable amount of scientific opinion acknowledging the existence of the risk that an informed employer contemplates acting upon. In this case, there is a great body of scientific opinion countering the basis of Johnson's fetal protection policy.

2. The Issue of Whether the Hazard Applies to Fertile or Pregnant Women, But Not to Men

The second requirement of the business necessity defense is that the defendant must show that the hazard in question affects only women, not men. [n164] Fetal toxins, as previously explained, can act as reproductive hazards to men as well as women. [n165] Mutagens are particularly important to detect among male reproductive hazards. A mutagen can act like a time bomb, lying dormant in the offspring of one generation, only to cause birth defects in future generations. [n166]

In Johnson, the Seventh Circuit held lead could not harm the offspring of male workers exposed to it. The court explained the plaintiff's proof that the hazard constituted a male reproductive hazard was based solely on animal studies, which "were not scientifically acceptable as being applicable to humans." [n167] Therefore, in analyzing the question of whether lead can damage offspring through male exposure, several issues need to be addressed: (1) whether animal studies can satisfactorily be applied to humans; (2) whether these studies show that lead poses a reproductive hazard for men; and (3) whether human studies exist which demonstrate this harm.

Animal studies play an important role in assessing the safety of chemicals [n168] and their predictive value has been vindicated. [n169] They are widely used by the Food and Drug Administration (FDA), and scientists use FDA's protocol to test for reproductive hazards. [n170] Individuals outside of the scientific world have recognized the importance of animal studies. For example, in a report to the U.S. Congress, the Office of Technology Assessment emphasized the importance of animal studies because of the ethical problems created by "experimental studies" exposing humans to toxins. [n171] OSHA relied on animal studies for the formulation of its lead standard. [n172] Most importantly, the Supreme Court has upheld the use of these studies. [n173] Therefore, there is no justification for the Seventh Circuit's dismissal of the results of animal studies in Johnson.

There are many animal studies which prove that male lead exposure presents a reproductive harm. [n174] Plaintiff's experts cited to several of them. One expert cited research which demonstrated that male animals exposed to lead suffer sperm deformities which appear to be inheritable. [n175] He discussed other studies involving newborn rats whose fathers or mothers had been exposed to lead before conception. [n176] The offspring exhibited decreased litter size and birth weight, and a lower than normal rate of survival, no matter whether the father or the mother had prior contact with lead. [n177] He also noted the results of another study where lead-exposed progeny displayed cognitive abilities which were "substantially decreased." [n178] Another expert cited research which found significant behavior problems in such offspring. [n179] Regarding findings about the levels of lead exposure utilized in animal studies, plaintiff's expert made a significant point that even low levels of lead exposure can cause genetic damage in offspring. [n180] As noted, the effects of these mutagens can be devastating because they potentially affect future generations. [n181]

There have also been studies involving male lead workers which attest to the fact that exposure to lead is a reproductive hazard, contrary to the Seventh Circuit's finding that only animal studies make this showing. [n182] As early as 1905, there have been documented reports that wives of workers exposed to lead suffered a large number of miscarriages, stillbirths, and high first-year infant mortality rates. [n183] There have been many recent studies which experts in the field have relied upon to confirm the existence of male reproductive hazards. [n184]

For example, the results of a study of lead battery workers in Italy in 1986 confirmed the finding that the men had lowered sperm production and motility due to the toxic effect of lead. [n185] Similarly, research from Spain demonstrated that workers in a lead smelting plant suffered testicular toxicity, [n186] and several studies have found that male lead exposure causes chromosomal changes in lymphocytes. [n187]

The plaintiff should easily be able to disprove Johnson's claims that lead acts as a reproductive hazard only to fertile or pregnant women and not to men, and that this contention is backed by a considerable body of scientific evidence. [n188]

IV. LIABILITY AND CAUSATION ISSUES

A. Liability Issues

Many companies have instituted fetal protection policies not only because they are concerned about the health of the unborn children of their workers, but also because they are worried about lawsuits. [n189] They are concerned that litigation instituted by children injured by mother's exposure to a toxin would be costly. [n190] However, it is questionable whether fetal protection policies can resolve this problem, as it is unclear whether these lawsuits were ever a problem in the first place. Lead exposure has resulted in only one lawsuit brought by an injured child, and the child lost. [n191] In addition, many companies which utilize chemicals which are reproductive hazards do not have fetal protection policies. [n192]

One legal scholar asserts that an employer would not be liable to a child born deformed due to a parent's occupational exposure as long as the courts have declared that Title VII bans gender-based fetal protection policies. Consequently the employer would not act negligently if it informed the workers of the reproductive risks. [n193]

In a lawsuit involving a child injured due to parental workplace exposure, the employer would be liable to the parent, as opposed to the child, only if the workplace harm was intentional. [n194] If an employer were negligent, the suit would probably be barred by the state worker's compensation law, which would mandate that the employee turn to the worker's compensation board for relief. [n195] However, if the exposure were intentional, the employee could base the claim on various torts, including intentional infliction of reproductive damage and intentional infliction of emotional distress. [n196] The employee could also sue to recover other medical damages, including costs of care for the child.

Whether or not the harm was negligent or intentional, the child could sue the parent's employer for prenatal injuries, [n197] or for wrongful life. [n198] As a resolution to these possible lawsuits, some come commentators have discussed the possibility of a parent waiving the right or the unborn child's right to sue the employer. [n199] However, the courts generally dismiss the latter idea, since an individual cannot waive the rights of a third party. [n200]

Employers may be liable to these injured children. [n201] Perhaps this is fair, as someone has to bear the costs of these harms if they do occur, and the employer is generally in a better economic situation than the worker to do so.

B. Causation Issues

Even if courts find that a company may be liable to a child harmed by parental toxic exposure, it will be very difficult to prove causation. Fetal injuries caused by most chemicals, including lead, are not so unique that they can be traced back to a particular chemical. [n202] This, coupled couples with the fact that there are many possible sources for these injuries, can make proof of causation a troublesome task. [n203]

In addition, both prenatal and postnatal exposure to agents may be the origin of defects. [n204] Two of the most toxic chemicals to the unborn are cigarette smoke and alcohol. [n205] Fetal exposure to either of these substances can result in many deleterious effects, such as low birth weight and below normal cognitive development, [n206] as does the unborn's exposure to lead by way of the parent. Furthermore, lead in water causes a potential risk to 622,000 fetuses annually. [n207]

Many postnatal hazards complicate the burden of proof for the victim even more. Generally speaking, the primary sources of lead for children are paint, dust, soil, water, food, and air. [n208] Therefore, if a child demonstrates cognitive learning problems, they could be due to prenatal causes, such as a parent's workplace lead exposure. However, they could also result from a source the child was exposed to since birth, or even be based on a combination of both prenatal and postnatal factors.

There can be further complications in determiniing determining the source of injury. If both parents were employed, and each worked for a different company where exposure to an agent caused reproductive hazards, perhaps the court would rule both companies liable. Also, if stress and proper hygiene are factors in the elevation of blood lead levels, [n209] then the child could bring suit against the employer, but the employer may in turn seek recovery from the parent, claiming that the parent was responsible for poor hygiene or poor stress management.

It is easy to see that an injured child would have an extremely difficult burden of proof related to causation. [n210] Because the lawsuits themselves are difficult for the plaintiff to win, it will be difficult for employers to show the need to implement fetal protection policies to insulate themselves from potential lawsuits.

C. Alternatives to Fetal Protection Policies

If a defendant meets all the requirements of the business necessity defense, the plaintiff can still show that the fetal protection policty policy in questin question constitutes sex discrimination. [n211] When the Seventh Circuit decided Johnson, it held that if a plaintiff in a fetal protection policy case argues that the employer could utilize acceptable alternatives, then the the plaintiff has the burden of presenting the employer's specific options, and of showing the options are "economically and technologically feasible." [n212] In addition, the plaintiff must show that the alternatives are as effective as the fetal protection policy in accomplishing legitimate company goals, taking into consideration "costs and other burdens" that the employer would have to bear in determining whether the options would be equal to the existing policy. [n213]

One common option which commentators have proposed is allowing companies to have limited fetal protection policies. [n214] These policies could be structured in many different ways, providing flexibility to both employers and employees. One proposal allows workers who are at risk to take reproductive leave, [n215] or be transferred to another position where they would not be exposed to the risk. [n216] An important issue concerning limited policies is deciding who will formulate them. One legal scholar has suggested Congress would be more responsive to the opinion opinions of women workers than either employers or the courts would be. [n217] In addition, Congress might be more adept than either employers or the courts at uncovering whether scientific bases for fetal protection policies exist. [n218]

Another proposal includes governmental agency evaluation and regulation of industry use of fetal protection plans. OSHA would be an appropriate agency for this task, as it has completed research on the reproductive harms of many chemicals, and its general duty clause states that companies are to provide their employees with a workplace free from hazards. [n219] Other commentators have suggested that the the EPA be in charge of overseeing fetal protection plans, [n220] through its enforcement of the Toxic Substances Control Act. [n221] Modifying the worker's compensation system to include children whose birth defects are a prenatal product of their parents' toxic workplace exposure is yet another interesting recommendation. [n222]

Another unique alternative to fetal protection policies would be mandatory pregnancy testing for female workers exposed to reproductive hazards. [n223] Some observers say this would violate a woman's right to privacy, but others think women would be far less averse to pregnancy testing than to fetal protection policies. [n224] However, these tests only continue the paternalistic behavior of companies towards female employees, which contributed to companies' institution of fetal protection policies in the first place. A much better method to achieve the same result would be for employers to trust women workers to inform them of the pregnancy. [n225]

Another suggestion requires industry to make the workplace safe for all workers. [n226] However, the Seventh Circuit requirements would mandate that companies only carry out alternatives if their costs are not prohibitive, and if technologically possible. As it stands now, many may employers allege that they have made the workplace as safe as they can, and employees who disagree might have to resort to a lengthy court process. [n227]

D. Chelation Therapy -- An Alternative to Fetal Protection Policies in the Lead Industry

This Article proposes an alternative conclusion centered around the careful monitoring of workers in an attempt to approximate "zero risk" of fetal injuries resulting from lead exposure. First, as argued in this Article, either the courts or Congress should eliminate fetal protection policies as they currently exist since they violate Title VII. [n228]

Second, using lead as an example, companies which expose their workers to lead should carefully monitor their employees according to OSHA regulations. For example, OSHA instructs employers to institute medical surveillance programs, [n229] biological monitoring, including periodic measuring of workers' blood lead levels, [n230] and to provide medical evaluations and consultations. [n231] It also mandates companies to provide workers with protective gear and respirators [n232] in an attempt to keep their exposure at a safe level. If workers' blood lead levels are very high, and they exhibit symptoms of lead poisoning, OSHA does suggest chelation therapy. [n233] The lead standard does not mention using this treatment specifically on pregnant women or on infants who may have been exposed to lead before birth, but, as mentioned previously, physicians have successfully utilized this therapy. [n234] These proposals would accomplish the same goals the employers attempt to achieve by instituting fetal protection policies -- the elimination of risk to the fetus. Male and female workers would be carefully monitored on a periodic basis. If a worker had a blood lead level higher than the OSHA standard, removal from the lead environment would be necessary. If diagnosed with lead poisoning, the physician might order chelation treatment. Pregnant women and newborns with high blood lead levels could also recieve receive this treatment. [n235] These proposals should lead to elimination of lead exposure as a substantial reproductive hazard.

The monitoring and protective gear would not cost the employer an excessive amount (for several years OSHA has required that companies provide these programs and items to their employees) and the employees' health benefits would probably cover any necessary medical treatment. Therefore, none of the proposals contravene the parameters which the Seventh Circuit outlined in Johnson for acceptable alternative alternatives to fetal protection policies.

Many incentives for companies and employees to accept these alternatives exist. These alternatives offer a much better option for workers compared to fetal protection policies. Monitoring exposure to lead is a safe and healthy alternative. Additionally, employers could be induced to participate by various methods. One method would be to enact legislation mandating companies to comply with monitoring requirements or be subject to fines or other penalties. Worker's compensation laws could be expanded to include children injured due to parental workplace exposure. The laws could be structured to provide the deformed child the right to sue in tort where an employer does not adequately monitor an employee. Another alternative requires employers who desire liability insurance for an injured child to comply with monitoring requirements as a condition for both procuring and maintaining this insurance.

V. CONCLUSION

Companies which exposed their employees to hazardous chemicals once thought that fetal protection policies which banned all women of child bearing age from the workplace would address their moral and legal duties. However, an entirely new problem arose as these policies came to be viewed as sex discrimination and violations of Title VII.

Most of the courts have thus far ruled that the policies are not violative of Title VII. However, these courts did not carefully examine the scientific evidence that the plaintiffs presented. For instance, if the court in Johnson had made a closer examination of the evidence before it, the court would have concluded that lead exposure does not create a reproductive hazard substantial enough to meet the standard set forth in the business necessity defense. Also, the court would have concluded that lead very clearly constitutes a reproductive hazard to men, with the consequence that the defendant's current fetal protection policy violated Title VII.

If the current fetal protection polices are found not to be scientifically sound, employers will either not be able to implement them, or will have to take other types of action. Therefore, it is important to examine suitable alternatives to these polices so that employers can provide safe workplaces, while not unfairly excluding women from the workplace.

REFERENCE: [n1.] See e.g., Zuniga v. Kleberg County Hosp., 692 F.2d 986 (5th Cir. 1982); Hayes v. Shelby Mem. Hosp., 762 F.2d 1543, reh'g denied, 732 F.2d 944 (11th Cir. 1984).

[n2.] Rom, Effects of Lead on the Female and Reproduction: A Review, 43 MOUNT SINAI JOURNAL OF MEDICINE 542 (1976).

[n3.] Wash. Post, Nov. 3, 1979, at A6, col. 4.

[n4.] Equal Opportunity Employment Commission and Department of Labor, Interpretive Guidelines on Employment Discrimination and Reproductive Hazards, 45 Fed. Reg. 7514 (1980), withdrawn, 46 Fed. Reg. 3916 (1981).

[n5.] International Union, United Automobile, Aerospace and Agricultural Implement Workers of Am., United Auto Workers et al. v. Johnson Controls, Inc., 886 F.2d 871, 920 (7th Cir. 1989), cert. granted, 58 U.S.L.W. 3614 (1990).

[n6.] Id.

[n7.] High Court to Decide Busing and Job Issues, N.Y. Times, March 27, 1990, at 1, col. 1.

[n8.] Needleman, Prenatal Exposure to Pollutants and Neural Development, in LEARNING DISABILITIES AND PRENATAL RISK 20 (M. Lewis ed. 1986).

[n9.] Id.

[n10.] INTERNATIONAL LABOUR OFFICE, 2 ENCYCLOPEDIA OF OCCUPATIONAL HEALTH AND SAFETY 1200, 1201 (3d rev. ed. 1983).

[n11.] N. ASHFORD, OCCUPATIONAL DISEASE AND INJURY 256 (1976).

[n12.] Brief for Appellant at 5, Johnson, 886 F.2d 871 (7th Cir. 1989) (No. 88-1308). Appellant notes that the defendant may not have hired women in its production jobs involving lead until the 1970's.

[n13.] Becker, From Muller v. Oregon to Fetal Vulnerability Policies, 53 U. CHI. L. REV. 1219, 1225 (1986). Historically men have held most of these jobs, and only when the Office of Federal Contract Compliance and the Equal Employment Opportunity Commission began to pressure these companies did they start opening up these jobs to women. Id.

[n14.] See, e.g., Doerr v. B. F. Goodrich Co., 484 F. Supp. 320, 321 (N.D. Ohio 1979) (defendant instituted fetal protection policy in 1979); Oil, Chemical and Atomic Workers Int'l Union v. American Cyanamid Co., 741 F.2d 444, 446 (D.C. Cir.) (1984) (defendant began its policy in 1978).

[n15.] 42 U.S.C. § 2000e-2(a)(1), (2) (1982).

[n16.] 42 U.S.C. § 2000e(k) (1982).

[n17.] Buss, Getting Beyond Discrimination: A Regulatory Solution to the Problem of Fetal Hazards in the Workplace, 95 YALE L. J. 577, 584 (1986); Comment, Fetal Protection Programs Under Title VII -- Rebutting the Procreation Presumption, 46 U. PITT. L. REV. 755, 769 (1985) [hereinafter Comment, Fetal Protection Policies].

[n18.] International Bhd. of Teamsters v. United States, 431 U.S. 324, 335, n. 15 (1977).

[n19.] 42 U.S.C. §§ 2000e-2(e) (1982).

[n20.] For a more expansive explanation of Title VII and fetal protection policies see Comment, Fetal Protection Policies, supra note 17, at 766-794.

[n21.] Robinson v. Lorillard Corp., 444 F.2d. 791, 798 (4th Cir.), cert denied, 404 U.S. 1006 (1971). The business purpose must be sufficiently compelling to override any racial impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be no available acceptable alternative policies or practices which would better accomplish the business purpose advanced or accomplish it equally well with lesser differential racial impact. Id.

[n22.] See infra notes 30-31 and accompanying text.

[n23.] Manson, Human and Laboratory Animal Test Systems Available for Detection of Reproductive Failure, 7 PREV. MED. 322, 325 (1978).

[n24.] Scott, Reproductive Hazards, 6 JOB SAFETY & HEALTH 7, 8 (May 1978).

[n25.] Id.

[n26.] Id. Thalidomide, a teratogenic drug which pregnant women ingested several decades ago, caused damaged limb formation. Id.

[n27.] Id.

[n28.] In Doerr v. B. F. Goodrich Co., 484 F.Supp. 320 (N.D. Ohio 1979), the company argued that it instituted a policy prohibiting women employees of child bearing age from working in the vinyl chloride units, claiming the chemical was a transplacental carcinogen and could therefore cause fetal cancer. The plaintiff, on the other hand, provided evidence that the toxin was a male mutagen, meaning that it could possibly injure the offspring of male workers. The plaintiff then argued that the defendant's fetal protection policy violated Title VII as it illogically discriminated against women. Id. at 326 n.4.

[n29.] 692 F.2d 986 (5th Cir. 1982).

[n30.] Id. at 988.

[n31.] Id. at 992.

[n32.] Id. at 992 n.10 (citing Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir.), cert. denied, 404 U.S. 1006 (1971).

[n33.] Id. However, this is not a valid argument under Title VII.

[n34.] 726 F.2d 1543, reh'g. denied, 732 F.2d 944 (11th Cir. 1984).

[n35.] Id. at 1548. The court noted that it had borrowed these criteria from the Fourth Circuit's decision in another fetal protection policy case, Wright v. Olin Corp., 697 F.2d 1172, 1190-91 (4th Cir. 1982).

[n36.] Id. (citing Olin at 1191).

[n37.] Id. at 1553.

[n38.] Id. at 1551.

[n39.] 484 F.Supp. 320 (N.D. Ohio 1979).

[n40.] Id. at 325.

[n41.] Id. at 325 n.3. See infra notes 199-200 and accompanying text.

[n42.] 484 F.Supp. at 326 n.4.

[n43.] Id.

[n44.] 697 F.2d 1172 (4th Cir. 1982).

[n45.] Id. at 1182. Non-pregnant women and some pregnant women were allowed to work in jobs where they would have limited exposure to toxins after signing an acknowledgement that there was a slight risk of danger. Id.

[n46.] Id. at 1190. See also supra notes 35-36 and accompanying text.

[n47.] Id. at 1189. The court cited Burwell v. Eastern Airlines, Inc., 633 F.2d 361 (4th Cir. 1980), cert. denied, 450 U.S. 965 (1981), where the court held that mandatory leaves for pregnant stewardesses were based on the safety of passengers, and thereby constituted a business necessity defense.

[n48.] 697 F.2d at 1191 (citing Robinson v. Lorillard Corp. 444 F.2d 791, 798 (4th Cir.), cert. denied, 404 U.S. 1006 (1971)).

[n49.] Id. at 1191.

[n50.] Wright v. Olin Corp., 585 F. Supp. 1447, 1453 (W.D.N.C. 1984).

[n51.] Id. at 1451-52. The scientists identified the agents as benzene, toluene, carbon disulfide, and lead. One commentator observed that the district court did not make a finding as to the significance of the risk of exposure, which the Fourth Circuit stated is an element of the business necessity defense. Comment, Fetal Protection Policies, supra note 17, at 780 n.4.

[n52.] Olin, 585 F.Supp. at 1452. The policy, which banned virtually all women workers, was determined to be sound as the court noted that the first weeks of pregnancy were when the fetus was most at risk from toxic contact. This was a period when many women do not realize that they are pregnant. Id.

[n53.] 741 F.2d 444 (D.C. Cir. 1984). For a thorough analysis of this case, fetal protection policies, and OSHA regulations see generally Nothstein & Ayres, Sex Based Considerations of Differentiation in The Workplace: Exploring the Biomedical Interface Between OSHA and Title VII, 26 VILL. L. REV. 239 (1981).

[n54.] 29 U.S.C. § 654(a)(1) (1985).

[n55.] American Cyanamid, 741 F.2d at 445.

[n56.] Id. The plant director informed Cyanamid's female employees of this policy along with company medical personnel who explained that sterilization was a simple procedure, that their medical insurance would pay for it and that they could take sick leave. The director also told them that after the policy went into effect in May 1978, that only seven slots would be available for nonsterilized women; the remainder would lose their jobs. At that time there were thirty female employees. Id. at 446.

[n57.] Id.

[n58.] Id.

[n59.] 29 U.S.C. § 654(a)(1) (1985).

[n60.] American Cyanamid, 741 F.2d at 447.

[n61.] American Cyanamid Co., 9 O.S.H. Cas. (BNA) 1596, 1600 (1981).

[n62.] American Cyanamid, 741 F.2d at 449.

[n63.] Id. (citing American Cyanamid Co., 9 O.S.H. Cas. at 1600).

[n64.] American Cyanamid, 741 F.2d at 450.

[n65.] 886 F.2d. 871 (7th Cir. 1989), cert. granted, 110 S. Ct. 1522 (1990).

[n66.] See supra notes 5-7 and accompanying text.

[n67.] 218 Cal.App. 3d 517, 267 Cal. Rptr. 158 (1990), reh'g denied, S014910 (May 17, 1990).

[n68.] The policy at issue in the 7th Circuit case is the same one which is the subject of the California decision.

[n69.] The fetal protection policy was based on blood lead levels and air samples. It pertained to any work area where any employee had a blood lead level which was higher than 30 ug/dl during the previous year, or any work area which had an air sample with a lead level which exceeded 30 ug per cubic meter. Johnson, 886 F.2d at 876. Blood lead levels in workers are commonly used as a measurement of the amount of lead existing in a particular worksite, as one of lead's effects on the body is its absorption into the bloodstream. Lead can also be measured by taking air samples. See supra note 10, at 1202. Blood lead levels can be measured in units of: mg, or milligrams; ug, or micrograms, per 100 grams; 100 milliliters (100 ml) or deciliter (dl) of blood. These three units are essentially the same. 29 C.F.R. § 1910-1025 app. A (II) (3) (1988).

[n70.] Johnson, 886 F.2d at 876.

[n71.] 680 F.Supp. 309 (E.D. Wis. 1988).

[n72.] See supra notes 34, 35, 46-50 and accompanying text.

[n73.] Johnson, 886 F.2d at 886.

[n74.] See supra notes 35-36 and accompanying text.

[n75.] Johnson, 886 F.2d at 888.

[n76.] Id.

[n77.] Id. at 887-888.

[n78.] Id. at 879 (citing Chisholm's aff. at para. 6).

[n79.] Id. at 881 (citing Chisholm's aff. at para. 6).

[n80.] Id. at 880 (quoting Whorton aff. at para. 6).

[n81.] Id. (quoting Chisholm aff. at para. 8, and Silbergeld dep. at 64).

[n82.] Id. (quoting Silbergeld dep. at 49-50, Chisholm aff. at para. 6, and Scialli aff. at para. 7).

[n83.] Id. at 877.

[n84.] Id.

[n85.] Id. at 881 (quoting Hammond aff. at para. 3).

[n86.] Id.

[n87.] Id. at 881 (quoting Chisholm's aff. at para. 10).

[n88.] Id. at 893.

[n89.] Id. at 889-890.

[n90.] Id. at 891.

[n91.] Id. at 892.

[n92.] 267 Cal. Rptr. 158, 170 (4th Dist. 1990).

[n93.] Id. at 163. The Commission also held that the policy was not based on a bona fide occupational qualification.

[n94.] Id.

[n95.] Id. at 170-71.

[n96.] Id. at 171.

[n97.] Id. at 172.

[n98.] Id. at 167 (citing 40 Fed. Reg 45,934, 45,936 (1975)). The Seventh Circuit did not mention the OSHA findings in its Johnson decision. The court noted that even one of the company's experts had testified that, although he felt there was a lack of recent studies concerning lead's effects as a reproductive health hazard to men, there "was as great a likelihood of discovering harm to male lead worker's offspring." Id. at 168.

[n99.] Id.

[n100.] Id. at 169. Additionally, the court noted that at the heart of defendant's policy were unfounded notions about women, including the beliefs that women cannot be trusted to use birth control, and that they cannot be expected to make intelligent decisions about pregnancy even if they receive proper information about reproductive hazards. Id. at 177. The court concluded that the discrimination in this case was based only on "categorical, long ago discarded assumptions about the ability of women to govern their sexuality." Id. at 178.

[n101.] See supra note 4. See also Paul, Corporate Response to Reproductive Hazards in the Workplace: Results of the Family, Work, and Health Survey, 16 AM. J. INDUS. MED. 267 (1989). This article reports a state-wide survey done on industries and reproductive hazards in Massachusetts. The results demonstrated almost one out of every five companies restricted women workers in some way, claiming it was due to a reproductive harm. Id. at 276.

[n102.] See, e.g., Nothstein & Ayres, supra note 53, at 239. American Cyanamid's plant in Willow Island, West Virginia was one of the few employers in town offering "decent pay." Id.

[n103.] Comment, Fetal Protection Policies, supra note 17, at 764. If these women do not choose sterilization, then, for all intents and purposes, they may be excluded forever from earning decent wages. Becker, supra note 13, at 1229.

[n104.] Becker, supra note 13, at 1229. When pregnant, women have a difficult time finding another job. With no income or health benefits, a woman will most likely not receive good medical care, and is likely to be malnourished, posing a risk to her fetus.

[n105.] Williams, Firing the Woman to Protect the Fetus: The Reconciliation of Fetal Protection with Employment Opportunity Goals under Title VII, 69 GEO. L.J. 644, 654-655 (1981).

[n106.] See Muller v. Oregon, 208 U.S. 412 (1908).

[n107.] See, e.g., Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971).

[n108.] B. BABCOCK, A FREEMAN, E. NORTON, & S. ROSS, SEX DISCRIMINATION AND THE LAW, CAUSES AND REMEDIES 247-68 (1975).

[n109.] See id. at 270, and Williams, supra note 105, at 655. But see Becker, supra note 13, at 1254, who argues that judges display a tremendous amount of bias against women, and do not take their discrimination cases seriously.

[n110.] See Muller, 208 U.S. at 421.

[n111.] See Becker, supra note 13, at 1239.

[n112.] Id. at 1241.

[n113.] The issue of fetal rights generally, although not new, has become a greater societal concern over the last decade or so. Besides the advent of fetal protection policies, attention has focused on fetal alcohol syndrome, and on infants born addicted to cocaine due to their mothers' drug use. See generally, Pollitt, "Fetal Rights": A New Assault on Feminism, 250 THE NATION 409 (March 26, 1990).

[n114.] See Becker, supra note 13, at 1228, who comments that employers assert that a woman's loss of her narrow employment opportunities is a small sacrifice compared to the interests of the fetus.

[n115.] 410 U.S. 113 (1973).

[n116.] Id. at 154, 158.

[n117.] See OFFICE OF TECHNOLOGY ASSESSMENT, REPRODUCTIVE HEALTH HAZARDS IN THE WORKPLACE 35-36 (1985) [hereinafter Reproductive Health Hazards]. But see Paul, supra note 101, at 227, which states that some industries in Massachusetts have fetal protection policies which restrict men.

[n118.] See Scott, supra note 24, at 12, (quoting Dr. Joseph Wagoner, OSHA special assistant for occupational carcinogenesis).

[n119.] See Reproductive Health Hazards, supra note 117, at 35-36.

[n120.] See supra note 104 and accompanying text.

[n121.] Rothstein, Employee Selection Based on Susceptibility to Occupational Illness, 81 MICH. L. REV. 1379, 1462 (1983). The use of alcohol and tobacco during pregnancy presents the greatest danger to a fetus, not material exposure to a chemical in the workplace. Haas, Risks to the Offspring from Parental Occupational Exposures, 21 J. OCCUPATIONAL MED. 607, 608 (1979).

[n122.] See Williams, supra note 105, at 649.

[n123.] See Becker, supra note 13, at 1237-1238.

[n124.] Id.

[n125.] Coleman & Dickerson, The Risks of Healing: The Hazards of the Nursing Profession, in DOUBLE EXPOSURE 46 (W. Chavkin ed. 1984).

[n126.] Henifin, The Particular Problems of Video Display Terminals, in DOUBLE EXPOSURE 72 (W. Chavkin ed. 1984).

[n127.] See Scott, Keeping Women in Their Place: Exclusionary Policies and Reproduction, in DOUBLE EXPOSURE 182 (W. Chavkin ed. 1984).

[n128.] See Rothstein, supra note 121, at 1462.

[n129.] See Scott, supra note 127, at 184.

[n130.] See supra note 100 and accompanying text.

[n131.] J. STELLMAN, WOMEN'S WORK, WOMEN'S HEALTH: MYTHS AND REALITIES 25 (1977).

[n132.] Id. at 21.

[n133.] U.S. PUB. HEALTH SERV., U.S. DEPT OF HEALTH, EDUCATION, WELFARE, ADVANCE DATA: PREGNANT WOMEN WORKERS IN THE UNITED STATES, 1 (1977).

[n134.] Stellman & Henifin, No Fertile Women Need Apply in BIOLOGICAL WOMAN - THE CONVENIENT MYTH 138 (R. Hubbard ed. 1982).

[n135.] See J. STELLMAN, supra note 131, at 25.

[n136.] See Becker, supra note 13, at 1232.

[n137.] Industry may counter that fetal protection policies are necessary to also protect those few children born to women over the ages of 30 or 40. The dissent in the Seventh Circuit's Johnson opinion, questions why the fetal protection policy should have covered women over the age of 40. Johnson, 886 F.2d at 919.

[n138.] Hayes v. Shelby Mem. Hosp., 726 F.2d 1543, 1548. See supra notes 35-36 and accompanying text. The Johnson court analyzed which party had the burden of persuasion as to the business necessity defense, and held that the plaintiff had the burden of proving that the defendant, once he raised the defense, could not meet it. Johnson, 886 F.2d at 887.

[n139.] Hayes, 726 F.2d at 1548.

[n140.] Id.

[n141.] See Williams, supra note 105, at 661. There are 63,000 chemicals "in common use" and almost no information about whether they pose reproductive hazards. Id.

[n142.] See Family Health Council of Western Pennsylvania, Inc., in REPRODUCTIVE HEALTH POLICIES IN THE WORKPLACE 206 (1983) (Proceedings of Symposium May, 1982) [hereinafter Family Health Council]. The difficulty of research in this area results from the large sample size required to demonstrate resultant birth defects. The author explains that in order to complete a study of this kind, the sample size would require about 6,000 women who were exposed to a toxic agent for an average of three years. Id. Another problem is identifying the agent to which the mother was exposed eight to nine months prior to the time she gave birth. Id. at 217.

[n143.] Johnson, 886 F.2d at 876. The Johnson fetal protection policy mandated women could not work in units where any worker records blood lead levels above 30 ug/dl, reasoning this would be harmful to the fetus. Id. However, in the ruling by the California Court of Appeals, the court held that the only studies the company relied on were from the years 1910-1914, when researchers did not use blood lead level measurements, and whose investigations were founded only upon "Dickensonian horror stories." Johnson Controls v. California Fair Employment and Housing Comm'n, 218 Cal. App. 3d 517, 267 Cal. Rptr. 158, 169 (1990).

There is a lack of research on the reproductive effects on women workers exposed to lead at levels used in industry today. This is an important discriminating factor because lead levels are generally lower than they were in past decades. See Hatch, Mother, Father, Worker: Men and Women and the Reproductive Risks of Work, in DOUBLE EXPOSURE 171 (W. Chavkin ed. 1984). Generally, there is a dearth of research on reproductive hazards and chemicals used in the workplace today. See Becker, supra note 13, at 1235.

[n144.] Johnson, 886 F.2d at 880 (citing CENTERS FOR DISEASE CONTROL, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, PREVENTING LEAD POISONING IN YOUNG CHILDREN, 7, 20, 21 (1985)).

[n145.] Johnson, 886 F.2d at 880. The expert never stated what levels they were referring to, except for one expert who refers to one study which claimed that exposure to more than 12 ug/dl creates a significant risk. Id. at 881.

[n146.] For some reason, the majority of the Seventh Circuit put great weight on this part of the testimony of Johnson's medical consultant. He stated that before the fetal protection policy went into effect six female employees were pregnant at the same time they were exposed to "high lead" levels, and one of them gave birth to a child who subsequently became hyperactive, which the consultant claimed was probably caused by the mother's prior exposure to lead. Id. at 877. The record is void as to whether the witness ruled out other possible reasons for the child's hyperactivity, such as dwelling in an old house which contained lead paint or living near a highway and being inundated by gasoline car fumes which contained lead.

In addition, in the California case the court pointed out that Johnson never kept track of the pregnancies of its women workers, nor documented whether the children suffered any later effects, due to the workers' prior contact with lead. California Fair Employment, 218 Cal. App. 3d at , 267 Cal. Rptr. at 174 n.14.

[n147.] Ghafour, Congenital Lead Intoxication with Seizures Due to Prenatal Exposure, 23 CLINICAL PEDIATRICS 282 (1983). Many scientists believe that the current level of exposure in the workplace does not pose a danger to the fetus. This is exemplified best in OSHA's lead standards which state that a fertile woman with blood lead levels of up to 40ug/dl would still not pose a harm to the fetus. 29 C.F.R. § 1910.1025 app. B 862 (1988). OSHA stated that this lead level should be safe as long as the woman also availed herself of other protective methods suggested by the lead standard, such as using a respirator and employing other hygienic precautions. Judge Easterbrook in his dissent points out that neither Johnson nor the majority in the Seventh Circuit case ever addressed the issue of whether utilizing respirators, educational programs, or making use of other suggestions made by OSHA in its lead standard would reduce women workers' level of exposure. Johnson, 886 F.2d at 917.

[n148.] Several of plaintiff's experts stated that exposure posed equivalent dangers to adults. Brief for Appellant at 16, Johnson, 886 F.2d 871 (No. 88-1308) (citing deposition testimony of M. Legator, Ph.D.; M. Silverstein, M.D., M.P.H.; and E. Silbergeld, Ph.D.). Dr. Silbergeld, in referring to the blood lead level of 30ug/dl set by the fetal protection policy, explained, "I don't think it's extra protection [for the fetus]. I think at these levels everyone is at very severe and significant risk, male, female or fetus . . ." Silbergeld dep. at 82.

An authority on women's reproductive hazards has declared that ". . . exposure to lead is not known to cause human defective births at levels below those which adversely affect the adult." See J. STELLMAN, supra note 131, at 183.

[n149.] Johnson, 886 F.2d at 881-882. See supra notes 87-89 and accompanying text. Defendant's experts maintained that even after the worker's exposure to lead has ceased, the chemical remains in the body, posing a harm to the fetus. However, these experts suggested very different lengths of time that lead remains within the body; one reported 100 days, another, many years. Id.

[n150.] Some experts maintain that the period of danger for fetal exposure is not the first trimester of pregnancy. One authority explains the placenta as not fully functional until the second trimester, and accordingly this is the time the fetus is most endangered by maternal exposure to toxins. Stellman, The Occupational Environment and Reproductive Health, in ENVIRONMENTAL AND OCCUPATIONAL DISEASES 75 (W. Rom ed. 1983). Additionally, Silbergeld, an expert for the plaintiff, maintains that fetal risk in these cases begins only late in pregnancy. Even one of the defendant's witnesses, Chisholm, attested to the fact that lead would only begin entering the placenta late in pregnancy, and thereby not pose a danger to the fetus until the last half of the third trimester. Johnson, 886 F.2d at 915, n.10 (Easterbrook, J., dissenting). But see id., at 916 n.11 and California Fair Employment, 218 Cal. App. 3d at , 267 Cal. Rptr. at 169, which state that early in the pregnancy lead may build up in the placenta, but the effect on the fetus is unknown.

[n151.] One authority states that it takes only four to six weeks for lead which is not stored in bones to leave the body, and that the type of lead contained in bones, lead-207, is "less active biologically." Johnson, 886 F.2d at 916 n.11 (citing NATIONAL RESEARCH COUNCIL ON BIOLOGIC EFFECTS OF ATMOSPHERIC POLLUTANTS 68 (1972)).

[n152.] Early detection of pregnancy can be accomplished by a pregnancy test within eight days after conception. See Williams, supra note 105, at 697 n.316 (citing J. GREENHILL & E. FRIEDMAN, BIOLOGICAL PRINCIPLES AND PRACTICE OF OBSTETRICS 57 (1974)).

[n153.] Johnson, 886 F.2d at 881 n.22.

[n154.] S. KUSTNETZ & M. HUTCHISON, A GUIDE TO THE WORK-RELATEDNESS OF DISEASE 107 (rev. ed. 1979).

[n155.] See Angle & McIntire, Lead Poisoning During Pregnancy, 108 AM. J. DISEASES CHILDREN 436, 437 (1964).

[n156.] See Ghafour supra note 147 and accompanying text.

[n157.] The articles are written primarily by physicians who have treated pregnant women who had elevated blood lead levels and displayed other signs of lead poisoning, and have treated women using chelation therapy. See Angle & McIntyre, supra note 155, at 437-38; Rom, supra note 2, at 546. But see Rempel, The Lead-Exposed Worker, 262 J.A.M.A. 532, 534 (1989), who cautions about administering chelation treatment employing edentate disodium calcium to pregnant workers, warning that if it is not accompanied by zinc that it could cause birth defects.

Some articles report that women, exposed to lead, gave birth to healthy infants, and these children examined at later ages exhibited no signs of lead poisoning. See Angle & McIntyre, supra note 155, at 438; Rom, supra note 2, at 546. But see Timpo, Congenital Lead Intoxication, 94 J. PEDIATRICS 765 (1979). The author presented the case of an infant who had a very high blood lead level at birth, even though the mother had undergone chelation therapy while pregnant. However, the infant subsequently underwent chelation treatment and eventually the blood lead level normalized. Id. at 766.

[n158.] Piomelli, Management of Childhood Lead Poisoning, 105 J. PEDIATRICS 523 (1984). See generally Sachs, Ambulatory Treatment of Lead Poisoning Report of 1,155 Cases, 46 J. PEDIATRICS 389 (1970), which discusses the successful treatment of over 1,000 cases of childhood lead poisoning in Chicago.

[n159.] See, e.g., Ghafour, supra note 147. A physician treated a 17-day-old infant whose mother had been exposed to lead while pregnant. The baby demonstrated immediate improvement after chelation therapy. Id. at 283. See also Palmisano, Untaxed Whiskey and Fetal Lead Exposure, 75 J. PEDIATRICS 869 (1969), where a mother, during pregnancy, drank moonshine whiskey containing a great deal of lead and subsequently a physician treated her two-month old baby for lead intoxication, using chelation therapy. Singh, Neonatal Lead Intoxication in a Prenatally Exposed Infant 93 J. PEDIATRICS 1019 (1978) which deals with a newborn who also suffered fetal lead exposure and underwent successful chelation therapy at three weeks of age.

[n160.] There are several different types of treatments for childhood lead poisoning. The most traditional one, chelation therapy involving intramuscular injections of EDTA, can produce side effects. However, a more recent treatment involving an oral agent, penicillamine, has proven to be safer and as effective as EDTA, especially for children with low-level lead poisoning. See Vitale, Oral Penicillamine Therapy for Chronic Lead Poisoning in Children, 83 J. PEDIATRICS 1041, 1044 (1973).

In addition, new scientific findings hold promise in further reducing the deleterious effects of lead exposure in the future. One animal study demonstrated that zinc supplements protected male rats exposed to lead, lessening reproductive damage. Saxena, Zinc Protects Testicular Injury Induced by Concurrent Exposure to Cadmium and Lead in Rats, 64 RESEARCH COMMUNICATIONS IN CHEMICAL PATHOLOGY AND PHARMACOLOGY 317 (1989). A study of lead workers found a certain protein binds lead, causing it to take a non-toxic form. The authors explain that this protein may help to reduce lead toxicity. Lolin and O'Gorman, An IntraErythrocytic Low Molecular Weight Lead-Binding Protein in Acute and Chronic Lead Exposure and its Possible Protective Role in Lead Toxicity, 25 ANNALS OF CLINICAL BIOCHEMISTRY 688 (1988).

[n161.] See, e.g., Shannon, Efficacy and Toxicity of D-Pennicillamine in Low-Level Lead Poisoning, 112 J. PEDIATRICS 799, 801 (1988) (the authors utilized penicillamine in the successful treatment of patients as young as one year of age who suffered from lead poisoning); Moel, Slow, Natural Reduction in Blood Lead Level After Chelation Therapy for Lead Poisoning In Childhood, 140 AM. J. DISEASES CHILDREN 905 (1986) (physicians discuss using chelation therapy to cure infants aged fourteen months and older of lead poisoning).

[n162.] See Timpo, supra note 157, at 766.

[n163.] However, it should be noted that there are limits to the effectiveness of chelation therapy in acute cases of lead poisoning. For example, one expert states that 25% of all young children with acute lead encephalopathy or recurring lead poisoning suffer permanent damage, even if they undergo chelation treatment. Chisolm, Management of Increased Lead Absorption and Lead Poisoning in Children, 289 NEW ENGLAND J. MED. 1016 (1973).

[n164.] Johnson stated that its male workers were not subject to hazards while exposed to 50 ug/dl, the maximum set forth in the OSHA standard. Johnson, 886 F.2d at 889.

[n165.] See supra notes 27-28 and accompanying text.

[n166.] See supra note 27 and accompanying text.

[n167.] Johnson, 886 F.2d at 889. On the other hand, the California Court of Appeals upheld the Commission's use of animal studies in coming to its conclusion that lead at Johnson's plant posed a reproductive hazard to men, Johnson Controls v. Fair Employment and Housing Comm'n, 218 Cal. App. 3d 517, , 267 Cal. Rptr. 158, 176 (1990). The Commission cited Judge Easterbrook's dissent in Johnson where he noted that sometimes animal studies constitute the best evidence available to analyze the existence of workplace hazards. Id. (quoting Johnson, 886 F.2d at 919).

[n168.] Heywood & James, Current Laboratory Approaches for Assessing Male Reproductive Toxicity: Testicular Toxicity in Laboratory Animals, in REPRODUCTIVE TOXICOLOGY 147 (R. Dixon ed. 1985).

[n169.] J. SCHARDEIN, DRUGS AS TERATOGENS 49 (1976). The author points out that all four drug groups in humans which are known to be teratogenic are also teratogenic to some extent in animals. Id. See also Brief for Appellant at 25 n.10, Johnson 886 F.2d 871 (No. 88-1308), where one of plaintiff's experts explains that animal studies are a means by which researchers can determine whether a chemical will cause any ill effects in humans. But see Williams, supra note 105, at 662 who argues that animal studies are not always reliable, citing thalidomide which displayed different effects in animals and humans.

[n170.] Heinrichs, Current Laboratory Approaches for Assessing Female Reproductive Toxicology, in REPRODUCTIVE TOXICOLOGY 95 (R. Dixon ed. 1985). As to the Seventh Circuit's majority decision dismissing animal studies, Judge Easterbrook in his dissent states, "[T]he medical profession, like the Food and Drug Administration, will be stunned to discover that animal studies are too speculative." Johnson, 886 F.2d at 919.

[n171.] Brief for Amici Curiae American Public Health Association, et al, at 13 n.15 (citing U.S. Congress, Office of Technology Assessment, Reproductive Health Hazards in the Workplace 167 (1985)).

[n172.] Johnson, 886 F.2d at 919. The D.C. Circuit court's decision which upheld the lead standard also found that OSHA could base its findings on animal studies. United Steelworkers v. Marshall, 647 F.2d 1189, 1257 n.97 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981).

[n173.] Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 657 n.64 (1980). The Seventh Circuit ignored this fact.

[n174.] One authority notes that lead is a "confirmed reproductive toxicant," damaging the reproductive tracts of male rats and causing infertility. Schrag & Dixon, Reproductive Effects of Chemical Agents, in REPRODUCTIVE TOXICOLOGY 301, 309 (R. Dixon ed. 1985).

[n175.] Appellant's brief at 18, Johnson, 886 F.2d 871 (No. 88-1308).

[n176.] Id.

[n177.] Id.

[n178.] Id. Silverstein further states that this effect occurred even when the fathers' contact with lead was at a very low level. Id. at 19.

[n179.] Id. at 25.

[n180.] Id. at 26. Other studies cited demonstrate that even at blood lead levels between 14 and 25 ug/dl., lead causes serious reproductive problems to male rats. Id. at 18.

[n181.] See supra note 27 and accompanying text.

[n182.] Some commentators have noted that research concerning possible reproductive hazards of chemicals as a whole, has been focused more on the effects stemming from maternal exposure as compared to those caused by paternal exposure. See, e.g., Williams, supra note 105, at 661. This may be one reason why there is less evidence that male worker contact with lead causes reproductive harms.

[n183.] See, e.g., Rom, supra note 2, at 543-44. It can be countered that the reports from the early part of the twentieth century are constrained by the same problems that Johnson faced when it relied on findings of maternal exposure based on studies from this same period. See supra note 143 and accompanying text. However, industry and most courts have relied on these old reports to establish fetal protection policies banning fertile women workers from employment; they have never used findings from the recent period to similarly exclude male workers.

[n184.] The primary study is the 1975 study by I. Lancranjan, M.D. Lancranjan, Reproductive Ability of Workmen Occupationally Exposed to Lead, 30 ARCH. ENVT'L HEALTH 396 (1975). Lancranjan analyzed men occupationally exposed to lead, categorizing them by individual lead levels and found a significant decrease in fertility in both the group of men most exposed to lead and the groups more moderately exposed. These moderate level groups displayed mean blood lead levels of 52.8ug/100 g., and even as low as 41ug/100g. Id. at 397-400. OSHA based its blood lead level standards partially on this study, and the court decision upholding the OSHA standards acknowledged the results of this study. United Steelworkers v. Marshall, 647 F.2d 1189, 1257 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981). The California Fair Employment court also relied on this study in ruling against Johnson's fetal protection policy. Johnson Controls v. Fair Employment and Housing Comm'n, 218 Cal. App. 3d 517, 267 Cal. Rptr. 158, 167-169 (1990). But see the defendant's Hammond affidavit in Johnson, which claims that Lancranjan's study is flawed. Appellant's Brief at 15, Johnson, 886 F.2d 871 (No. 88-1308).

[n185.] Assennato, Sperm Count Suppression without Endocrine Dysfunction in Lead-Exposed Men, 41 ARCH. ENVT'L HEALTH 387, 389 (1986).

[n186.] Rodamilans, Lead Toxicity on Endocrine Testicular Function in an Occupationally Exposed Population, 7 HUM. TOXICOLOGY 125, 128 (1988).

[n187.] Infante & Wagoner, The Effects of Lead on Reproduction, in CONFERENCE ON WOMEN AND THE WORKPLACE 235 (E. Bingham ed. 1976). See also Appellant's brief at 20-22, Johnson, 886 F.2d 871 (No. 88-1308). The plaintiffs' experts also enumerated studies demonstrating the existence of these hazards to male lead workers. One expert cited a National Institute of Occupational Safety and Health Study where male workers who displayed blood lead levels in the range of 25-44 micrograms suffered a 25% loss of fertility. Id. at 21.

Studies have also shown that lead presents significant nonreproductive hazards as well to male workers. See Brief for Amicus Curiae at 6-7, Johnson, 886 F.2d 871 (No. 88-1308).

[n188.] The EEOC also disagrees with the Seventh Circuit Johnson decision, and issued an internal memo instructing its field officers not to follow the decision when ruling on fetal protection cases outside of the Seventh Circuit. The memo stated that an employer using such a policy would have to show that he also protects male workers from the reproductive hazard in question. See EEOC Policy Guidance on Seventh Circuit Decision in United Auto Workers v. Johnson Controls, Inc., Daily Lab. Rep. (BNA) No. 18, D-1 (Jan. 26, 1990).

[n189.] See supra note 128 and accompanying text. See also Zuniga v. Kleberg County Hosp., 692 F.2d 986, 988, 992 (5th Cir. 1982); Doerr v. B.F. Goodrich Co., 484 F.Supp. 320, 325-26 n.3 (N.D. Ohio 1979).

[n190.] Zuniga, 692 F.2d at 998, 992 and Doerr, 484 F. Supp. at 325-326 n.3. It was reported that the British companies which distributed thalidomide paid $ 50 million in damages due to the drug's effects. See Scott, supra note 24, at 9.

[n191.] Security Nat'l Bank v. Chloride, Inc., 602 F. Supp. 294 (D. Kan. 1985). But see Family Health Council, supra note 142, at 175, which states that there have been out of court settlements to injured children paid by dioxin companies.

[n192.] See Paul, supra note 101, at 274, explaining that 71% of the companies surveyed which utilized reproductive toxins had no such policies.

[n193.] See Becker, supra note 13, at 1244.

[n194.] Ashford & Caldart, The Control of Reproductive Hazards in the Workplace: A Prescription for Prevention, 5 INDUS. REL. L. J. 523, 555 (1983).

[n195.] Id.

[n196.] Id.

[n197.] See W. PROSSER, LAW OF TORTS, 336-338 (4th ed. 1971).

[n198.] This action can be brought by a child alleging that if the employer had given the parent the proper warning about a possible fetal hazard the parent could have taken proper precautions as to birth control, and the child would not have been born. See Bernier, Mothers as Plaintiffs in Prenatal Tort Liability Cases: Recovery for Physical and Emotional Damages, 4 HARV. WOMEN'S L. J. 43 (1981). This type of action could act as an incentive to employers to obtain up-to-date, correct knowledge about workplace fetal hazards and to properly warn their employees.

[n199.] See, e.g., Becker, supra note 13, at 1244. Most jurisdictions would not allow a worker to waive recovery from negligent acts. Id.

[n200.] Family Health Council, supra note 142, at 163. Even if waivers were acceptable, many ethical and policy issues would be raised by the idea of a parent waiving her right or the right of the unborn child, to sue an employer if a child is born injured due to the parent's chemical exposure. For example, an employer informs a woman worker that there was only a five percent chance that contact with lead during pregnancy could cause fetal deformities. She then knowingly waives her rights to sue and subsequently gives birth to an injured child. Is the slight risk of a serious birth defect less important than the fact the woman needs a good-paying job? Certainly her economic situation would be worsened if she could not recover damages from the employer for her child's deformities. In addition, society may want to discourage waivers, considering it more advantageous that the company pay for the costs of the injuries; the company certainly having more resources than the worker parent.

[n201.] One commentator has noted that even if a company has followed the OSHA standard, the company would still be liable to a child deformed as a result of parental toxic exposure. Id. at 171.

[n202.] Lead, for instance, can cause infertility problems, genetic damage, stillbirths and premature births, among other problems. OSHA lead standard, 29 C.F.R. § 1910.1025 app. B 862 (1988).

[n203.] See Williams, supra note 105, at 657.

[n204.] In some jurisdictions plaintiffs may have to prove postconception injury. Comment, Fetal Protection Policies, supra note 17, at 763 n.42.

[n205.] See Centers for Disease Control, Smoking-Attributable Mortality and Years of Potential Life Lost-United States, 1984, 36 MORBIDITY AND MORTALITY WEEKLY REPORT 693, 694 (1987) [hereinafter Smoking], which states that 2,500 children die annually due to their parents smoking. See also, FETAL ALCOHOL SYNDROME AND OTHER EFFECTS OF ALCOHOL ON PREGNANCY OUTCOME (Sixth Special Report to the U.S. Congress on Alcohol and Health) (1987) [hereinafter Fetal Alcohol Syndrome].

There are also other prenatal considerations. Studies have demonstrated that stress in pregnant women causes more lead to be released to the fetus. Lead: Effects of Exposure Extend from Before Birth Through Old Age, EPA Scientist Tells Risk Group, 13 CHEM. REG. REP. (BNA) 10 (April 7, 1989). In addition, poor personal hygiene would raise the worker's blood lead levels, increasing the risk to offspring. See ENCYCLOPEDIA OF OCCUPATIONAL HEALTH AND SAFETY, supra note 10, at 1203.

[n206.] See Smoking and Fetal Alcohol Syndrome, supra note 205. See also supra note 202 and accompanying text.

[n207.] Drinking Water: EPA Study Shows 40 Million People at Risk from Lead Levels Exceeding Proposed Standard, 17 ENV'T REP. (BNA) 1171 (1986). In addition, sometimes other sources of lead can prove to be fetal hazards, such as pesticides. In 1988, the EPA was concerned because citrus growers were using lead arsenate on their crops which some groups claimed was a health risk, especially to children and the unborn. Pesticides: Use of Existing Lead Arsenate Stocks Quickest Method to End Use, EPA Says, 12 CHEM. REG. REP. (BNA) 287 (1988).

In dealing with the issue of proving causation, it can be useful at this point to examine a simple scenario. A parent smokes, or drinks alcohol or water containing lead, and also works in a plant where there is exposure to lead. A child is born deformed, the injuries may stem from prior parental workplace contact, from the parent's smoking or drinking, or from both. In a traditional tort claim, the child would have a difficult, if not impossible, task proving the exact source of his injury.

[n208.] Lead: Major Environmental Problem Indicated by Atsor Report on Childhood Lead Poisoning, 12 CHEM. REG. REP. (BNA) 576 (1988). There are other postnatal hazards as well. For example, a nursing mother exposed to a chemical such as lead will pass the toxin to the infant through her breast milk. See J. STELLMAN, supra note 131, at 165. In addition, the child can be affected by parents' lead-infested clothing in the home, causing the child's blood lead levels to rise. See Stellman, supra note 150, at 80.

[n209.] See supra note 206 and accompanying text.

[n210.] Courts have sometimes dealt with similar complex causation cases by fashioning non-traditional remedies to allow defendants, who are innocent victims, some relief. In Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132 (1980), cert. denied, 449 U.S. 912, the California Supreme Court ruled on a case involving plaintiffs who suffered injuries as a result of maternal ingestion of DES when pregnant. The court held that the plaintiffs could recover from a certain group of DES manufacturers, even though none of the plaintiffs could identify the exact manufacturer who had sold the DES to the respective mother. Id.

[n211.] This can be done by demonstrating that there exist "[a]cceptable alternative policies or practices which would better accomplish the business purpose . . . [of protecting against the risk of harm], or accomplish it equally well with a lesser differential . . . impact [between women and men workers]." Wright v. Olin, 697 F.2d 1172, 1191 (4th Cir. 1982) (quoting Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir.), cert. denied, 404 U.S. 1006 (1971).

[n212.] Johnson, 886 F.2d at 892.

[n213.] Id.

[n214.] For example, Johnson first instituted a volunteer fetal protection policy which did not exclude women from the workplace, but only attempted to educate them as to the reproductive hazards of lead exposure. Johnson Controls v. Fair Employment and Housing Comm'n, 218 Cal. App. 3d 517 , 267 Cal. Rptr. 158, 177 15 (1990). In dicta, the court said that it approved of this type of fetal protection policy. Id. at n.16. These limited policies should be based on sound scientific research regarding the effects of a chemical on both genders. Additionally, industries could be mandated to use limited policies only while they seek acceptable alternatives to all fetal protection policies. See Williams, supra note 105, at 699.

[n215.] See Scott, supra note 127, at 187. Scott's recommendation provides that workers of either gender attempting to conceive, take a leave from a job where they are exposed to a reproductive hazard. But, salary and benefit protection is also necessary.

[n216.] Workers exposed to lead could use either of these options in following the OSHA lead standard at the Johnson plant. The standard suggests that if a worker desires to conceive, the blood lead level should be kept below 30 ug/dl. 29 C.F.R. § 1910.1025 app. C (II) (5) (1989). Johnson remarks that it is not possible to technologically lower the level of lead exposure in its battery manufacturing units. Johnson, 886 F.2d at 892.

[n217.] See Becker, supra note 13, at 1264.

[n218.] There have been allegations that employers have not been making decisions based on sound scientific knowledge, and that the courts lack the expertise to evaluate scientific evidence. See Paul, supra note 101, at 271, 277. In this survey, only 40% of all companies which exposed workers to reproductive hazards actually were aware of the hazardous exposure. On the other hand, many companies which exposed men as well as women to chemicals potentially harmful to the offspring of both genders had fetal protection policies which applied only to women. Id. See Buss, supra note 17, at 591. See also, Becker, supra note 13, at Appendix, where the author analyzes the scientific evidence in Hayes and finds that the court misunderstood and incorrectly applied the radiation standard, one of the key elements in the case.

[n219.] 29 U.S.C. § 654(a)(1) (1988). See generally, Lewis, OCAW v. American Cyanamid: The Shrinking of the Occupational Safety and Health Act, 133 U. PA. L. REV. 1167 (1985). But see J. STELLMAN, supra note 131, at 185 who argues that OSHA generally does not do a good job of enforcement.

[n220.] See Buss, supra note 17, at 591-598.

[n221.] 15 U.S.C. §§ 2601-2629 (1988).

[n222.] But see Family Health Council, supra note 142, at 156, which concludes that the workers compensation system is not set up to handle toxic tort cases, citing the asbestos lawsuits which the plaintiffs brought in the regular civil court system.

Another consideration is that even if these injured children could bring their cases within the workers compensation system they would still have the troublesome task of proving that a workplace hazard caused their deformities. See supra notes 202-210 and accompanying text.

[n223.] However, this would not be an all-encompassing solution in industries where workers are exposed to chemicals like lead which are reproductive hazards for men as well as women.

[n224.] See Becker, supra note 13, at 1234. She also notes that many companies have instituted mandatory drug testing, including some of the same employers who have fetal protection policies. Id. at 1234 n.74.

[n225.] See Williams, supra note 105, at 697.

[n226.] Id. at 698-699. The author specifically suggests that companies work on reducing the levels of toxic exposure. Id. at 700. Another commentator suggests that industry develop replacements for toxins, and that agencies like the EPA could provide the impetus for this to happen by banning toxic substances. See Buss, supra note 17, at 594 n.102.

[n227.] Williams notes that if plaintiffs and defendants argue about what costs are too exorbitant, or whether alternatives are technologically feasible, then these issues may have to be litigated. Williams, supra note 105, at 699.

[n228.] In 1978 Congress passed the Pregnancy Discrimination Act. It did so in part because the Supreme Court had ruled that discrimination against pregnant women in certain cases did not constitute sex discrimination. This is analogous to most of the fetal protection policy cases where a majority of the courts have ruled that they do not violate Title VII. Congress could therefore pass another law saying that these policies do violate Title VII. See Comment, Fetal Protection Policies, supra note 17, at 768-769.

[n229.] 29 C.F.R. § 1910.1025 (j) (1989).

[n230.] 29 C.F.R. § 1910.1025 (j)(2) (1989).

[n231.] 29 C.F.R. § 1910.1025 (j)(3) (1989).

[n232.] 29 C.F.R. § 1910.1025 (f)(g) (1989).

[n233.] 29 C.F.R. § 1910.1025 app. B. (VIII) (1989). As mentioned previously, chelation therapy works best on victims of lead poisoning who do not yet suffer from acute symptoms. See Chisolm supra note 163, at 1016. Therefore, it is crucial that industries monitor their employees often so that treatment, if necessary can be effective.

[n234.] See supra notes 157-162 and accompanying text.

[n235.] The OSHA standard contains a warning that this treatment could have side effects. 29 C.F.R. § 1910.1025 app. B (VIII) (1989). However, there have been recent studies which hold promise for the continued development of safer treatment for lead poisoning. See supra note 160 and accompanying text, which discusses the use of an oral cheating agent on infants. This is safer than intramuscular chelation treatment, and is effective on children with low-level lead poisoning.