ISHN

Inform employees of risks to unborn children

February 1, 2013
In 1991, the U.S. Supreme Court ruled in UAW v Johnson Controls that Title VII of the 1964 Civil Rights Act, as amended by the 1978 Pregnancy Discrimination Act (PDA), forbids sex-specific fetal-protection policies.  The crux of the case involved OSHA’s lead standard and Johnson Controls decision to bar women from working with lead if they were capable of bearing children. In a nutshell, the Supreme Court unanimously agreed employers couldn’t do that.  

The takeaway on Johnson Controls by employers centered on these three opinions issued by the court:

1. With the PDA, Congress made clear that the decision to become pregnant or to work while being either pregnant or capable of becoming pregnant was reserved for each individual woman to make for herself.

2. Decisions about the welfare of future children must be left to the parents who conceive, bear, support and raise them, rather than to the employers who hire parents.

3. If under general tort principles, Title VII bans sex-specific fetal-protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best.

Johnson Controls argued that more than 40 States recognized a right to recover for a prenatal injury based either on negligence or on wrongful death. Avoidance of situations that could create a lawsuit with huge expense was a major factor in Johnson’s policy that workers that could become pregnant should not work with lead. The court opinion that negligence should be downplayed was based primarily upon the evidence that OSHA established through the lead standard a series of mandatory protections which, taken together, “should effectively minimize any risk to the fetus and newborn child.” 

Court’s chilling effect and legal chatter

The Supreme Court’s ruling that banned fetal-protection programs essentially removed workplace risk to the unborn child from industry’s radar. The court’s words seemed clear: Risks to unborn children were a parent’s decision and if the employer fully complies with OSHA standards there is limited concern for tort liability. 

Although there was silence on the issue within industry, legal chatter picked up.  More than 900 law review articles were published covering the many varied and complex issues contained within the Johnson Controls case.  Chatter centered around the theme that the Supreme Court only settled the narrow point on workplace sex discrimination and left many ethical, moral, and safety and health issues unresolved.

Effect of time

The wisdom of the Supreme Court held true for the decade following the Johnson Controls ruling.  Time, however, chipped away at the foundations of court’s opinions and industry’s silence. 

In February 2002, USA Today published a front page cover story, “Workers take employers to court over birth defects: Workplace hazards worry employers, their children.” Tort liability was no longer remote.

I was interviewed for the story by USA Today reporter, Stephanie Armour. Stephanie found employees were not being told about workplace risks to their unborn children. She asked me why this was so. I explained about industry’s shyness in dealing with these issues; but Stephanie’s repeated question to me was, “Who is responsible for telling employees about workplace risks to unborn children?” 

My stock answer that it is the “employer’s duty” to inform of risks was not sufficient.  Stephanie was looking for workplace titles such as HR manager or safety and health pro.  Stephanie was emotionally connected to the story. It bothered her that somebody, and not some faceless corporate entity, had dropped the ball on this very important topic. I wondered, “Had I had dropped the ball?” Stephanie sparked my efforts to speak out and train when I could on the topic of workplace risks to an unborn child.

Coming attractions

I learned a lot about workplace risks to unborn children since my discussions with Stephanie.  I now believe this much: The complex unresolved issues in the Supreme Court’s 1991 Johnson Controls ruling will arise again soon.  The parallels to issues back then and now are uncanny. 

For example, the large coalition of women’s rights and other groups that formed the “Campaign to End Discrimination against Pregnant Workers” in 1977, that ultimately led to the 1978 PDA, that ultimately led to downfall of corporate fetal protection policies, has mobilized again to push the “Pregnant Workers Fairness Act” that now sits as legislation in the House and Senate.

By year-end “somebody” at every business covered by OSHA’s HazCom standard will have to address risks from a growing number of chemicals that contain the unborn child hazard statement but whose chemicals lack OSHA’s prevention specificity found in the lead standard.  

If an employer finds itself under a prenatal tort challenge, no longer a remote possibility, negligence will be determined in part by how well they fully informed employees of risk and how well they addressed OSHA’s undefined prevention statement “special instructions.”