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Women head 848 of all single parent households.
poverty rate for all families is only 5.5%, it is 41.88 for
single parent families headed by women with children under 107
Thus, women, like men, work out of economic necessity
to support their families; exclusionary policies directly
limit their opportunities in this regard.
However, even if these policies had no such economic,
social and political implications, they would still be
objectionable. Exclusionary policies embody "stereotypes about the 'proper place' of women and their need for special
11/ protection." Orr v. Orr, 440 U.S. 268,283 (1979). They
9 /Marital and Family Characteristics of the Labor Force, supra note 2
Table 1, Number of Earners in Previous Year, by Type of family in March 1970 and March 1979 and by Race, March 1979."
10/A Statistical Portrait of Women in the U.S.: 1978, Current Population Reports, Special Studies, Series P. 23,
No. 100, U.S. Dept. of Commerce, Bureau of the Census, Table 9-10, "Poverty Status of Families, by Sex of Householder and Presence of Family Members Under 18 Yearsold: 1977, 1975, and 1970."
11/Historically women have been subjected to restrictions on their employment originating from a professed concern for their health and the health of their offspring:
(H)er physical structure and a proper dis-
benefit, but also largely for the benefit of all Muller v. Oregon, 208 U.S. 412,422 (1980). It is now recognized that state "protective" legislation denies women equal employment opportunities in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.c. S 2000e, et seq., as amended (("Title VII").
E.g. Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 1225-26 T9th Cir. 1971).
are based on sterotypic and outmoded notions concerning women,
viz., that women are always potentially pregnant and thus
must be treated as if they are always actually pregnant, that
women are unable to prevent pregnancy, that women alone are
responsible for the health of their offspring, and that harm
to future children can only occur through maternal exposure.
This is, of course, exactly what Title VII was intended to
the denial of jobs to a particular person because
of stereotypical assumptions concerning that person's sex.
Nor are these assumptions valid.
Although most ex
.clusionary policies apply to almost all female workers 'for virtually their entire work life, statistics reveal that
only a small number of women workers will have children after
In 1977, only one percent of married blue collar
12/ See pp. 10-15, infra. 13/71.5% of all adult female workers in this country are under age 45, and 87.5% are under age 55. U.S. Bureau of Labor Statistics, Dept. of Labor, Employment and Earnings, January 1981. The effect of such a policy is thus for all practical purposes to exclude almost all women from the jobs in question, unless they are willing to submit to surgical sterilization. 14/0f all women aged 55-59 in the workforce in 1978, almost 70% had had their last child by age 34; more than 90% had had their last child by age 39. U.S. Bureau of the Census, Dept. of Commerce, Population Characteristics 6, Table 15 (1979).
working women aged 30 or over expected to bear a child within
15 / the next year.
According to survey prepared by the
Department of Health, Education and Welfare in 1977,
workers who were pregnant during a one year period"
comprised about 8.8% of the estimated
ever-married women of reproductive age in the labor force at
16 / the time. In the population of women aged 15-44 who have
completed four years of high school, only 9.8% of all births
These facts indicate that the vast majority
of working women are not pregnant at any given point in time,
and that most women plan their pregnancies.
Thus, working women are generally in a very good
position to know when and if they will have further pregnancies. It is reasonable to assume that women who have been fully
informed concerning the possible effects of a toxic substance
15/U.S. Bureau of the Census, Dept. of Commerce, Curren Population Reports, Series P-20, No. 325, "Fertility of American Women: June 1977," Table B, at 3 (1978). 16
/National Center for Health Statistics, Advance Data From Vital & Health Statistics No. 11 (Sept. 15, 1977). 17/U.S. Bureau of the Census, Dept. of Commerce, Statistical Abstract of the United States 67, Table 95 (1979).
on the fetus will take precautions to insure either that
they do not become pregnant or that they will predict and
detect pregnancy at an early stage.
Secondly, and critical to the question of fetal safety
is the fact that the health of a future child can be affected
through both the male and female parent and that the only
effective way to ensure fetal protection is to adopt a neutral
policy which would protect both parents from damaging workplace
A striking example of this proposition involves
lead exposure, to which many exclusionary policies are directed.
The Occupational Safety & Health Administration's
19/ (OSHA) Lead Standard rejected the absolute exclusion of
/Pregnancy can now be detected through a blood test 8 to 10 days after conception. J. Greenhill and E. Friedman, Biological Principles and Practice. of Obstetrics 57 (1974). It is not necessarily true that a fetus is most vulnerable to damage from toxic exposure early in pregnancy, when a woman might arguably not be aware of her pregnancy. OSHA has found that where lead exposure is concerned "the first trimester has not been shown to be the period of highest vulnerability for the fetus." 43 Fed. Reg. 52,959 (1978).
19/The Lead Standard appears at 43 Fed. Reg. 53,007-14 (1978), with minor amendments at 44 Fed. Reg. 5446 (1979), and at 29 C.F.R. s 1910.1025 (1979). The Preamble to the Standard appears at 43 F-d. Reg. 52,952-53,007 (1978), with Attachments at 43 Fed. Reg. 54,354-54,509 (1978).
fertile women, 43 Fed. Reg. at 52,960, and formulated instead
requirements which apply equally to men and women workers who
plan to parent children and approach which not only more
201 effectively protects fetal afety but which is also consis
tent with the terms and spirit of Title VII.
In developing the
Lead Standard, OSHA conducted more than eleven weeks of public
hearings during which expert witnesses from around the world
testified, 43 Fed. Reg. at 52,953; these hearings included "considerable testimony on reproductive effects," id. at 52,
OSHA's conclusions with respect to the issue of fetal
safety were as follows, id. at 52,959-60:
Germ cells can be affected by lead which
20 / See, 43 Fed. Reg. 54,389, 54,393 (1978). Toxic substances can affect the normal development of the fetus at three stages of the reproductive process. Gametotoxins are substances which cause malformations of the egg or sperm prior to conception thereby impairing the exposed individual's ability to conceive a healthy fetus. Mutagens are chemicals that cause alterations in the chromosomal structure of the DNA molecule in the male and female reproductive cells which can be manifested by abnormal fetal development (including birth defects) and genetic defects in later generations. Teratogens are substances which operate directly on the fetus and impair normal growth after conception. Stellman, The Effects of Toxic Agents on Reproduction, Occ. Health & Safety 36,36 (April 1979); Strobino, Kline & Stein, Chemical & Physical Exposures of Parents: Effects on Human Reproduction and Offspring, Early Human Dev. 371,378 (Jan. 4, 1978).