37/

employment rights guaranteed by Title VII.

The Legal Standard

Any exclusionary policy which overtly treats all women or pregnant women differently because of their presumptive child-bearing capacity constitutes a prima facie violation of Title VII. Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's

sex," 42 U.S.C. S

2000e-2 (a) (1), and "to limit, segregate or classify his

37/Exclusionary policies may also violate the Occupational Safety & Health Act. The OSH Act promises "every working man and woman in the Nation safe and healthful working conditions.' 29 U.S.C. § 651 (b) (emphasis added). The District of Columbia Court of Appeals has indicated that exclusion of fertile women because of their allegedly greater vulnerability violates the Act: fertile women can find statutory protection from such discrimination in the OSH Act's own requirement that OSHA standards ensure that 'no employee will suffer material impairment of health .. 29 U.S.C. § 655 (b) (5) (1976) (emphasis added)." United Steelworkers of America, v. Marshall, 647 F.2d 1189,1238, n. 74, cert. denied sub nom. Lead Industries Assn., Inc. v. Donovan, U.S. 49 U.S.L.W.3964. The Court made it equally clear that OSHA has the authority and duty to protect against reproductive harm: "We find OSHA's contention that it has statutory authority to protect the fetuses of lead-exposed working mothers unassailable. Harm to fetuses, as OSHA contends, is a material impairment of the reproductive systems of the parents. Id. at 1256-57, n. 96. However, the Occupational Safety and Health Review Commission has rejected this logic and held that the use of an exclusionary policy does not violate the "general duty clause" of the OSH Act. Marshall v. American Cyanamid Co., OSHRC Docket No. 79-5762 (Apr. 27, 1981). That decision is presently on appeal.

employees

in any way which would tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's

sex. 42 U.S.C. S 2000e-2 (a) (2).

The exclusionary policy clearly denies women as a class equal terms and conditions of employment; it denies them employment opportunities; and it adversely affects their status as employees.

33 /

Title VII has been amended

to insure that dis

crimination on the basis of sex "includes]s], but [is] not limited to, [discrimination] because of, or on the basis of pregnancy, childbirth or related medical condition

42 U.S.C. S 2000e (k). The amendment makes it clear that a classification based on the capacity to become pregnant is a classification based on sex. This intent is apparent from the legislative debates preceding the enactment of the bill. The House Report states that "[i]n using the broad phrase 'women affected by pregnancy, childbirth, and related medical conditions,' the bill makes clear that its protection extends to the whole range of matters concerning the child-bearing process." H.R. Rep. No. 95-948, 95th Cong., 2d Sess., 5, reprinted in [1978] U.S. Code Cong. & Ad. News 4749, 4753. Later, the House Report reiterates, id. at 7, [1978] U.S. Code Cong. & Ad. News at 4754-55:

33 /Pub. L. No. 95-555, § 1, 92 Stat. 2076, 42 U.S.C. S 2000e (k). This amendment became effective on Oct. 31, 1978.

Women are still subject to the stereotype
that all women are marginal workers. Until
a woman passes the child-bearing age, she
j.s viewed by employers as potentially preg-
nant. Therefore, the elimination of dis-
crimination based on pregnancy in these em-
ployment practices in addition to disability
and medical benefits will go a long way
toward providing equal employment oppor-
tunities for women.

This same concern for the "potentially pregnant" woman was
34/
voiced throughout the legislative hearings, and clearly
evidences Congress' intent to prohibit employers from adopt-
ing policies which exclude women from jobs because of their
· biological role.

34/See, e.g., Proposed Amendment to Title VII to Prohibit Sex Discrimination on Basis of Pregnancy: Hearing on H.R. 5055 & 6075 Before the House Labor Subcommittee on Employment Opportunities, 95th Cong., 1st Sess., 64 (1977) (statement of Dr. Czarnecki, American Citizens Concerned for Life) (women should not be discriminated against because they, not men, have the capacity to become pregnant); id. at 287 (statement of Bella Abzug) (women denied jobs and hired into less responsible positions because of pregnancy potential); id. at 135 (statement of Drew S. Days III, Assistant Attorney General, Civil Rights Division, Dept. of Justice) (loss of employment opportunities makes pregnant, potentially pregnant, and formerly pregnant women second class citizens); Proposed Amendment to Title VII to Prohibit Sex Discrimination on Basis of Pregnancy: Hearing on S. 995 Before Senate Labor Subcommittee, 95th Cong., 1st Sess., 392 (1977) (statement of Sen. Dick Clark) (discrimination against women on basis of capacity to become pregnant not consistent with Civil Rights Act's goals); id. at 32 (statement of Ethel Bent Walsh, ViceChair, EEOC) (employment policies directed at pregnant or potentially pregnant women one of most significant hindrances to women's labor market participation).

Unlike pregnancy, which is not a permanent condition and does not affect all women at all times, the capacity to bear children is an immutable sex characteristic which virtually all women have or are presumed to have for the greater part of their working lives. To hold that this is not a classification based on sex would mean that employment opportunities for women could be forever circumscribed by their biological role a result clearly contrary to Congress'

-

goal of providing equal access to the job market for both men 35/

and women.

Exclusionary policies affect all women employees in other significant ways. They subject all women to special scrutiny about their child-bearing intentions, sexual activities, and birth control methods and, thus, operate to invade their personal privacy in a most sensitive area. woman who remains in a restricted job is forced, per se, to publicly reveal her sterility. Men, on the other hand, are not asked when or if they intend to have children,

Any

35/The risk of injury to a future child from exposure levels that are within OSHA standards is undoubtedly less than the probability of injury to a child who is driven by automobile to and from school daily. Williams, supra n. 2, at 652, n. 75.

The risk is also likely less than that associated with consumption of alcohol and coffee, and with the use of cigarettes during pregnancy, or with pre-conception exposure of parents of either sex to diagnostic x-rays. See generally, Williams, supra n. 2, at 652-53 & n. 76.

even though their exposure to toxic substances could also

result in injury to a future child.

36/

An approach which would respect both privacy rights and health concerns of future parents would offer men and women full information and confidential counselling on potential hazards, plus voluntary temporary transfers during the period of potential risk. An employer minimally must treat similarly situated employees similarly, and either restrict both men and women from areas which pose a potential hazard to their future children or offer both the right to choose.

Supreme Court caselaw provides dispositive guidance. The attempt to avoid fetal harm (and any potential liability. or cost), by excluding all fertile women, including many who will not become pregnant, is analogous to Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702 (1978). In that case, the employer relied on sex-based actuarial tables in deducting larger pension contributions from the paychecks of women employees than those of men. The Court rejected the employer's reasons for this explicit discrimination, stating:

36 /Virtually all of these policies require women to prove affirmatively their physical incapacity to bear children in order to qualify for restricted jobs. This rule applies regardless of the marital status, sexual activity or birth control practiced by the woman employee.