9/ Women head 84% of all single parent households. While the poverty rate for all families is only 5.5%, it is 41.8% for single parent families headed by women with children under 10/ 18. 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 protection." Orr v. Orr, 440 U.S. 268,283 (1979). احد They 9/Marital and Family Characteristics of the Labor Force, supra note 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 Years Old: 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: upon her contractual powers, upon her right 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 79th 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 12 to future children can only occur through maternal exposure. exposur 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 exclusionary policies apply to almost all female workers for 13/ virtually their entire work life, statistics reveal that only a small number of women workers will have children after 14/ 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/Of all women aged 55-59 in the workforce in 1978, almost working women aged 30 or over expected to bear a child within 15 / the next year. According to a 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 16/ 17 / [population of] ever-married women of reproductive age in the labor force at the time." In the population of women aged 15-44 who have completed four years of high school, only 9.8% of all births 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, Current 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 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 (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." Fed. Reg. 52,959 (1978). 43 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 20/ effectively protects fetal safety but which is also consistent 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: 960. 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). 88-583 0-82--13 |