Abstract
The American Cyanamid Company plant is in Willow Island, West Virginia, on a stretch of the Ohio River crowded with chemical plants. The surrounding area is economically depressed, and the population is heavily dependent on the chemical industry for employment. Between 500 and 600 workers have been employed at American Cyanamid. Their union scale wages lift them substantially above the standard of living of many of their neighbors. Until 1974, this plant employed no women in production work.
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Notes and References
These facts appear as stated in the Second Amended Complaint, Christman v. American Cyanamid Co., Civ. Action No. 80–0024(P) (N.D.W.Va.).
This citation was ultimately sustained with regard to the employer’s failure to provide adequate training on use of respirators. The company contended that the government had failed to prove exposures above the permissible levels because it had not taken readings inside respirators, and prevailed on that argument, notwithstanding the ironic result of the two diverse holdings. An appeal was taken and the case was ultimately settled. Secretary of Labor v. American Cyanamid Co., OSHRC Docket No. 79–2438.
Regarding risks of low-level lead exposure, see 43 Fed. Reg. 52,952–53,014 (1978) and 50 Fed. Reg. 9386–9408 (1985).
See 45 Fed. Reg. 7514 (1980) and 46 Fed. Reg. 3916 (1981).
American Cyanamid Co., Olin Corp., General Motors, Gulf Oil, B.F. Goodrich, and Globe Union have been the subject of court or administrative proceedings challenging their policies. Dow, DuPont, and BASF Wyandotte have publicly described theirs. Allied Chemical, Bunker Hill Smelting, St. Joseph Zinc, Eastman Kodak, and Firestone Tire and Rubber have been identified by press and commentators as maintaining such policies. Documents produced by the American Cyanamid Co. in litigation also identify Union Carbide and Monsanto as having maintained exclusionary policies.
Minutes of the Environmental Health Committee of the Lead Industries Ass’n, Inc., Sept. 9, 1974, cited in Stellman, J., Women’s Work, Women’s Health, p. 178 (1977).
In 1977, only one percent of married blue-collar working women aged 30 or over expected to bear a child within the next year. U.S. Bureau of the Census, Dep’t of Commerce, Current Population Reports, Series P-20, No. 325, “Fertility of American Women: June 1977,” Table B, at 3 (1978). The average woman in this country will bear only two children, and working women have fewer children than nonwork-ing women. U.S. Bureau of the Census, Dep’t of Commerce, American Women: Three Decades of Change, pp. 6–8 (1983).
This does not imply that the fetus is never at increased risk, but only that an unsupported assumption to that effect is invalid.
Toxic substances can affect the normal development of the fetus at three stages of the reproductive process. Gametotoxins are substances that cause malformations of the egg or sperm prior to conception thereby impairing the exposed individual’s ability to produce a healthy fetus. Mutagens are chemicals that cause alterations in the chromosomal structure of the DNA molecule in the male and female reproductive cells that can be manifested by abnormal fetal development and genetic defects in later generations. Teratogens are substances that operate directly on the fetus and impair normal growth after conception. Stellman, The Effects of Toxic Agents on Reproduction, Occupational Health and Safety 36, 38 (April 1979); Strobino, Kline, and Stein, Chemical and Physical Exposures of Parents: Effects on Human Reproduction and Offspring, Early Human Development 371, 378 (Jan. 4, 1978).
U.S. Dep’t of Labor, Protecting People at Work: A Reader in Occupational Safety and Health, pp. 305–307 (1980).
50 Fed. Reg. 1123 (1985). The male spermatozoa may be particularly sensitive to chemical and other injury. The testes, vulnerably located in the scrotal sack outside the body, are the “sperm factories,” where sperm are constantly being produced. It takes about 72 days for each sperm to mature through the type of cell division called meiosis, known to be one of the body processes most susceptible to chemical toxicity. Exposure of men to chemicals or physical hazards such as radiation may result in mutations in sperm (changes in the hereditary information they carry); may cause sperm deformities, slow movement of sperm, or reduction in sperm numbers; may affect hormones essential to reproduction; and may alter sexual behavior.
43 Fed. Reg. 52959–52960 (1978) (emphasis added). Recent evidence indicates that adult males may be at particular risk for cardiovascular disease from exposure to low levels of lead. See 50 Fed. Reg. 9386–9408 (1985).
United Nations Scientific Committee, Sources and Effects of Ionizing Radiation, p. 9 (1977).
EPA, Report of the Teratology Policy Workgroup, May 1, 1985, p. 25; Inside EPA Weekly Report, Vol. 6, No. 27, pp. 11–13 (July 5, 1985). See also Council on Environmental Quality, Chemical Hazards to Human Reproduction (1981) and Office of Technology Assessment, Reproductive Health Hazards in the Workplace (1985) for examples of other workplace hazards to male reproductive and sexual health.
NIOSH Current Intelligence Bulletin 39 (May 2, 1983), Glycol Ethers, 2-Methoxyethanol and 2-Ethoxyethanol.
J. La Dou, Ed., State of the Art Reviews: Occupational Medicine: The Microelectronics Industry (1986).
See, e.g., Butterfield, B., “Experts Say Research Raises Questions,” Austin American Statesman, Feb. 22, 1987, p. HI, col. 1; Schmitt, C. H., “Group Won’t Conduct Chip-Miscarriage Study,” San Jose Mercury News, Mar. 6, 1987, p. 13E, col. 1.
U.S. Dept. of Labor, Protecting People at Work: A Reader in Occupational Safety and Health, p. 273 (1980).
E.g., Doerr v. B.F. Goodrich Co., (N.D. Ohio, Civ. Action No. 81–1745).
43 Fed. Reg. 54415 (1978).
Id. at 52954, 54416.1
Id. at 54435.
Many states have laws modeled after the federal laws described here, and in those states many of the following comments apply directly.
The OSH Act contemplates that workplace protection from toxic exposures will be achieved primarily through standard setting. OSHA is empowered to set permissible exposure limits, to require monitoring of the workplace and the individual, and to prescribe medical surveillance and medical removal protection (with rate retention), among other things, in fulfilling the standard-setting obligation. However, the standard-setting process has proved to be slow and laborious: in the first 13 years of its existence, OSHA developed standards for only 23 chemicals. (The Registry of Toxic Effects of Chemical Substances compiled by the National Institute of Occupational Safety and Health (NIOSH) lists some 59,000 chemicals.) Office of Technology Assessment, Preventing Illness and Injury In the Workplace, pp. 226–227 (1984). Some standards have been invalidated as a result of industry challenge, and others are still in litigation. Workers also gain protection under the OSH Act from the Hazard Communication Standard, 29 C.F.R. § 1910.1200, promulgated in 1983, under which chemical manufacturers and importers must provide workers with information about chemical hazards and distributors must do the same for customers.
The Environmental Protection Agency also affects the health of workers through its responsibilities for the protection of farm workers under the Federal Insecticide, Fungicide and Rodenticide Act, its responsibility for the regulation of occupational exposure to ionizing radiation under the Atomic Energy Act, and its general responsibility for the control of pollutants and the transport and disposal of toxic substances. EPA has broad regulatory authority over toxic substances pursuant to the Toxic Substances Control Act (TSCA), which is not specifically designed to regulate occupational exposures but may have implications in the employment context. See n. 36, infra, and accompanying text, for further discussion of the relevance of environmental legislation to exclusionary policies.
While women (or their fetuses) have most commonly been so classified, blacks have also been targeted by some employer medical policies. See, e.g., Severo, R., “Genetic Tests by Industry Raise Questions on Rights of Workers,” New York Times, Feb. 3, 1980 and Office of Technology Assessment, The Role of Genetic Testing in the Prevention of Occupational Disease (1983).
Hayes v. Shelby Mem. Hosp., 726 F.2d 1543 (11th Cir. 1984), Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982), Zuniga v. Kleberg Co. Hosp., 692 F.2d 986 (5th Cir. 1982).
In Zuniga v. Kleberg Co. Hosp., supra, the court found an alternate basis to rule for the plaintiff and thus did not rule on the question of defense.
Neither of these courts explicitly describes the other kinds of risks to male reproductive health which would serve to undermine the validity of a female-specific policy. Heritable injuries clearly qualify, and other injuries such as infertility, damage to sperm, and sterility might also. Hayes indicates that a failure of consistency in overall health protection suggests that a fetal protection policy is a pretext for discrimination.
Although cost is not a defense to overt discrimination, Los Angeles Dep’t of Water and Power v. Manhart, 435 U.S. 702 (1978), these courts did not consider the extent to which costs could be imposed on employers to provide safer workplace conditions as an alternative to exclusion of workers.
741 F.2d 444 (D.C. Cir. 1984).
United Steelworkers of America v. Marshall, 647 F.2d 1189, 1256 n. 96 (D.C. Cir. 1980), cert, denied sub nom. Lead Industries Ass’n, Inc. v. Donovan, 453 U.S. 913 (1981).
Id. at 1238, n. 74 (emphasis in original; citation omitted).
See supra for a discussion of this case.
For example, that portion of a state law providing workers with information about chemical hazards may be preempted while the portion providing information about environmental hazards will survive. See, New Jersey State Chamber of Commerce v. Hughey, 774 F.2d 587 (3d Cir. 1985).
Ohio Manufs. Ass’n v. City of Akron, 801 F.2d 824 (6th Cir. 1986), cert. filed, 55 U.S.L.W. 3544 (U.S. No. 86–1242) (Jan. 28, 1987).
In particular, the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2601, et seq. grants the Environmental Protection Agency broad regulatory authority over chemical substances or mixtures; registration of pesticides comes under EPA jurisdiction pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136, et seq.
Some of the limitations in OSH Act coverage, noted in the Commentary, infra, would be avoided by this approach.
For example, an exemption for use of ferriamicide, a pesticide, was granted on the condition, inter alia, that “[w]omen of childbearing age are prohibited from loading/applying ferriamicide.” 47 Fed. Reg. 46884–46885 (1982). A similar requirement was imposed on users of lindane, 45 Fed. Reg. 83668–83669 (1980); further testing revealed that the fetus was only affected at exposure levels which cause “general toxic effects in the mother.” 48 Fed. Reg. 48514 (1983). During the special review process, EPA required warning labels regarding the possible teratogenic effects of triphenyltin hydroxide (TPTH), even though the pesticide is a potential reproductive hazard for both sexes. See 50 Fed. Reg. 1107 (1985). An exemption was recently granted for certain uses of dinoseb on the condition that “[w]omen of child-bearing age, i.e., under the age of 45, may not be involved in mixing, loading, or any aspect of dinoseb application.” Decision and Final Order Modifying Final Suspension of Pesticide Products Which Contain Dinoseb, FIFRA Docket No. 612, U.S. Environmental Protection Agency, March 30, 1987, p. 4. This occurred notwithstanding EPA’s own findings of multiple toxic effects of exposure, including adverse effects on “the reproductive system of male laboratory animals” and “acute toxicity [at] relatively low doses... when compared with other pesticides.” 51 Fed. Reg. 36634, 36637 (1986). See also 52 Fed. Reg. 11121 (1987).
One possible exception is EPA’s Radiation Protection Guidance, which recommends certain precautions to prevent radiation exposure to the fetus in utero (protection which should arguably be available to all workers) but cautions specifically against discrimination to achieve protection. 52 Fed. Reg. 2822, 2828–2829 (1987).
Adapted from Bloom, Ed., Guidelines for Studies of Human Populations Exposed to Mutagenic and Reproductive Hazards, p. 44 (1981).
For application to environmental laws, this section should be modified to apply to manufacturers, users, distributors, processors, or other commercial actors.
While the main target of these proposals is the employer, most nondiscrimination statutes also make a union liable if it acts “to cause or attempt to cause an employer to discriminate.” See, e.g., 42 U.S.C. § 2000e-2(c)(3).
The present proposal is not confined to a proscription on sex discrimination, since racial and ethnic groups have also been identified as hypersusceptible, and the nondiscrimination principle extends to all such groups.
See Newport News Shipbuilding and Drydock Co. v. EEOC, 462 U.S. 669 (1983).
The private right of action proposal suggested to amend occupational safety and health statutes, supra, would apply to this provision as well.
For a review of the operation of these systems in the area of occupational reproductive health hazards, see Office of Technology Assessment Reproductive Health Hazards in the Workplace (1985). Nancy Gertner’s position paper, “Interference With Reproductive Choice,” in this book, addresses some of the problems in this area.
See Bertin and Henifin, “Legal Issues in Women’s Occupational Health,” in Stromberg, Larwood, and Gutek, Eds., Women and Work: An Annual Review, Vol. 2, pp. 93–115 (1987).
However, many of these problems would be resolved by adoption of a comprehensive Workers’ Bill of Rights. See the end of this position paper.
For example, a worker with a back condition might require a job that does not entail heavy lifting, a worker with a skin sensitivity to a particular substance ought not to have to work with the substance, and a worker with arthritis might need a light duty assignment. In some states, like New York, future risk and safety to self are not defenses to charges of handicap discrimination. Some conditions, such as obesity, may constitute a disability for employment discrimination purposes, even without an underlying medical cause or even though not a disability for purposes of receipt of rehabilitation services under the Rehabilitation Act of 1973.
Similarly, the semiconductor industry faces claims by residents of Santa Clara County, where water supplies have been contaminated by underground waste storage tanks.
This kind of evidence is notably lacking from the trial record in the reported cases on this issue which have gone to trial: EEOC v. Olin Corp. 24 FEP Cases 1615 (W.D.N.C. 1980), affirmed in part, reversed in part, and remanded sub nom. Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982), and Zuniga v. Kleberg County Hosp., (S.D. Tex., Civ. Action No. 77-C-62, Jan. 26, 1981) reversed, 692 F.2d 920 (5th Cir. 1982). See also deposition of Robert M. Clyne, M.D., May 16, 1983, p. 191, in Christman v. American Cyanamid Co., supra n. 1.
Lawsuits brought by male veterans who served in Vietnam and were exposed to the herbicide “agent orange” exemplify this point. Some actions allege birth defects in subsequently born children, miscarriages, and “serious maladies of servicemen.” See e.g., “Five Makers of Agent Orange Charge U.S. Misused Chemical in Vietnam: Companies Replying to Suit, Say Federal Negligence Is Responsible for Any Harm to Veterans and Kin,” New York Times, Jan. 7, 1980, p. A14, col. 1. Male workers at a plant in Renssalaer, New York also allege that their exposure to the herbicide oryzalin has resulted in birth defects in their children. They have filed complaints with OSHA and the Environmental Protection Agency. “Union, Citing Birth Defects, Asks Ban On a Herbicide,” New York Times, Nov. 9, 1979, p. 16, col. 1.
A comparison of male and female occupational exposures preceding live births in 1976 reveals that the occupational exposure per conception is at least twice as great for males as females. The calculation is based on the assumption that the working population procreates at the same rate as the nonworking population, an assumption that is probably far more true for men than for women. Thus, this figure represents a conservative estimate of the differences between male and female occupational exposure per birth. See V.R. Hunt, Work and the Health of Women, pp. 23–24 (1979).
Hayes v. Shelby Mem. Hosp., 726 F.2d at 1553, n. 15.
Placing the burden on employers results in cost shifting, as the increased costs associated with the requirement of a safe workplace ultimately get passed on to consumers. In this way, the product or service more accurately reflects the true cost of production.
Senate Report, No. 95–331, Senate Subcommittee on Labor, Human Resources Committee, p. 11.
I am indebted to Maureen Paul, M.D., and Cynthia Daniels, Ph. D. for their substantial assistance in drafting this section.
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Bertin, J.E. (1989). Reproductive Hazards in the Workplace. In: Cohen, S., Taub, N. (eds) Reproductive Laws for the 1990s. Contemporary Issues in Biomedicine, Ethics, and Society. Humana Press. https://doi.org/10.1007/978-1-4612-3710-5_12
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