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My name is Joan E. Bertin.
I am an
attorney with the Women's Rights Project of the American Civil
Liberties Union Foundation.
I am grateful for the Subcommittee's
invitation to address you on a matter of significant public
the legal and scientific validity of employment
policies and practices which exclude women of child-bearing
capacity from certain employment opportunities because of a
professed concern for the safety of future generations.
These employment policies are widespread and
threaten to deprive hundreds of thousands of workers
male and female - of their civil rights; at the same time they
fail to address the real problem of reproductive hazards in
Such policies are particularly invidious be
cause they distinguish among workers on the basis of an
which women possess for most of their working lives.
The rationale which underlies these policies, if accepted,
could be extended to rationalize exclusions on the basis of
race and national origin as well.
For all these reasons the
ACLU Women's Rights Project has undertaken a major, long
range effort to oppose the use of exclusionary employment
practices and to encourage industry and government to adopt
other available lawful methods to address legitimate workplace
1! safety and health concerns.
this would seem to be an extremely low estimate given
the fact that approximately 835,000 persons are employed in lead industries al and these industries commonly employ exclusionary practices. While I am unaware of any systematic survey to determine the number of companies having exclu
sionary employment policies directed at women, through first
hand knowledge, and reports in professional journals and the
· popular press,
the following are some of the companies that
have been identified as using these policies in varying
American Cyanamid, General Motors, B.F. Goodrich,
Gulf Oil Corp., Sun Oil, Amax, Bunker Hill Smelter.
1 /We have undertaken extensive research and study on the question of the scientific and legal validity of exclusionary employment practices. Our efforts have also taken the form of direct litigation: we represent, among others, the women who challenge the American Cyanamid Company's exclusionary employment policy; we have appeared as amicus curiae in such cases; for example, the challenge to the olin Corporation's exclusionary policy under review in the United States Court of Appeals for the Fourth Circuit; we engage in public speaking and education to increase the information available to workers, health professionals, lawyers, and others about the scientific and legal aspects of this issue; and we have done administrative advocacy designed to assist federal and state regulators to accommodate the various competing interests and concerns raised by this issue. 2 /Williams, Wendy W., "Firing the woman to Protect the Fetus: The Reconciliation of Fetal Protection with Employment Opportunity Goals Under Title VII," 69 Geo. L.J. 641,647 (1981) (hereinafter "Williams").
3_/The Lead Industries Association recommended the use of such practices in 1974. Id.
You may wonder why jobs with these companies are
important for women.
The answer is simple economics, and the
implications extend far beyond the finances of a few women
workers in each location.
Most of the jobs involved require
no skills or education and pay union-scale wages.
current collective bargaining agreement with which I am familiar provides for a starting hourly rate of approximately $7.25, which excludes shift differentials, incentive pay
and other bonuses.
In contrast, unskilled women workers at
best can ordinarily obtain employment only as waitresses,
grocery store check-out clerks, household workers, or stock
clerks all jobs which at most pay the minimum wage. One client told me that her income tripled when she got a job in a chemical company, and that the difference in salary enabled
her to support her family instead of relying on supplementary
government assistance as she had previously been forced to
do even though she worked full-time.
She and other women
report that these jobs had always been "for men only" until
the federal government required revisions in the company's
This pattern appears consistently:
policies occur in industries and occupations which have
been historically closed to women.
They are almost never
seen in female intensive industries, even where the work
place health and safety issues are similar.
Women earn approximately 59¢ for every dollar
57 earned by men; a woman with a high school diploma on the
average earns less than a man with an 8th grade education.
The wage gap is surely attributable to many factors.
of those factors is womens' inability to obtain certain kinds
of lucrative employment because of employer's assumptions
that it is not "suitable" work for a woman.
representing women who want to work in steel mills, in
chemical plants, in the trucking industry, on construction
sites, and the like, convince me that many women actively
seek such employment, and that many more would actively seek
it if they thought they might be hired.
Even more women
would want these jobs if they were informed of their high
4 /See Williams, supra note 2, at 649. 5 /Perspective on Working Women: A Databook, U.S. Dept. of Labor, Bureau of Labor Statistics, Oct. 1980, Bulletin 2080, Table 52, "Median Annual Earnings of Year-Round Full-time Workers 14 Years and over by Sex, 1955-78.", 6 /The Earning Gap Between Women and men, u.s. Dept. of Labor, Office of the Secretary, Women's Bureau, 1979, Table 8, "Comparison of Median Income of Year-Round Full-Time Workers, by Educational Attainment and Sex, 1977 (Persons 25 years of age and over)."
Exclusionary policies take. various forms.
policies restrict employment of women to those who can present
medical evidence of sterility, making sterility a condition
of employment for women.
Other companies hire no women
at certain locations, presumably to avoid the implication
that they encourage sterilization to qualify for employment.
One company refused to hire a fertile woman because she was
fertile but told her they would not consider her application
are designed to "protect" women from employment which allegedly may pose some hazard to a potential fetus.
51% of all women, and 50% of married women over
21 the age of 16 work.
They do so out of economic necessity.
64% of individuals below the poverty level are women.
z/Marital and Family Characteristics of the Labor Force,
8 /Perspectives on Working Women: A Databook, U.S. Dept. of