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Women head 848 of all single parent households.

While the

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

18.

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-
charge of her maternal functions having
in view not merely her own health, but the
well-being of the race justify legislation
to protect her.

The limitations
upon her contractual powers, upon her right
to agree with her employer as to the time she
shall labor, are not imposed solely for her

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

121

to future children can only occur through maternal exposure.

This is, of course, exactly what Title VII was intended to

prevent

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

13/

only a small number of women workers will have children after

age 34.

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,

women

workers who were pregnant during a one year period"

comprised about 8.8% of the estimated

(population of]

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

17 /

were unwanted.

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

18_/

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

exposures.

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

18

/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,

960.

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
may cause genetic damage in the egg or
sperm cells before conception and which
can be passed on to the developing fetus.
The record indicates that genetic damage
from lead occurs prior to conception in
either father or mother. The result of
genetic damage could be failure to im-
plant, miscarriage, stillbirth, or birth
defects. Based on the entire record,
OSHA has reached the following conclusions
regarding the reproductive effects of
lead exposure:

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).

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