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Good Morning.

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

importance

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

both

male and female - of their civil rights; at the same time they

fail to address the real problem of reproductive hazards in

the workplace.

Such policies are particularly invidious be

cause they distinguish among workers on the basis of an

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children

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.

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ever,

this would seem to be an extremely low estimate given

alone

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

forms:

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.

One

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

employment practices.

This pattern appears consistently:

exclusionary

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

6:1

average earns less than a man with an 8th grade education.

The wage gap is surely attributable to many factors.

One

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.

My experience

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

wage scales.

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.

Some

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

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are designed to "protect" women from employment which allegedly may pose some hazard to a potential fetus.

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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,
March 1979, Special Labor Force Report 237, U.S. Dept. of
Labor, Bureau of Labor Statistics, Jan. 1981, Table 4,
"Labor Force Status of Women 16 Years and Over, by Marital
Status, and Presence and Age of Youngest Child, March, 1979."

8 /Perspectives on Working Women: A Databook, U.S. Dept. of
Labor, Bureau of Labor Statistics, Oct. 1980, Bulletin 2080,
Table 64, "Poverty Status in 1978 of Women and Men by Age
and Years of School Completed, March 1979."

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