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21 /The Standard establishes the minimum for compliance with the Occupational Safety and Health Act. It does not require an employer to remove men and women workers planning to become parents who have blood lead levels over 30 ug/100 g; nor does it prohibit the removal of others. It does gives such employees the right to insist upon temporary transfers to other jobs and to retain both their wage rates and their seniority during the period of such transfers. 43 Fed. Reg. 53,011-12 (1978). The legality of these provisions has been upheld. United SteelWorkers of America v. Marshall, 647 F.28 1189, 1228-34 (D.C. Cir. 1980) cert. denied sub nom. Lead Industries Assn., Inc. v. Donovan U.S.
49 U.S.L.W. 3964 (June 29, 1981).
In contrast, exclusionary policies assume that only women face reproductive hazards from lead exposure and that the only danger to the fetus occurs in utero. However, with
regard to lead, this conclusion is amply refuted by the volumi
nous public record and findings compiled by OSHA.
Other exposures from which women have been excluded
likewise pose risks to male reproduction and/or the health
of adult workers of both sex. For example, spermatogonia are particularly sensitive to genetic damage from low-level ionizing
22 / radiation. carbon disulfide may pose a danger to the health
23/ of future children of male workers. Vinyl chloride exposure
has been correlated with a rare and fatal form of liver cancer,
22 / See, Report of United Nations Scientific Committee on The Effects of Atomic Radiation, at pp. 9,473. 23 /See, e.g., the President's Council on Environmental Quality, Chemical Hazards to Human Reproduction, S IV at 20-21 and pp. A at 11 (1981); NIOSH, Center for Disease Control, U.S. Dept. of Health, Education & Welfare, Guidelines on Pregnancy and Work 26 (1977) citing NIOSH, Center for Disease Control, U.S. Dept. of Health, Education & Welfare, Occupational Exposure to Carbon Disulfide, Rep. No. 77-136 (1977); A. Hricko with M. Brunt, Working for Your Life: A Woman's Guide to Job Health Hazards s c at 40-41 (1976); Stellman, "The Effects of Toxic Agents on Reproduction," Occupational Health and Safety 36,38 (April 1979). These and other sources suggest that toxic chemicals are rarely sex-specific in their reproductive effects. Williams, supra, n. 2, at 563-65,
a fact which industrial groups concealed "in order to minimize
24/ unwarranted speculation..'" It may also cause genetic damage to sperm cells. The insecticide lindane also presents
26/ a risk of cancer of the liver. Dibromochlorpropane ("DBCP"). and Kepone cause male sterility, among other adverse health
These risks are no less severe than the risks to
which exclusionary policies are addressed, yet some companies have chosen to ignore these provable, known risks to living persons and to protect only against wholly speculative risks to potential future lives. A "zero risk" standard, while
admirable in the abstract, cannot be so selectively and irrationally imposed.
Other factors suggest that vulnerability to repro
ductive injury through male exposure may be increased by
social and biological factors.
Women, particularly those in
'blue-collar occupations, tend to bear children before they
begin to work,
early in their working lifetimes.
Men, on the
24 /U.s. Dept. of Labor, Protecting People At Work: A Reader In Occupational Safety and Health, 273 (1980). 25 /Ibid., at 275. 26./U.S. Environmental Protection Agency, Lindane: Position Document No. 2/3, at p. II-6 (1980). 27/0.s. Dept. of Labor, Protecting People at Work: A Reader
in Occupational Safety and Health, supra note 24. 296,306.
other hand, more often have children after they have worked for
a significant period of time and
have children over a longer
time span. As a result, the years of workplace exposure per childbirth for men is significantly higher than for women.
28/ Where a dose-response relationship exists or where an adverse
affect may result from cumulative exposure, the children
protection can be seen from the complaints of Viet Nam
veterans that their exposure to Agent Orange has caused
20/ birth defects in their children; from male workers' claims
28/This concept was developed by Vilma R. Hunt, Associate Professor of Environmental Health at Pennsylvania State University, formerly Deputy Assistant Administrator of the Office of Health Research, Environmental Protection Agency. Prof. Hunt is in the process of publishing a study containing supporting data.
29/See, e.g. "Five Makers of Agent Orange Charge U.S. Misused Chemical in Viet Nam: Companies Replying to Suit Say Federal Negligence Is Responsible for Any Harm to Veterans and Kin;" N.Y. Times, Jan. 7, 1980, S A, p. 14, col. 1.
that their exposure to the herbicide oryzalin has caused birth
30/ defects in their children; and from the complaints of male
workers at the Olin Corporation's Brandenburg, Kentucky, plant.
These are but a few examples, but they demonstrate increasing
concern of male workers that their jobs are hazardous to their
children's health or that their jobs threaten their ability
to have children.
Against this background, the logical fallacies
inherent exclusionary policies are apparent.
also violate federal law, most clearly the right to equal
/ See, "Union, Citing Birth Defects, Asks Ban On A Herbicide," N.Y. Times, Nov. 9, 1979, p. 16, col. 1. 31
_/The National Institute for Occupational Safety & Health (NIOSH) recently undertook a study in response to the complaints of male workers at an Olin facility in Brandenburg, Kentucky, that chemical exposures had adversely affected their reproductive capabilities, allegedly causing infertility and miscarriages in the wives of exposed workers. NIOSH findings, although preliminary, "strongly suggest a problem of toxicity to the male reproductive system affecting workers exposed" to the specific chemicals involved. NIOSH, Center for Disease Control, U.S. Dept. of Health and Human Services, Health Hazard Evaluation Determination Report, HE 79-113-728, Olin Chemical Company, Brandenburg, Kentucky 12 (1980), reported in 30 Morbidity & Mortality Weekly Report No. 17 ,205 (1981).