which can be carried to future generations of male workers in the form of birth defects and miscarriages and in the form of sterility or decreased fertility. In fact, we know of more examples of men who have complained publicly that their work-place exposures have injured their children. I will give you a couple of examples that I think are wellknown to everyone here. The agent orange situation, of course, is well-known. The Vietnam veterans claim their explosure to agent orange has caused birth defects in their children and other ill health effects for themselves. There are a number of men who work at a plant in Rensselaer, N.Y., who allege their exposure to the herbicide Oryzalin has resulted in birth defects in their subsequently born children. That case is being investigated by EPA at the moment. The birth defects in that situation were of the most severe and heart-rending sort, having to do with serious heart defects and several deaths of young children. Then there are two instances, DBCP and kepone, where the effects were male sterility or decreased fertility. It is interesting to note in both of those instances, once the correlation was established, the substance was banned; the worker was not excluded from the place of employment. Research which has traditionally been directed exclusively at the female role in reproduction is now confirming what those stories suggest; that equal attention must be paid to the male population and that equal harm from male exposure to toxic substances is possible. A final significant background fact is the pattern of implementation of exclusionary policies. These policies have appeared and occurred almost exclusively in industries which have been recently integrated by sex-sometimes, I must add, grudgingly so—and in jobs commonly referred to as nontraditional jobs for women. It is peculiar that even where the same substances or conditions appear in so-called female-intensive industries that rely heavily on women workers, there has not been the same drive to "protect" them out of their employment. For example, radiation. Health care workers are 75 percent women and they are exposed to radiation and a variety of other hazards, yet there is not a similar drive to exclude women from working as laboratory technicians, as X-ray technicians and the like. But women are almost never hired in nuclear powerplants. Women in the textile and apparel industry and women laboratorians and others are exposed to various substances such as toluene and benzene. When they are exposed to those substances in industries that rely heavily on women for employees, they are not excluded. However, when they are exposed to the same substances in chemical plants which have been recently integrated by women, they have been excluded. This rule is not absolute, but there is a compelling pattern that appears. The pattern suggests a protective paternalistic response which may derive from intentional discrmination to keep women out of traditional male domains or which may derive from stereo types and untested assumptions about the proper place of women and their proper role in life. Of course, we have to understand that exclusionary policies are proposed as an alternative to reducing toxic exposures to safe levels. Once again, here we run into another anomoly. Industrial groups say they don't know what is a safe level for the fetus so they have to assume there is no safe level. In other words, there is a zero-risk standard applied to fetal hazards, but where the risk is to the children of male workers or where the risk is to adults of both sexes, a different standard applies. Frequently, industrial groups will claim that there is no conclusive evidence to establish a causal relationship, so there is no need to be concerned. An example of this is reported in the Department of Labor publication, "Protecting People at Work," indicating that in 1973, the Manufacturing Chemists Association has evidence of a correlation between vinyl chloride exposure and a rare and fatal form of liver cancer called angiosarcoma, but it kept that evidence a secret, even from Federal officials, so as to minimize unwarranted speculation. The same point is demonstrated in comments submitted on proposed OSHA standards. Industry inevitably under estimates virtually every hazard, other than the fetal hazards, and consistently opposes the application of more rigorous health standards with regard to adult workers of both sexes and with regard to the potential hazard for male reproductive harm. But where female exposure is concerned, they claim OSHA is not doing enough. Commonly there is no real evidence to support that claim, either. In other words, they are way out ahead of OSHA in protecting the fetus from the hazards of maternal exposure, but they are dragged kicking and screaming into protecting everyone else. I submit legitimate health policies would not display these inconsistencies, and exclusionary policies cannot be viewed as legitimate health policies for that reason. That brings us to the question of what other explanation may be offered. It is no secret that the explanation is fear of future liability. However, that explanation does not quite make sense either, because there is the same potential for future liability to the children of male workers. There are more known instances of adverse affects from paternal exposure than from maternal exposure. Then, there is the same potential for future liability to the community or to consumers, and I probably need only refer to Love Canal and Three-Mile Island. There was a lawsuit brought against the Bunker Hill Smelter for exposure of children in the surrounding area to lead. Finally, let me make an analogy to the use of prescription and over-the-counter drugs. Drugs--like employment-have both risks and benefits. The drug companies make full disclosure of known risks and risks or dangers which have not been fully investigated. It thereupon falls to the individuals involved to weigh the therapeutic value and benefit against the risks. That is a concept that it is very important to keep in mind in trying to formulate a proper resolution here. Drug companies bear the same potential liability as chemical companies with regard to these potential hazards, yet the response has been quite different in the drug industry. There is something wrong with the concept that you can solve the problem of potential liability by violating two Federal laws. The first, of course, is the Occupational Safety and Health Act, which requires employers to maintain a work place free from recognized hazards likely to cause serious physical harm, including fetal hazards, and the second is title VII of the Civil Rights Act of 1964 which prohibits discrimination on the basis of sex. To conclude that an employer can protect itself against potential future liability by violating two Federal statutes, or even one for that matter, suggests two wrongs make a right. As a policy matter, that can't be. As a final and concluding matter, these policies are not necessary because alternatives are available. It is possible to reduce or eliminate many of the risks we are talking about. There may be some cost attached to it, but cost is something which will eventually be integrated into the product produced. Society should be aware of the true cost of producing a product so it can make a determination as to whether or not it is worth it. When I refer to reducing or eliminating risk, I am thinking of not only engineering controls, but of rotating jobs, plans of personal protective devices, voluntary transfer provisions and the like. Where there is an inevitable risk that cannot be eliminated, the employer must inform the employees and provide voluntary counseling, monitoring and testing programs and provide temporary transfers to both men and women while they are planning pregnancies. As a policy matter, we must allow individual employees to make these kinds of choices for themselves and to make their own assessment for risks and benefits with regard to employment. Here let me point out a fact that few people recognize. That is, if a woman is fired during her pregnancy, she may become malnourished, and malnutrition is something very dangerous for fetal development. So it is for the woman or the man to decide whether or not alternative employment is available or whether the duty to the present children requires that he or she remain in a particular job, even though it may pose some sort of risk. If we don't accept this proposition, there is a danger that all kinds of immutable characteristics relating to race and national origin having to do with genetic characteristics could become the basis on which people are permitted to work in one job or another. For example, maybe type A personalities should not have highpressure jobs, because they are prone to heart attacks under stress. Maybe fair-skinned people should not be permitted to work outdoors. This kind of risk/benefit assessment is not at all unusual. People engage in it every day of the week and we all accept it. For example, if you drive your children to school in an automobile, you are engaging in a risky business. If you are over 40 and you elect to have a child, you are running the risk that your child may have Down's syndrome. That is also connected with paternal factors, as well as maternal factors. If you come from a population group which has genetic predisposition to Tay Sachs disease, your child may also have that predisposition. Women who are pregnant drink alcoholic beverages, they smoke cigarettes, and drink coffee. All of those things present some risks. However, life, unfortunately, is not entirely risk free and the individual is in a position to maximize benefits and to minimize risks. That is not a position which is shared necessarily, or under almost any circumstance I can imagine, by the employer. Thank you. [The prepared statement of Ms. Bertin follows:] |