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Dr. OMENN. And it even said six times higher. The basis of those numbers requires some considerable scrutiny. However, they are really in the same ballpark as I recommended.

Mr. GORE. Or think they are.

Dr. OMENN. Or think they are, exactly I suspect this concept of the marginal risk wasn't adequately appreciated in the discussion. The discussion was quite explicit, there's no doubt of that; but I think upon reflection they might like to reconsider the respone.

Mr. GORE. Well, I hope so, but the considered response of the counsel present-not the medical director but the counsel-was that somewhere between 2 and 5 percent would begin to give the company some problems if they didn't do it.

Dr. OMENN. As you brought out, from a legal point of view, any risk-any risk which could be diminished by action the company might take-can be perceived to be in their interest and the interest of the particular worker that might be protected.

The problem is relating the potential benefit to the particular worker, to the population effect on many different workers and prospective workers. That's really the challenge.

Mr. GORE. And the problem is incurring liability if it's not done, which is where the pressure comes from.

Dr. OMENN. This is our general problem with defensive medicine. The Bureau of Radiological Health of the FDA has published in the last 2 months two documents which may be of interest to the committee with regard to this hearing. One is specifically on the low-back X-ray examination, in which they cite Dr. Rockey's work and work from the industry. The other is on the use of skull Xrays. As you know, anybody who's brought into the emergency room who has the slightest history of having his head in the vicinity of the accident, if an X-ray was not done, the hospital is defenseless against a later charge of missing neurological damage. Therefore there has been a tremendous increase in use of skull Xrays, despite a very poor predictive value. I refer those two documents to you: Your staff can obtain them.

Mr. GORE. OK. Well, thank you very much. It's been an interesting hearing, an interesting day, and we will go back into session tomorrow at 9 a.m. in this room.

I'd like to close with special thanks to the two participants who formed our last panel here and all the witnesses who have come today to help us out. Thank you.

[Whereupon, at 1:15 p.m., the hearing was adjourned.]





Washington, D.C. The subcommittee met, pursuant to call, at 9 a.m., in room 1328, Longworth House Office Building, Hon. Albert Gore, Jr. (chairman of the subcommittee) presiding.

Mr. GORE. The subcommittee will come to order.

I would like to welcome our witnesses and others today. Yesterday we heard testimony on the economic incentives to conduct preemployment screening and the legal and ethical issues which invariably arise from such programs.

Such screening is designed to identify those portions of the work force which are at highest risk—those most susceptible to occupational disease.

The subcommittee heard testimony which questioned the capacity of many such screening programs to accurately identify a hypersusceptible segment of the population.

Among the points raised by the witnesses was the multi-factorial nature of occupational disease and the difficulty of selecting a single factor which could provide a meaningful basis for estimating an employee's vulnerability to illness.

The subcommittee also heard considerable testimony concerning the rights of job applicants and employees who are identified by such screening programs as belonging to a high-risk group.

There was considerable concern expressed that such screening could tend to supplant more expensive improvements in the quality of the workplace—that industry might attempt to modify the composition of the work force to fit existing environments rather than modify the environment so that it is safe for all employees.

Finally, we heard important testimony concerning new genetic screening techniques with which some industries in the recent past have experimented.

Although this technology is still in its infancy, it looms large on our horizon.

It is clear that we must consider industrial screening as one of the major potential human applications of our exponentially expanding knowledge of genetics.

Today, we turn to an extremely difficult example of workplace screening-the removal of fertile women from certain jobs which pose reproductive hazards.

In January 1978, the American Cyanamid Co., determined that all fertile women would be removed from exposure to certain toxic substances at its Willow Island, W. Va. facility.

The policy arose out of corporate concern that such toxins posed reproductive hazards and that exposed women would give birth to children with birth defects.

Because direct injury to the fetus can occur early in development when the mother might be unaware that she is pregnant, the company elected to exclude from such employment all women who could not show that they were incapable of bearing children. Five women subsequently underwent sterilization.

In January 1980, 13 women and their labor union brought an action against American Cyanamid under title VII of the Civil Rights Act of 1964, alleging sex discrimination.

This case illustrates yet another series of difficult problems which arise out of industrial genetic screening.

Sex is perhaps our most obvious genetic characteristic. It requires no sophistication to detect. We all literally wear our genetic markers.

Thus, we leave for the time being the issue upon which we focused yesterday—the availability of techniques to detect genetic sources of susceptibility and the accuracy of such methodologyand turn instead to industry's response to knowledge of genetic vulnerability.

Today, we will ask whether the removal of fertile women from the workplace effectively carries out the protective purposes upon which such removal was based.

Does it eliminate the potential reproductive hazards of the workplace? Are there other high-risk groups which the policy does not protect?

Specifically, are the fathers of children the male members of the work force-also capable of transmitting the harmful effects of these toxins to the fetus later conceived?

Finally, are there any alternatives available to companies whose workers are exposed to reproductive hazards?

Before beginning, I would like to recognize the ranking minority member, Mr. Walker.

Mr. WALKER. Thank you, Mr. Chairman. I have no opening statement and look forward to hearing witnesses.

Mr. GORE. Our first witnesses will appear as a panel, Ms. Joan Bertin, from American Civil Liberties Union, Dr. Vilma Hunt, from Pennsylvania State University, and Dr. Jeanne Stellman of Columbia University.

We are delighted to have you here this morning. Without objection, the entire text of the fine written statements you provided will be placed in the record in full.

Mr. GORE. We invite you to present all or a summary of your statements at your own choosing and we will begin with Joan Bertin.



Ms. BERTIN. Thank you, Mr. Chairman. In the course of sitting in my office in New York City, I have heard a number of scary stories in the last couple of years, one of which you just recounted, that having to do with five women workers at American Cyanamid plant at Willow Island, who submitted to a sterilization operation in order to retain their employment.

Those women alleged they were threatened with termination of employment if they did not become sterilized.

I also heard of the following examples. A woman welder was denied entry to a worksite in Florida because she might be exposed to lead. She was not pregnant. She was not married, and she did not intend to have a child.

However, she was fired because there was no other employment for her.

Two women submitted to sterilization operations to keep jobs in which they were exposed to fluorocarbon 22. The employer had imposed this requirement on the basis of a study which was subsequently shown to be invalid.

Another woman was denied promotion to a job because her new job would expose her_to vinylchloride, a known carcinogen to adults of both sexes. The reason for her exclusion was fear of injury to a fetus.

However, this woman was also single and had no intention of becoming pregnant.

A final example is a case of a woman widow with a grown son who applied for a job in which she would be exposed to coal tar. She was told she would not be hired because she was of childbearing capacity. She said, “I have no intention of having any more children. In fact, I am willing to submit to a tubal ligation in order to obtain this job. I have been unemployed for 6 months."

She was told if she got sterilized in order to get the job, she would not be hired.

Mr. GORE. Is that because the company was afraid then they might be accused of having required the sterilization?

Ms. BERTIN. I presume so. These case examples demonstrate the many varieties in which exclusionary policies have appeared. They have appeared around the country and they pose an agonizing dilemma for woman workers. That is, if you want to be employed or if you want to be promoted, you may have to become sterilized.

I talked to women who did, in fact, become sterilized in order to keep their jobs and I can tell you that the choice for them was, in fact, one of the most painful and terrible ones.

They made the choice only because they thought they could not provide for their families unless they did so and they felt that this responsibility superseded the responsibility they might have to themselves.

What we also know as a result of these stories that essentially filter in-we have no exact count of how many cases there are-is that many jobs are affected.

One commentator suspects it is 100,000 jobs. I think it must be considerably more than that because when we look at the industries involved, and when we look at the corporations which employ these policies, we know there must be far beyond 100,000 jobs involved.

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I think this dilemma has to be viewed against some important facts. First of all, even on their own terms, these policies are grossly overbroad. The policies are geared toward protecting pregnant women or the fetus, but most women workers are not pregnant at any given point in time.

In fact, approximately 8.8 percent of the female labor force is pregnant on an annual basis.

I believe that that figure would be even lower in blue-collar occupations, which are the jobs we are primarily talking about, because in such occupations women tend to have their children earlier in life and then to go to work and to cease their childbearing after the age of approximately 35.

The second fact is the vast majority of births are planned and are wanted in this country. Census data says that among women with high school diplomas, only 9.8 percent of all births are unwanted.

As a third fact, we have to recognize that women workers bear heavy economic responsibilities for themselves and their families60 percent of all women between the ages of 18 and 54 work.

That is to be compared with a figure of 88 percent for men. Those are 1979 figures. The Department of Labor estimated in 1978 that two-thirds of all women who work had sole responsibility for their own maintenance or that of their families, or that they supplemented family incomes of less than $10,000.

Once again, there is a graphic illustration of this among the women who are actually subjected to these policies. Among the women at American Cyanamid who did become sterilized, they have reported and testified at depositions that prior to becoming employed at this chemical plant, they had worked for minimum wage. They had been employed as waitresses, stock clerks, grocery store checkout clerks, and similar kinds of jobs which paid, at best, minimum wage.

Many of these women went from subsidized income, meaning welfare level, to earning $15,000 or more per year.

And one woman who had a high school diploma, said to me in a very poignant moment, “Who would have ever thought I could make $15,000 a year?”

So, to the extent that exclusionary policies assume, one, that women's primary role between the years of 18 and 50 is childbearing or, two, that women workers do not or cannot control when and if they become pregnant or, three, that their employment interests are dispensable, these polices are based on reflective and stereotypical thinking that bears absolutely no relation to reality.

A second important fact is that these policies don't achieve their ostensible goals because they fail to take into account similar risks and similar liabilities to the future children of male workers.

I will defer to my scientific colleagues to amplify on this point, but I simply will summarize what my understanding of the science is.

There are many workplace conditions and substances which threaten genetic damage and other kinds of alterations in sperm

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