Amicus Curiae Brief — International Union, United Automobile, Aerospace & Agricultural Implement v. Johnson Controls, Inc.

Oo (ieee

No. 89-1215 [fg apteme Court, US.

IN THE Bah JUN T aad

Supreme Court of the United —_

OCTOBER TERM, 1989

—-

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, ef ai.,

Petitioners,

= _—

JOHNSON CONTROLS, INC. , Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF AMICI CURIAE IN SUPPORT OF PETITIONERS BY AMERICAN

PUBLIC HEALTH ASSOCIATION; AMERICAN NURSES ASSOCIATION;

AMERICAN SOCIETY OF LAW AND MEDICINE; ASSOCIATION FOR

WOMEN IN SCIENCE; DEPARTMENT OF PUBLIC HEALTH, COMMON-

WEALTH OF MASSACHUSETTS; ENVIRONMENTAL DEFENSE FUND;

EXECUTIVE OFFICE OF LABOR, COMMONWEALTH OF MASSACHU-

SETTS; OCCUPATIONAL AND ENVIRONMENTAL REPRODUCTIVE HAZ-

ARDS CLINIC AND EDUCATION CENTER; SOCIETY OF AMERICAN LAW

TEACHERS; TOXICS USE REDUCTION INSTITUTE; NICHOLAS A.

ASHFORD, J.D., PH.D.; DAVID BELLINGER, PH.D.; EULA BINGHAM,

M.D.; VILMA R. HUNT, B.D.S.; SUSAN KLITZMAN, DR. P.H.; PHILIP J.

LANDRIGAN, M.D.; MARC ALAN LAPPE, PH.D.; MARVIN S. LEGATCR,

M.D.; DONALD R. MATTISON, M.D.; DAVID MICHAELS, PH.)., M.P.H.;

HERBERT L. NEEDLEMAN, M.D.; ANTHONY ROBBINS, M.D.; JOHN F.

ROSEN, M.D.; JEANNE STELLMAN, PH.D.; and DIRECTORS OF OCCUPA-

TIONAL MEDICINE PROGRAMS (EDDY BRESNITZ, M.D.; MARK R. CUL-

LEN, M.D.; STEVE HESSL, M.D.; PHILIP J. LANDRIGAN, M.D.; LINDA

ROSENSTOCK, M.D.; LAURA WELSH, M.D.)

SUZANNE L. MAGER NADINE TAUB

Massachusetts Special Attorney General for (Counsel of Record)

the Massachusetts Department of Public Rutgers University

Health and the Executive Office of Labor School of Law

-_-1§ Tremont Street 15 Washington Street

Boston, Massachusetts 02111 Newark, New Jersey 07102

Of Counsel (201) 648-5637

Attorney for Amici Curiae

“BEST AVAILABLE COPY iam

~~

TABLE OF AUTHORITIES ..

INTEREST OF AMICI CURIAE .

SUMMARY OF ARGUMENT .. .

ARGUMENT

Re

Title VII Litigation Is Not The

Appropriate Forum For Addressing

Workplace Safety And Health Concerns

Which Are Addressed Under Other

Federal Laws. ....+.+.-s.

The Lower Court's Failure To

Enforce Title VII As Written

Th:-eatens Serious Injury To The

8 Ge ee

A. The Court Of Appeals' Ruling

Provides Less Protection To

Workers Than Federal

Regulators Conclude Is

Necessary .. + «e+e «

1. The Findings of OSHA

emG BPA « © © © ow eo

Evidence On Which The

Lower Court Relied Is

Inconsistent With The

Findings Of Federal

Health Authorities.

CONCLUSION .

The Court Below Ignored

Necessary Elements Of Risk

Assessment And Risk Manage-

ment That Are Critical To

Protecting All Workers .

Re The Relevance of

Experimental Data In

Risk Assessment .

2. The Significance Of

Evidence Of Male

Reproductive

Dysfunction .

3. Risk Management Is

Essential To Rational

Occupational Health

Policy

-ii-

40

44

49

55

65

Cases

-, 746 F.2d 483

(9th Cir. 1984) .. + «+2 «© « «© « »

Civ. Action No. 80-0024 (P)

(N.D.W.Va.) ° > . . 7 . 7 . 7 . 7 .

Diamond v. Chakrabarty

447 U.S. 303 (1980) ..

Dothard v. Rawlinson

TOME « « © 6 « 0 © «

DET"? ss 6 6 © © © ¢ « «

Johnson Controls v. California Fair

Employment & Housing Commission,

218 Cal.App. 3d 517 (1990) .

’

Lochner v. New York

4 = er og) |

Los Angeles Dept. of Water & Power

v. Manhart, 435 U.S. 702 (1978) » «

Muller v. Oregon, 208 U.S.

412 (1908) .... aa: «

w ui j & Dock

Co. v. EEOC, 462 U.S. 669 (1983)

-iii-

59

36

63

13

40

39

13

hillips v. Marti arietta Corp.,

400 U.S. 542 ‘1971) ‘na & © &@ 6 4 & & & Be

Price Waterhouse v. Hopkins,

U.S. , 109 S.Ct. 1775 (1989) - « 13

United Steelworkers of America v.

Marshall, 647 F.2d 1189 (o.¢.Cir.

1980), cert enied,

453 U.S. 913 (1981) ...... .. . passim

Western Air Lines v. Criswell,

i Te a ae oe ee

Statutes and Regulations

29 C.7.R.. $5980.46 (1008) sk st ew eS

Dep't of Labor, Occupational Safety

and Health Admin., Occupational Exposure

to 1,2-Dibromo-3-Chloropropane (DBCP),

43 Fed.Reg.11514 (1978) a eae eo ok ee ee Ck

Environmental Protection Agency, Intent to

Cancel Pesticide Products Containing

Dibromochloropropane (DBCP), 50 Fed.

Reg.1122 (1985) a a ee ik SS Me ee oe ae eC

Environmental Protection Agency, Proposed

Amendments to the Guidelines for the Health

Assessment of Suspect Development

Toxicants, 54 Fed. Reg. 9386 (1989) .. 45

Environmental Protection Agency,

Guidelines for Carcinogenic Risk

Assessment, 51 Fed. Reg. 33992

[seen «& « 6 ee ee se es eS Se eS ee 42, 44

aigea

Environmental Protection Agency,

Guidelines for Mutagenicity Risk

Assessment, 51 Fed.Reg. 34006

(1966) ~. «© see eeee eee eo ce « 46, $2

Environmental Protection Agency,

Guidelines for the Health Assessment

of Suspect Developmental Toxicants;

51 Fed. Reg. 34028 (1986) .. 42, 45, 47,

52, 55

Environmental Protection Agency,

Proposed Amendments to the Guidlines

In the Health Assessment of Suspect

Developmental Toxicants, 54 Fed. Reg.

9386 (1989) os ¢ «ses 6 «© « 0 «6 4B, S75 Ba

Environmental Protection Agency,

Proposed Guidelines for Assessing

Male Reproductive Risk,

53 Fed. Reg. 24850 (1988) ....... 53

Environmental Protection Agency, -

Regulation of Fuel and Full Additives,

Supplemental Notice of Proposed

Rulemaking, 50 Fed. Reg. 9400

eae ae

Fair Labor Standards Act,

Se UcsOeCe Been cc eveweweeeeeees 5

Final Standard for Occupational Exposure

to Lead, 29 C.F.R. §1910.1025 (1989),

43 Fed. Reg. 52960 (1978) eo © © e «© 28-21

Occupational Safety and Health Act,

29 U.S.C. §651, et seg. o ce « Be 6, 19, SD

-VYV=

Pregnancy Discrimination Act,

Pub. L. 95-555, 42 U.S.C.

S20CGG(R) «© © = sc eevee e se co « POORis

Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §2000e,

i ie ae ee ee ee ee el

Legi ive Materials

Automotive Lead Emissions, 1971:

Hearings Before the Panel on

Environmental Science & Technology of

the Subcommittee on Environmental

Pollution of the Committee on Public

Works, 93d Cong., 2d Sess. (1974) .

Committee on Labor and Human Resources,

U.S. Senate, 9th Cong., 2d Sess.,

Legislative History of the Pregnancy

Discrimination Act of 1978 (1979) . 10,

Discrimination on the Basis of

Pregnancy: Hearings on S. 995 Before

the Subcomm. on Labor of the Sen.

Comm. on Human Resources, 95th Cong.,

ame BOGG. Ca977) «© « © «6 © & © oe le le Ki,

Legislation to Prohibit Sex

Discrimination on the Basis of

Pregnancy: Hearing on H.R. 5055

and H.R. 6075 Before the Subcomn.

on Employment Opportunities of

the House Comm. on Education and

Labor, 95th Cong., lst Sess.

84 (1977) So a oe 2 ae oe ee oe ee

-vi-

36

12

11

Senate Comm. on Labor and Public

Welfare, Legislative History of the

Occupational Safety and Health Act

rn 2 6 ge egw a eo aes

e) ities

Ass'n of Schools of Public Health

and National Institute for

Occupational Safety and Health,

Proposed National Strategies for

the Prevention of Leading Work-Related

Diseases and Injuries, Part 2 (1988) .

Baer, J., Th i tectio

(1978) . . — . . . . 7 > . o . . . .

Bellinger, et al., Longitudinal Analyses

of Prenatal and Postnatal Lead Exposure

and Early Cognitive Development,

316 New Eng. J. Med. 1037 (1987) . .

Blakeslee, Scorned Thalidomide

Researched Anew, New York Times,

Apr. 10, 1990, C3 .« «© «© © © © «© © © « «

Bornschein, Hammond, Dietrich, et al.,

° Vv u OW

Level Lead Exposure and Its Effects on

i Vv : otocol and Status

Report, 38 Envtl. Res. 17 (1985) . .

Bullock, L.F., “Lead-Acid Battery

Manufacturing," in Industrial Hygiene

ant O tions 599-633

(Cralley and Cralley, eds.) (1985). .

-vii-

16

48

34

60

Burke, et al. "A Battery Data Base for

Electric Vehicle Applications" in

Proceedings

of the 5th Annual Battery Conference on

Applications and Advances (1990) ... . 62

Cassidy, et al., Occupational Hydrocarbon

Exposure Among Fathers of Prader Willi

Syndrome Patients With and Without

Deletions of 15q, 44 Am. J. Hum. Genetics

8 ere are ee ee ea a

Centers for Disease Control, Leading Work-

Related Diseases and Injuries -- United

States, 34 MMWR 537 (1985) ....... 50

Daniell & Vaughan, Pate Occupation and

Braj neer j spring: ortality-

Based

Case-Control Study, 14 Am.J. Ind. Med.

Sa cae. + = 2 2-4 6 eo % ee ee lt OR

Dietrich, et al., Low Level Fetal Lead

Exposure Effect on Neurobehavioral

Development in Earl ancy,

SO Pediatrics 722 (1967) . . «© «© « «© «© « 34

Dodge and Elder (Advance Battery

Business Unit, Johnson Controls Inc),

"Recent Advances in Zinc/Bromide

Technology at Johnson Controls Inc."

in Proceedings of the 5th Annual

Battery Conference on Applications

and Advances (1990) _. & os 8 © « « xa

EPA, Costs and Benefits of Reducing

Lead _in Gasoline: Final Regulatory

Impact Analysis (1985) ......... 25

“viii-

Gardner, et al., Results of

Case-Control Study of Leukaemia and

Lymphoma Among Young People Near

Selafield Nuclear Plant in West Cumbria,

300 Br. Med. J. 423 (1990) .......

Geiser, Toxics Use Reduction and

Pollution Prevention, 1 New Solutions 1

C. a 2" : <r

Hamilton, Lead As a Race Poison,

Industrial Poisons In The United

States (1925) .+«-+«-ee-rrxe2 © © « 38,

Hemminki, et al., Spontaneous Abortion

in_an Industrialized Community in

Finland, 73 Am.J.Pub.Health 32 (1983)

Huber, Safety and the Second Best:

The Hazards of Public Risk

Management in the Courts, 85 Col.

+ sw). | rrr : - = Oh

Kessler-Harris, A., Out to Work

(1982) . oa 7 . * . >. >. . >. i

Latin, Good Science, Bad Regulation and

Toxic Risk Asseszement, 5 Yale

J. on Reg. 89 (1988) ... . 16, 38, 41,

Marcus and Cothern, Cc acteristics

fe) dvers ect: ing t ample

of Developing a Standard for Lead,

16 Drug Metabolism Rev. 423 (1985-86)

Needleman and Bellinger, Commentary:

Recent Developments, 46 Envtl. Res.

1960 (3908) « «© e« es ee ee ee © © 2 OB,

-ix-

60

55

29

Note, .rcans-Science in Torts,

O6 bud. GO fied tw we tt te wt we et tl

Olshan, et ai., t ccupationa

su and the Ri wn Syndrome

44 Am.J.Hum. Genetics 646 (1989) ... . 54

Paul, “Reproductive Fitness and Risk,"

3 Occupational Medicine: State of the Art

Reviews 323 (1988) . .. +. ++ «© «© « « + Sl

Paul, et al., Corporate Response to

Reproductiv azards in the Workplace:

Results o i W nd Health

Survey, 16 Am.J.Indust.Med.

ge re ae ee ee ee ee

Perez, R.A. The Complete Battery

Book (1985) S68 6 @ « 6 «0 2 oe oes S&S

Pirkei, et al., The Relationship Between

Blood Lead Levels and Blood Pressure and

its Cardiovascular Risk Implications,

haa Geo Epid. 246 (1985) i= “6 = we « RS

Rosner & Markowitz, 'A Gift of God'?:

The blic Health Controversy Over

Leaded Gasoline In The 1920s,

75 Am.J.Pub.Health 344 (1985) > 6 & ce « 26

Savitz, Childhood Cancer, Occupational

Medicine State o h t views:

Reproductive oblems in the

Workplace (Z. Stein & M. Hatch, eds.)

436 €290G) « ec ee eoev sieeve ee eo os BS

Scialli, Sexism in Toxicology,

3 Repro. Tox. 219 (1989) .... +++ + 35

Strobino, Klein & Stein, Chemical and

j : ts

on Human Reproduction and offspring,

Early Human Development 371 (1978) . .

U.S. Congress, Office of Technology

Assessment, Reproductive Health Masarse

in the Workplace (1985) .. -

Uzych, Teratogenesis and Mutagenesis

Associated with Exposure of Human Males

to Lead: A Review, 58 Yale J. of Bio.,

and Med. 9 (1985) ...+-+«-«+« « « « »«

Whorton, Adverse Reproductive

Out es: The Occupational Health

Issue of the ate. 73 Am.J.Pub.Health

15 (1983) .. .- oe «© © 6 © 6s 8 @

Winder, C., Reproductive znd

Chromosomal Effects of Occupational

Exposure to Lead In the Male,

3 Repro. Tox. 221 (1989) .... .

awie

14

23

33

23

INTEREST OF AMICI CURIAE

This brief amici curiae is filed in

support of Petitioners pursuant to Rule

37.3 of the Rules of this Court.]/

Amici are individua!s and

organizations concerned primarily with the

medical and public health implications of

the policy adopted by Johnson Controls.

that excludes fertile women from employment

opportunities. Amici do not believe that

there is a sound scientific basis to focus

attention only on women workers, because

all workers face significant health risks

from occupational exposures such as those

at Johnson Controls. This kind of policy

disserves overall promotion of workplace

safety and health, as well as the health of

i/ The parties have consented to the filing

of this brief, and their letters of consent are

being filed with the Clerk of this Court pursuant

to Rule 37.3 of the Rules of this Court.

-l-

women and children, who lose income and

benefits that are essential to their health

and well-being.

Some amici have published or

participated in scientific research cited

by Johnson Controls in support of its

policy. They seek to appear as amici to

Clarify the nature of their research or

other activities and to comment on its use

by Johnson Controls and its witnesses.

Amici believe that their participation in

this appeal will aid the Court in

evaluating the scientific legitimacy of

Johnson Controls' policy and in

appreciating its larger implications for

nationwide public health policy.

Individual Statements of Interest for

Amici Curiae are set out in an Appendix to

this brief.

SUMMARY OF ARGUMENT

Introduction

This case revisits familiar terrain.

Once again, women's biological role as

childbearer is advanced as a rationale for

discrimination that would deny women

lucrative employment or, in a modern twist,

require them to be sterilized to qualify

for full employment rights. Johnson

Controls' policy, Sweeping in scope and

virtually unlimited in its implications, 2/

a job. Vv

Controls, Appenc'’x to the Petition for Certiorari

(hereinafter "Pet. App.") at 5a-6a and 97a

(Easterbrook, dissenting). Fertile women

applicants are also excluded from all jobs as a

result of the policy. Johnson Controls v.

Cali i i & i ission,

218 Cal.App. 3d 517 (1990).

(Blood lead levels are expressed herein as

(continued... )

-3-

treats all women as "childbearing vessels,"

and assumes that children will be better

off if women do not work -- at least not in

their battery plants. Women workers,

however, are not always pregnant, the risks

of employment are not confined to them, and

employment brings them and their families

concrete benefits. This case thus raises

critical and timeless questions about who

should assess, manage and balance the risks

of everyday life, and whether that process

should be different for women and men.

In the past, exclusion of women from

hazardous employment was justified to

protect the "future well-being of the

race," Muller v. Oregon, 208 U.S. 412, 422

2/ (...continued)

micrograms (of lead) per deciliter (Of blood)

(ug/al) which corresponds closely to micrograms per

100 grams (ug/100g) and micrograms per 100

mil!iliters (ug/100ml); air lead levels are

expressed as micrograms per cubic meter (ug/m?).

-4-

(1908). In an era in which workplace

protection for both sexes was foreclosed, 3/

the attainment of "nalf a loaf" of

workplace protection may have seemed

appropriate. This "protection" was to

prove doubly inadequate, however, as women

lost economically and men remained

subjected to harsh working conditions. 4/

The Fair Labor Standards Act, 29

U.S.C. §201, et seg., reflected legislative

recognition that all workers required

protection from onerous workir 3 conditions.

Similarly, the Occupational Safety and

Health Act ("OSH Act"), 29 U.S.C. §651, et

3/ In Lochner v. New York, 198 U.S. 45

(1905), the Supreme Court refused to permit such

limits on the "right of contract." Muller,

however, permitted state-imposed limits on the

employer-employee relationship, based on the

special biological vulnerability of women and the

need to safeguard the "future well-being of the race."

4/ See generally, A. Kessler-Harris, Out to

Work, (1982); J. Baer, The Chains of Protection

(1978).

seq., recognized the vulnerability of both

sexes to work-related health risks, and the

need to establish exposure limits and

workplace standards that would insure, "to

the extent feasible" that "every working

man and woman" would enjoy a "safe and

healthful" workplace. 29 U.S.C. §651(b)

(emphasis added).

Notwithstanding this evolutionary

process, Johnson Controls' position differs

little from that taken by the advocates and

defenders of protective labor legislation.

Johnson asserts that women must be

involuntarily excluded from such jobs

essentially to protect "the future well-

being of the race." This position has been

re ected on the merits by federal health

authorities, as discussed infra. Moreover,

in Title VII of the Civil Rights Act of

1964 ("Title VII"), 42 U.S.C. §2000e, et

seq., Congress determined that, even if

women do require a greater level of

workplace health protection, they are still

entitled to equal opportunity in

employment.

ee @ @

The legal issues presented by this

case are relatively straightforward. Title

VII prohibits this historically-familiar

effort to limit the rights and daily

activities of women in the name of future

generations, and it was plainly the intent

of Congress to prevent women from being

subjected to continued economic

disadvantage because they are or micht be

pregnant. See Point I, infra.

The failure of the court below to

enforce Title VII enmeshed it in a dispute

over the scientific validity of a

discriminatory policy. Title VII

litigation was never intended to be the

forum for such disputes: Congress has

decided that discrimination is contrary to

public policy and that workplace safety

standards are appropriately established by

federal regulatory authorities operating on

the assumption that both men and women will

be working.

As this case demonstrates, the

inevitable result of establishing workplace

health rules as an accidental by-product of

discrimination litigation would he to

undermine the work of health and safety

officials charged with assessing and

regulating workplace hazards. Resolving

these issues in the regulatory forum

intended by Congress, in contrast, would

facilitate comprehensive risk management

that would consider the risks of

employment, the overall benefits and

detriments of various policy alternatives,

and all technologically feasible options

for reducing risks. See Point II, infra.

ARGUMFNT

Ze Title VII Litigation Is Not The

Appropriate Forum For Addressing

Workplace Safety And Health Concerns

Which Are Addressed Under Other

Federal Laws.

Sex discrimination, like race

discrimination, is a recognized economic

evil, contributing materially to the

depressed economic status of women and the

families who depend on them. In

recognition of this fact, Congress enacted

Title VII and subsequently amended it2/

3/ The Pregnancy Discrimination Act ("PDA"),

Pub. L. 95-555, 42 U.S.C. §2000e(k), provides that

sex discrimination includes discrimination on the

basis of “pregnancy, childbirth or related medical

conditions; and [that] women affected by pregnancy,

Childbirth or related medical conditions shall be

treated the same for all employment related

purposes...as other persons not so affected but

Similar in their ability or inability to work."

-9-

to clarify that the statute prohibits

"discrimination [against working women] on

the basis of their childbearing capacity

[and that it does-so] for all employment

related purposes. "&/

Denial of employment opportunity in

the name of health protection (for the

fetus) was a familiar rationale for denying

women employment opportunities, and it was

raised in the legislative debates over the

PDA. The Chamber of Commerce opposed the

PDA on the ground, inter alia, that it

"would prevent an employer from refusing

certain work to a pregnant employee where

such work posed a threat to the health of

either the mother-to-be or her unborn

child.... {I]njury to the fetus might give

6/ Committee on Labor and Human Resources,

U.S. Senate, 9th Cong., 2d Sess., Legislative

History of the Pregnancy Discrimination Act of 1978

(1979) (hereinafter "Legis. Hist.") at 61, 63.

-10-

the child a cause of action against the

employer...."2/ Senator Hatch pursued the

issue:

Senator Hatch. Do you think

there would arise a whole slew of

OSHA problems, occupational

safety and health problems as a

result of pregnant women?

Dr. Hellegers. .. - (Hazardous |}

agents are just as likely to

affect the ovaries of nonpregnant

women and there are in fact today

companies that will not hire

women on that specific basis.

But you never dream of thinking

that the same agents may also

affect the testicles of men. So

if we are talking about untoward

effects of industrial processes

on human procreation, we have to

look at the effects on testicles,

the effects on ovaries and the

1/ Prepared Statement of G. Brockwel Heylin,

Labor Relations Attorney, Chamber of Commerce of

the United States. Discrimination on the Basis of

Pregnancy: Hearings on S. 995 Before the Subcom.

on Labor of the Sen. Comm. on Human Resources, 95th

Cong., 1st Sess. 482 (1977); Legislation to

Prohibit Sex Discrimination on the Basis of

Pregnancy: Hearing on H.R. 5055 and H.R. 6075

Before the Subcomm. on Employment Opportunities of

the House Comm. on Education and Labor, 95th Cong.,

lst Sess. 84 (1977).

-ll-

effects on fetuses, all three,

and we aren't doing much of

that.

As the exchange suggests, where

Congress endorsed non-discrimination

for women workers and rejected the

proposition that women can be denied

protection is necessary, it is required for employment opportunities to "protect" them

both sexes. That was, in any event, the from potentially hazardous employment.

plain legislative commitment expressed in This is not surprising, given the fact that

the PDA; the standard governing employment it had recently secured the right of "every

of women “affected by pregnancy,

childbirth, or related medical conditions"

is "ability or inability to work."2/

8/ Discrimination on the Basis of Pregnancy :

Hearings on S. 995 Before the Subconm. on Labor of

the Sen. Comm., on Human Resources, 95th Cong., lst

Sess. 67 (1977) (Testimony of Andre E. Hellegers,

M.D.).

2/ An employee's sex can be taken into

account only if sex is a "bona fide occupational

qualification" or "BFOQ." 42 U.S.C. §2000e-

2(e)(1). Dothard v. Rawlinson, 433 U.S. 321

(1977), and see Western Air Lines v. Criswell, 472

U.S. 400 (1985) (age discrimination case). Both

the PDA and the BFOQ provision reflect

Congressional intent to establish "ability to work"

as the criterion in securing women's employment

rights. Any uncertainty in this regard has been

clarified by the PDA's specific designation of

“ability or inability to work" as the correct

(continued...)

-12-

working man and woman" to a "safe and

healthful" workplace. 29 U.S.C. §651

2/ (...continued)

standard.

The statute provides no other defense to

facial sex or pregnancy discrimination, Los Angeles

Dept. of Water & Power v. Manhart, 435 U.S. 702

(1978), Phillips v. Martin Marietta Corp., 400 U.S.

542 (1971), and the defendant bears the burden of

proof as to the affirmative defense. Dothard v.

Rawlinson, 433 U.S. 321 (1977). Cf. Price

Waterhouse v. Hopkins, U.S. ___, 109 S.Ct.

1775, 1789 (1989) (plurality opinion) , id. at 1805

(O'Connor, J., concurring), and id. at 1811

(Kennedy, J., dissenting); and Trans World Airlines

v. Thurston, 469 U.S. 111 (1985). Congress

explicitly rejected a cost-based defense: "...even

a very high cost could not justify continuation of

the policy of discrimination..."

Legis. Hist. at 48. And see Manhart, 435 U.S.

702, and Newport News Shipbuilding & Dry Dock Co.

v. EEOC, 462 U.S. 669 (1983).

-13-

(b) (1). The “SF Act requires employers to

maintain a wo +jlace "free from recognized

hazards that are causing or are likely to

cause death or serious physical harn,"

§654(a) (1), and it recuires the Secretary

of Labor to promulgate health and safety

standards that assure, to the extent

feasible, "that no employee will suffer

material impairment of health or functional

Capacity." §655(b) (5) .49/ Congress

10/ [OSHA] has statutory authority to protect

the fetuses of lead-exposed working

mothers.... Harm to fetuses, as OSHA

contends, is a material impairment of

the reproductive systems of the

parents.

United Steelworkers of ica v. ll, 647

F.2d 1189, 1256 n.96 (D.C.Cir.1980), cert. denied,

453 U.S. 913 (1981). And see id. at 1238 n.74.

OSHA has regulated occupational exposures to

two substances other than lead in whole or in part

because of their reproductive effects. They are

dibromochloropropane ("DBCP") and ethylene oxide

("EtO"). U.S. Congress, Office of Technology

Assessment, Reproductive Health Hazards in the

Workplace, 199-203 (1985).

-14-

therefore had good reason, in 1978, to

assume that the workplace would be safe for

working women, pregnant or not, and that

questions about how to accomplish this

result would be addressed through the

regulatory mechanisms that had been

established to research and control work-

related hazards.1i1/

An exception to the non-discrimination

principle to protect the health of any

group of workers was thus unwarranted.

Indeed, OSHA was required to protect

workers even in the face of scientific

uncertainty by relying on the "best

available evidence," 29 U.S.c. §655(b) (5),

il/ The National Institute for Occupational

Safety and Health ("NIOSH") Was established as the

research authority, 29 U.S.c. §671, and OSHA was

Set up in the Department of Labor as the regulatory

agency. 29 C.F.R. §1910.4 (1989).

-15-

and was not to "be paralyzed by debate

surrounding diverse medical opinion. "12/

Title VII litigation was thus never

intended to be a forum for addressing

occupational health and safety issues or

for identifying groups of workers who may

require additional protection from

occupational hazards.13/ The lower court's

misguided attempts to do so led to a gross

distortion of the science of risk

assessment and risk management and

ultimately produced not only bad law but

bad public health as well.

12/ Senate Comm. on Labor and Public Welfare,

Legislative History of the Occupational Safety and

Health Act of 1970, at 848 (1971), cited in Latin,

Good Science, Bad Regulation and Toxic Risk

Assessment, 5 Yale J. on Reg. 89, 135 and n.226 (1988).

13/ For a discussion of the implications of

the theory adopted by the court of appeals to

racial and ethnic sub-groups, see Brief amicus

Curiae of the NAACP Legal Defense and Education Fund.

-l16-

II. The Lower Court's Failure To Enforce

Title VII As Written Threatens Sericus

Injury To The Public Health.

The Court of Appeals' misapplication

of Title VII law enmeshed it in a factual

dispute over the scientific validity of

Johnson Controls' policy. This was plainly

unnecessary to resolve the Title VII

issues, as noted above. Of equally great

Significance is the fact that this upproach

has vast negative implications for

protection of worker health, py allowing

courts to make determinations about what is

"safe" for whole subclasses of the employed

population on the basis of private

litigation, the focus of which is an

entirely different and more limited set of

issues and interests.

This concern is more than just

speculative. Indeed, it is borne out in

this case by the court of appeals’

-17<

acceptance of Johnson Controls' contention

that its policy is justifiable because

fetuses are especially at risk, when

federal health regulators have concluded

that men, women and fetuses all require the

same degree of protection from the

hazardous effects of lead exposure.

A. The Court Of Appeals' Ruling

Provides Less Protection To

Workers Than Federal Regulators

Conclude Is Necessary.

1. The Findings cf OSHA and EPA

In 1978, OSHA promulgated a Final

Standard for Occupational Exposure to

Lead.14/ The agency conducted one of the

most comprehensive rulemakings ever

undertaken in the occupational health

14/ 29 C.F.R. §1910.1025 (1989). The

Preamble to the Standard appears at 43 Fed. Reg.

52952 (1978) (hereinafter "Preamble") and the

Attachments appear at 43 Fed. Reg. 54386 (1978)

(hereinafter "Attachments") .

-18-

context. See 43 Fed.Reg. 52953 (1978). Its

findings were exhaustive and were sustained

on appeal. W so merica

Vv. Marshall, 647 F. 2d 1189.

The position now advanced by Johnson

Controls was pressed in that rulemaking by

the Lead Industries Association. Industry

representatives argued, precisely as

Johnson Controls does now, that the fetus

is differentially susceptible to injury to

lead and that fetal safety can only be

assured if women of childbearing age are

excluded from employment altogether. OSHA

considered the matter at some length:

No topic was covered in greater

depth or from more vantage points

than the subject of women in the

lead industry.

OSHA rejected the industry position:

13/ Preamble, supra, n. 14, 43 Fed. Reg. at

52960.

-19-

The record in this rulemaking is

clear that male workers may be

adversely effected by lead as

well as women. Male workers may

be rendered infertile or

impotent, and both men and women

are subject to genetic damage

which may affect both the course

and outcome of pregnancy. Given

the data in this record, OSHA

believes there is no basis

whatsoever for the claim that

women of childbearing age should

be excluded from the workplace in

order to protect the fetus or the

course of pregnancy.

Indeed, OSHA's concern about the

reproductive effects of lead is reflected

in provisions of the Standard that provide

an extra measure of safety for both males

and females planning to have children, an

18/ Id. at 52966. OSHA relied on both human

epidemiological evidence and experimental data. See

Attachments, supra n. 14 at 54389-96, 54421-24.

OSHA found that male exposure can cause "a decrease

in sexual drive, impotence, decreased ability to

produce healthy sperm, and sterility. Malformed

Sperm (teratospermia), decreased number of sperm

(hypospermia), and sperm with decreased motility

(asthenospermia) can all occur.... Germ cells can

be affected by lead and cause genetic damage in the

€gg or sperm...." 29 C.F.R. § 1910.1025, Appendix

Cc, II(5).

-2 O-

approach more protective than that adopted

by Johnson Controls. An "action level of

30 ug/m3....education and training ....

[e]nvironmental monitoring, biological

monitoring, and [access to} medical

records... medical removal protection [and

use of a] powered air purifying respirator"

were all contemplated as appropriate and

feasible techniques to maintain worker

blood leads at or below 30 ug to insure

greater reproductive safety.1//

i7/ Attachments, supra n. 14 at 54423 (1978)

and see Preanble, Supra n. 14 at 52966. OSHA

requires that even if air levels are within the

want to reduce the level of lead in [the] body

minimize adverse reproductive eff -" 29 C.F.R.

§1910.1025, Appendix B, Employee Standard Sumary,

§IV (1988). Respirators can effect a reduction of

air lead exposure by a factor of 10 to 2000. 29

C.F.R. §1910.1025 (f) (iii) (2), Table IT.

Respiratory Protection for Lead Aerosols. Medical

removal protection is also available to reduce

worker lead levels. Id., Appendix B, §IXx.

-21i-

The Lead Industries Association

specifically challenged these findings and

other aspects of the Standard. United

Steelworkers of America v. Marshall, 647

F.2d 1189. The Court of Appeals for the

District of Columbia characterized the

challenge as "an attack on the scientific

accuracy of OSHA's studies," id. at 1257,

and noted that OSHA had "abundant support"

for its conclusions. Id. The court upheld

the "reasonable and conscientious

interpretations of the agency." Id. at

1258.18/

18/ Jciunson Controls' policy targets 30 ug as

the level of unacceptable risk for women. This

precisely the level at which OSHA determined in

1278 “that both -men_and women face equivalent risks

ive - Johnson Controls argues

that the fetus is differentially susceptible at

lower blood levels, but this argument is irrelevant

to its policy, which is set at the 30ug level.

Moreover, even this claim is refuted by regulatory

findings linking very low lead exposures with life-

threatening risks tc males. See pp. 24-26, infra.

-22-

The court below ignored OSHA's

conclusions, stating that the lead standard

is outdated. Pet. App. 54a. New

developments have indeed confirmed the

universal nature of the risks posed by lead

at lower levels. The court below addressed

some of those new developments, but not

al1.12/

The EPA has recently reviewed the

developments in knowledge about lead's

toxic effects in its on-going regulation of

the content of lead in fuel. It cited

"newly developed information" establishing

19/ In addition to evidence of cardiovascular

risk from lead, recent evidence supports OSHA's

conclusions about male reproductive risks. See,

: vi ~¥ 58 Yale 2 of Bio. and

Med. 9 (1985) (both reviewing the literature) .

-23-

a relationship between exposure of adult

males and cardiovascular disease. 202/

EPA has documented cardiovascular

risks to men at low blood lead levels in

the range of 10 ug/dl or less.22/

20/ Environmental Protection Agency,

Regulation of Fuei and Full Additives, Supplemental

Notice of Proposed Rulemaking, 50 Fed. Reg. 9400,

9401 (1985).

21/ The EPA based its conclusions about

Cordionecsias risk on, inter alia, Pirkel, st al..,

Blood Pressure and its Cardiovascular Risk

Implications, 121 Am.J. Epid. 246 (1985). The

Pirkel study examined data from 20,322 white men

between the ages of 40-59. After controlling for

all known variables, a statistically significant

relationship of blood pressure to blood lead levels

was found. There was no evidence of a threshold

level below which lead had no effect on blood

pressure. The researchers also quantified the

impact of a reduction in blood lead levels in adult

males from 16.7 ug/dl to 10. 5 ug/dl over a ten-year

period. The 37% decrease in mean blood levels

resulted in a 4.7% decrease in the incidence of

fatal and nonfatal myocardial infarction, a 6.7%

decrease in the incidence of fatal and nonfatal

strokes, and a 5.5% decrease in the incidence in

death from all causes. These are conservative

predictions. The researchers excluded persons with

a history of myocardial infarction or stroke from

the study and assumed that lead only affects blood

pressure.

-24-

Accordingly, it predicted that reduction of

lead in gasoline (to 0.1 g/gal.) would

result in 5,350 fewer myocardial

infarctions; 1,115 fewer strokes; and 5,160

fewer deaths among white males aged 40 to

59 in 1986 alone. Extending the analysis

to men of other ages and to nonwhites

“would substantially increase these

estimates." EPA, Costs and Benefits of

Reducing Lead in Gasoline: Final Regulatory

Impact Analysis, at V-35 (1985) .22/

In sum, the lower court's conclusion

that the fetus is vulnerable to injury from

lead at workplace levels that are "safe"

for adults simply has no support in the

22/ 2p Seep ee and Sth, The

fect: Usi the

a fo , 16 Drug

Metabolism Rev. 423, 436 (1985-86): "Lead's effect

on blood pressure is a long-term effect that

produces mortality. Tens of thousands of lives

would be saved Se Seem SF ee hhene

lead levels were decreased..

-25-

public record, and health regulators have

plainly concluded that the contrary is

true.23/ While some might make a value

judgment that fetuses should be protected,

even when human beings remain at risk,

Title VII makes the decision selectively to

protect the fetus in utero a sex-

discriminatory act, as noted in Point I,

supra, and the OSH Act commands that

employers protect the health of both

working men and women.24/

23/ Efforts to control occupational lead

exposure have a long and infamous history, despite

the well-known toxic effects of the chemical. See

e.g., Rosner & Markowitz, 'A Gift of God'?: The

Public health Controversy Over Leaded Gasoline In

The 1920s, 75 Am.J.Pub.Health 344 (1985).

24/ While the protection of women includes

protection of the fetus if a woman happens to be

pregnant, United Steelworkers v. Marshall, 647 F.2d

at 1256 n.96, it plainly includes a great deal more

than that.

-2 6-

S. Evidence On Which The Lower

Court Relied Is Inconsistent

With The Findings Of Federal

Health Authorities

The contrast between the record

created by OSHA and EPA and the record in

the court below demonstrates some of the

difficulties of setting occupational health

rules through private litigation. Here,

the employer's sole concern was to win

justification for a previously adopted

policy, which had resulted in the

sterilization of at least one woman worker,

Joint ippendix (hereinafter "Jt.App.") at

36, §79(f), not to explore the hazards of

the workplace and devise rational

policy.22/ The limited scope of the

inquiry may account for the misleading

nature of the evidence on which the court

25/ If anything, the employer had an

incentive to conceal all risks except the one it

has, for whatever reason, chosen to recognize.

-27<-

of appeals relied, lacking its own

expertise and unwilling to accept the views

of the petitioners' experts.

The company's experts failed to

evidence familiarity with the analyses and

findings of OSHA and EPA and selectively

relied on the data on prenatal effects,

taken out of context, as noted ina

Commentary by Herbert L. Needleman, M.D.,

and David Bellinger, Ph.D.,2§/ whose

research played a central role in Johnson

Controls' defense. 27/ The Commentary

sete Needleman and Bellinger, Commentary:

Recent Developments, 46 Envtl. Res. 190 (1988).

Needleman and Bellinger wrote the commentary "to

assure that our research is interpreted fully and

accurately and that it be placed in the proper

biological and epidemiological context."

27/ Defendant's experts identify Ne. ~ «an

and Bellinger's research as "the Boston st. "

See Jt. App. 199, 46 (Chisolm); Jt.App. 187, 48

(Whorton) ; Jt.App.72, 94 (Hammond); Jt.App.158

(Fishburn). "The Boston Study" is described in

Needleman, et al., The Relationship Between

(continued...)

-28-

——

describes both the nature and limits of

this research. The studies detected a

number of correlations between umbilical

cord blood lead levels and physical and

neuropsychological development in children,

but they "did not measure paternal exposure

and thus « s.inot rule this out [as] a

contributing factor." Id.

Bellinger and Needleman note the

Significance of recent data demonstrating

"an association without apparent threshold

between exposure to lead and blood pressure

in adult males," and suggest that future

research will further confirm the harmful

effects of lead at very low levels on male

reproductive function. As a result, they

27/ (...continued)

Prenata Lead and Co ital Anomalies,

251 JAMA 2956 (1984) and Bellinger, et al.,

Longitudinal Analyses of Prenatal and Postnatal

itive Devel t, 316

New Eng. J. Med. — (1987).

-29-

conclude: "we do not believe that present

data provide a sufficient scientific basis

for applying different lead exposure

standards to male and female workers." Id.

at 191. They specifically repudiate any

inference that men exposed to low levels of

lead, or their offspring, are safe, because

such a conclusion "is without logical

foundation and insupportable on empirical

grounds. "28/ Id.

28/ As Needleman and Bellinger note,

conclusions cannot be drawn from an absence of

evidence or a relative imbalance in the data on

male and female risks. ~ See also Deposition of

Michael Silverstein, M.D., Jt. App. 202, 220-24.

Scientific uncertainty compounds the

difficulties created by the lower court's

misallocation of the burden of proof. See n.9,

Supra. Even assuming arquendo that the BFOQ

defense could be applied in this context, the

employer would be required to prove that men are

not at risk in order to justify a sex-based policy.

Instead, the court of appeals required the victims

of proven discrimination also to prove that the

employer's acts were unjustifiable, by

affirmatively proving the risk to the children of

male workers. In the absence of equivalent

evidence of risks to men, this showing could not be

(continued...)

-30-

Similarly, Dr. John F. Rosen, an

amicus herein, and head of the Centers for

Disease Control ("CDC") Childhood Lead

Poisoning Prevention Ad Hoc Advisory

Committee, which advised the CDC on its

ventin ad Poisoni in

Young Children (1985), also cited by

Johnson Controls, 22/ repudiates Johnson

Controls' position. He believes that

Johnson Controls' reliance on the CDC

report is misplaced. The CDC looked only

a. the devastating effects of lead on

children and concluded that all exposures

should be reduced. A study focussing on

other subgroups in the population, such as

28/ (...continued)

made. The employer would then be permitted to

maintain the discriminatory policy, effectuating

the scientifically invalid "negative inference."

29/ See Affidavit of Anthony R. Scialli,

M.D., Jt. App. 179-80 44.

|

males with high blood pressure or otherwise address the significance of subtle male

at risk of cardiovascular disease, would ~eproductive injury, which he had

undoubtedly render a similar recommendation previously recognized:

for that population. 39/ The elevation in risk of

spontaneous abortion observed in

In addition to their failure to this combination of a textile

. working wife and a metallurgical

address the conclusions of OSHA and EPA and factory husband suggests that

there were separate mutagenic

their selective citation of the data, effects on the germ cells of

i whi sulted

Johnson Controls' experts are themselves in_increased spontaneous

abortions when they occurred

guilty of inconsistency and contradiction. together. A combination of

mutagenic effects on

For example, Dr. Whorton testified that spermatogenesis and teratogenic

effects on the embryo could also

lead does not appear to be of "significant have occurred....

functional harm" to the reproductive system These data suggest that two

separate factors are acting in a

of male workers at the current OSHA synergistic manner: one on the

father and one on the mother.

standard of "50 micrograms per deciliter of

whole blood."31/ However, he failed to 31/ (...continued)

set an air lead level of 50 ug/m3 based on an 8

hour time-weighted average. Id.

30/ See Statement of Interest of amicus

curiae, John F. Rosen, M.D. 32/ M. Donald Whorton, Adverse Reproductive

Outcomes: The Occupational Health Issue of the

31/ affidavit of M. Donald Whorton, M.D., Jt. 1980s, 73 Am.J.Pub.Health 15 (1983) (emphasis added)

App. 186, 996-7. This is a misstatement of the (commenting on Hemminki, et al., Spontaneous

OSHA recommended standard for blood lead, which is Abortion in an Industrialized Community in Finland,

40 ug/dl. See Preamble, supra n. 14, at 52963 73 Am.J.Pub.Health 32 (1983). Males working in the

(B) (1). To achieve this level of protection, OSHA metallurgical factory were exposed to lead and

(continued... ) other toxins).

-32- -33-

Neither was readily apparent

(except for one textile factory)

unless the occupations of both

usba and wi were meraged....

One of defendant's experts testified

that fetal exposures to low lead levels

result in a "clear decrement" in mental

development in the child,33/ although he

had co-authored an article that concluded:

With the lead exposed child, if

the environment is rich, if the

infant is constitutionally

robust, and if proper medical

care and educational services are

present, then such an infant

might compensate for any putative

pene | saees damage due to

lead. 34

33/ Affidavit of Paul B. Hammond, Ph.D., Jt.

App. 71-72, 993-4.

34/ Barnschein, Hammond, Dietrich, et al.

The Cincinnati Prospective Study o of Low Level Lead

Exposure and Its Effects on Child Development:

Protocol and Status Report, 38 Envtl. Res. 17

(1985). See also, Dietrich et al., Low Level Fetal

Lead Effect Neurobehavio Devel

in Early Infancy, 80 Pediatrics 721, 729 (1987).

(continued...)

-34-

Another of Johnsen Controls' expert

witnesses has written that lead is "one of

the most dangerous elements to which we

expose workers of both sexes." "The

increase in adverse pregnancy outcome

associated with lead exposure of the mother

or father has been described for

decades. "35/ A fourth expert testified

against EPA proposals to reduce lead in

gasoline and in favor of a higher "action

level" of blood lead in children.38&/

34/ (...continued)

Amici cite this material not in support of its

conclusions but solely for purposes of

demonstrating credibility problems in the record

created in the effort to justify this policy.

32/ scialli, Sexism in Toxicology, 3 Repro.

Tox. 219, 220 (1989) (emphasis added). The author

nonetheless concludes that there is an "absolute

need to protect the fetus." Id.

36/ This testimony was presented by J.Julian

Chisolm, Jr., M.D. on behalf of the International

Lead Zinc Research Organization, the research arm

(continued. . . )

-35-

The policy adopted by Johnson Controls

was stimulated, in large part, by the

efforts of Charles Fishburn, M.D.

Jt.App.153. And see id. at 157-58 (all

women excluded previously). Dr. Fishburn

had previously explained the basis for his

opinion that fertile women should be

excluded from lead-exposed jobs in a letter

submitted to OSHA:

I have taken the position of not

assigning fertile females to lead

exposures since the beginning of my

practice in 1969. @nless the female

38/ (...continued)

of the Lead Industries Association. The "action

level" refers to the blood lead level at which

medical effects might be seen. EPA proposed 15

ug/dl; Dr. Chisolm supported 25-30 ug/dl. Dr.

Chisholm testified against reduction of lead in

gasoline in Regulation of Fuel and Fuel Additives,

1982: Hearings Before the EPA at 696, 713-14;

Automotive Lead Emissions, 1971: Hearings Before

the Panel on Environmental Science & Technology of

the Subcommittee on Environmental Pollution of the

Committee on Public Works, 93d Cong., 2d Sess. 34

(1974). See also Christman v. American Cyanamid

Co., Civ. Action No. 80-0024 (P) (N.D.W.Va.)

Deposition of J. Julian Chisolm, Jr., M.D., Aug.

26, 1983 at 158-73. ~

-36-

is biologically sterile she can

conceive a pregnancy even with the

best methods of birth control....

Even though OSHA and other agencies of

the Federal Government believe that we

3 j for

“‘all populations, "namely, susceptible

»‘groups", it is my opinion that in any

occupational exposure, regardless of

c j i inju or

the development of occupational

disease due to accident....

°

For medical legal reasons, as a

knowledgeable physician I must take

this position in order to protect the

unborn chiid from the pressures of

society. I feel that regardless of

the sophistication of man-made laws

Fhe physician still must abide by the

Laws governing the natural environment

and the laws of nature.

;

.

Oceupational safety and Health Admin.,

Docket H-004 (Lead), Exhibit 236.

Notwithstanding the company's attempt in

fhis litigation to characterize the policy

a& based on newly-developed information,

the public record reflects that it was

=

instead founded on Dr. Fishburn's own

stereotypical "medical legal opinions," in

-37<

disregard of OSHA's views, and in disregard

of the published data at that time

indicating that lead also affects the

offspring of male workers.3//

The narrow litigation focus led the

employer (and the court) to ignore federal

health agencies' findings, to misconstrue

evidence, to cite data selectively, and to

rely on testimony contradicted in the

public record.38/ The improper grant of

summary judgment exaggerated the problem,

but did not create it: even a full trial

37/ A. Hamilton, Lead As a Race Poison,

Industrial Poisons In The United States 111, 114

(1925) (lead may "cause injury to the paternal germ

cell").

38/ credibility problems of the sort

apparent in this case are not confined to

litigation. Individuals have institutional

loyalties and personal stakes that color their

views. See Note, Trans-Science in Torts, 96 Yale

L.J. 428 (1986), Latin, Good Science, Bad

Regulation and Toxic Risk Assessment, 5 Yale J. on

Reg. 89 (1988). In the regulatory arena, however,

individual views are more diluted and counter-

balanced because of the expanded scope of the inquiry.

-38-

could and should not convert a Title VII

case into a forum for addressing

occupational health policy.

The case-by-case approach to

occupational safety issues would generate

conflicting decisions, as has already

occurred with regard to Johnson Controls'

policy. The California Court of Appeals

recently decided that Johnson Controls'

refusal to hire a fertile woman, pursuant

to the same policy at issue here, violates

state law. Johnson Controls v. California

Fair Employment & Housing Comm., 218 Cal.

App. 3d 517 (1990). That court disagreed

with the Seventh Circuit about the

scientific validity of the policy, relying

heavily on the findings made by OSHA.

Unlike the Seventh Circuit, the

California court incorporated the technical

-39-

assessments made by OSHA, 22/ and did not

attempt to replicate an extensive and

technical process that poses unacceptable

demands on both the litigants and the

courts, for which, as this case reveals,

they are ill-equipped.

B. The Court Below Iqnored Necessary

Elements Of Risk Assessment And

Risk Management That Are Critical

To Protecting All Workers.

Achieving rational workplace health

protection requires both "risk assessment"

and "risk management," to identify

unacceptable risks to health and well-being

and to undertake rational steps to reduce

39/ This is entirely appropriate when the

regulatory agency has considered the very issues

raised in the lawsuit. Employers are compelled to

seek guidance from OSHA to address new occupational

health problems, precisely because the statute does

not allow employers to exercise discretion in

deciding how to cure such problems. See General

Electric Co. v. Secretary of Labor, 576 F. 2d 558,

561 (3d Cir.1978).

-40-

or eliminate them.42/ The process has been

similarly described for many kinds of

health risks:

Risk assessment defines the

adverse health consequences of

exposure to toxic agents....Risk

management combines the risk

assessment with the directives of

regulatory legislation, together

with socioeconomic, technical,

political and other considera-

tions, to reach a decision as to

whether or how much to controls

exposure to the suspected toxic

agents.

Risk assessment includes one

or more of the following

40/ Translating scientific assessments into

legal or regulatory decisions is a task fraught

with many challenges under the best of

circumstances. See, e.g., Latin, supra n. 38;

Rote, supra n. 38; Huber, Safety and the Second

py 85 Col. Rev.L. 277 (1985) . While not

trouble-free, the reoculatory process offers certain

advantages over the case-by-case approach to

occupational health. Rulemaking encompasses a much

greater range of opinions, which are in tum

evaluated by trained scientists. The enabling

statute may provide policy directives that are

critical in the absence of scientific certainty.

For example, the OSH Act specifically instructs the

Secretary to promulgate standards on the basis of

"the best available evidence," in order to avoid

regulatory paiaiysis. 29 U.S.C. §655 (b) (5).

-41-

components: hazard identifica- data is essential to identify and quantify

tion, dose-response assessment, ; oss

exposure assessment, and risk risks; 2) evidence of injury to the male

characterization.

reproductive system is highly significant

Reproductive risk assessment may require

and cai. ot be disregarded simply because

certain additional considerations: Saha ae

its full significance for pregnancy outcome

The level of concern for a

developmental toxic effect is may not yet be known; and 3) risk

related to several issues,

including the relative toxicity management requires consideration of the

of an agent to the offspring

versus the adult animal, and the benefits and detriments of various policy

longterm consequences of findings '

in the fetus or neonate. 42/ options, all technologically feasible means

The court of appeals misapprehended of reducing or eliminating risks, and

the basic approach necessary to evaluate policies that will encourage adoption of

the risks of lead exposure, as evidenced by risk-free alternatives. Because the court

its disregard for certain critical below apparently perceived its task as

principles: 1) reliance on experimental simply resolving a dispute between a group

of workers and their employer, and failed

41/ fnvironmental Protection Agency,

Guidelines for Carcinogenic Risk Assessment to appreciate the ramifications of the

(hereinafter, "EPA Cancer Risk Guidelines"), 51

Fed. Reg. 33992, 33993 (1986). ruling for all Johnson Controls' workers

42/ Environmental Protection Agency, and others, this essential inquiry was not

Guidelines for the Health Assessment of Suspect

Developmental Toxicants (hereinafter, "EPA even attempted.

Developmental Risk Guidelines"), 51 Fed. Reg.

34028, 34033 (1986).

-42- -43-

1. The Relevance of Experimental

Data In Risk Assessment.

As evidenced in virtually all federal

regulations dealing with toxic risk

assessments, experimental data based on

studies of animals are a critical element

of the process of risk assessment. Human

epidemiological studies

are inherently capable of

detecting only comparatively

large increases in the relative

risk....Negative results cannot

prove the absence of (risk]...43

Human epidemiology "can rarely be used to

make a causal inference," id. at 33995, and

requires assessment after the fact of human

injury, which experimental data seeks to

predict and avoid. Furthermore, as a

practical matter,

[rJjeliable epidemiologic data on

long-term human risks cannot

43/ EPA Cancer Risk Guidelines, supra n. 41,

51 Fed. Reg. at 33995-96.

-44-

exist for recently introduced

toxic substances and is rarely

available for chemicals in

longstanding use. Thus, most

attempts to regulate toxic

hazards must rely on extrapola-

tion of human risks from animal

test data.

The significance of animal data in

assessing human reproductive risk has been

specifically noted:

[A]n agent that produces an

adverse developmental effect in

experimental animal studies is

assumed to pose a potential

hazards to humans.... This

assumption is based on the

comparison of data for known

human developmental toxicants. In

almost all cases, the

experimental animal data would

have predicted a developmental

effect in humans.

44/ Latin, supra, n. 38 at 103.

45/ Environmental Protection Agency, Proposed

Amendments to the Guidelines for the Health

Assessment of Suspect Developmental Toxicants

(hereinafter, "EPA Proposed Amendments to

Developmental Risk Guidelines"), 54 Fed. Reg. 9386,

9390 (1989).

-4 5-

Similarly, in the detection of agents

capable of altering genetic material in

sperm or ova (mutagens), creating a risk of

heritable or transmissible injury to future

generations after exposure of either

parent, it is “appropriate to rely on data

from experimental animal systems...." 46/

This is because "it is difficult to obtain"

epidemiologic data: large populations need

to be studied over an extensive time

period, since some heritable disorders may

only be observable after two or more

generations. Reliance on experimental data

avoids some of these problems and, in

addition, is justified because "chemicals

causing genetic effects in one species or

test system frequently cause similar

effects in other species or systems." Id.

46/ Environmental Protection Agency,

Guidelines for Mutagenicity Risk Assessment, 51

Fed.Reg. 34006, 34008 (1986).

-46-

Animal data is thus particularly

important in assessing reproductive risks,

since human experimentation is

unacceptable. In fact, animal data might

have predicted that dibromochloropropane

("DBCP") could cause male sterility,4/

and that thalidomide would cause birth

defects.48/ EPA notes:

Comparisons of human and

experimental animal data have

been made for a limited number of

agents that are human

developmental toxicants. In

these comparisons, there was

almost always qualitative

concordance of effects between

humans and at least one species

tested....

47/ Dep't of Labor, Occupational Safety and

Health Admin., Occupational Exposure to 1,2-

Dibromo-3-—Chloropropane (DBCP), 43 Fed.Reg.11514,

11517 (1978); Environmental Protection Agency,

Intent to Cancel Pesticide Products Containing

Dibromochloropropane (DBCP), 50 Fed. Reg.1122

(1985) (DBCP also mutagenic and carcinogenic in animals).

48/ EPA Proposed Amendments to Developmental

Risk Guidelines, supra n. 45, 54 Fed.Reg. at 9390.

-47]=-

Id. Because of the desire to avoid

tragedies like those associated with DBCP

and thalidomide, 42/ virtually every federal

agency charged with the regulation of

substances that could have adverse health

effects relies on experimental data.22/

Yet the court of appeals discounted

49/ fvidence of an agent's toxicity

ordinarily prompts removal of the toxic agent. For

example, DBCP was quickly banned for most uses, and

several employers voluntarily suspended its use

even before they were required to. See 43 Fed.Reg.

11514-15 (1978) (OSHA) and 50 Fed.Reg.1123-24

(1985) (EPA). Thalidomide was never approved by the

FDA, even though it may provide valuable treatment

for leprosy and other diseases. Blakeslee, Scorned

Thalidomide Researched Anew, New York Times, Apr.

10, 1990, C3. In the occupational context,

however, primarily in industries in which women

workers are in the minority, evidence of pregnancy

related risks, even when accompanied by other

risks, has prompted the removal of women workers,

not efforts to reduce the hazard. See Paul, et

al., Corporate Response to Reproductive Hazards in

the Workplace: ts of j Work and

Health Survey, 16 Am.J.Indust.Med. 267 (1989).

50/ See the extensive discussion of animal

data in the regulatory context, and court decisions

approving reliance on such data, in the brief

amicus curiae for the Natural Resources Defense

Council.

-48-

evidence of risk derived from animal data

as “speculative and unconvincing," and not

"solid scientific data." Pet.App. 34a.2!/

In so finding, the lower court ignored

evidence that health regulators and most

scientists deem critical in assessing risk.

2. The Significance Of Evidence

Of Male Reproductive

Dysfunction

The court of appeals discounted

evidence of male reproductive injury,

reducing it to evidence of "changes in

sperm shape." Pet.App. 34a. Even if the

record in the case went no further, which

it does, such injury would still merit

51/ Ironically, expert opinion on which the

court relied was also based on animal data. See,

e.g., Deposition of E.K.Silbergeld, Ph.D., Feb. 18,

1986, at 49-52, specifically cited by the lower

court. Pet. App. 15a. Moreover, the UAW relied on

more than "just" animal studies. See, for example,

Jt. App. 202-22 (Silverstein Deposition). In other

contexts, industry representatives have challenged

the significance of human data of reproductive risk

on methodological grounds. E.g., United

Steelworkers v. Marshall, 647 F.2d at 1257-58.

-49-

attention and concern in developing

workplace health policies.

Male exposures to toxic agents can

affect not only a couple's fertility but

also the course of pregnancy, pregnancy

outcome, and potentially the health of a

future child: "The effects of parental

exposure before conception to agents toxic

to reproductive functions may be evident as

reduced fertility, unsuccessful

fertilization or implantation, or an

abnormal fetus." Centers for Disease

Control, Leading Work-Related Diseases and

Injuries -- United States, 34 MMWR 537

(1985) .22/ This is because

52/ Toxic substance can affect the normal

development of the fetus at three stages of the

reproductive process. Gametotoxins are substances

which cause defects to the egg or sperm prior to

conception, thereby impairing the exposed

individual's ability to contribute to the

conception of a healthy fetus. Mutagens cause

alterations in the chromosomal structure or the DNA

(continued. . . )

-50-

[a]dverse pregnancy outcomes can

occur as a result of

preconception damage to the germ

line of the male or female.

Mutagenic damage to the DNA

contained in sperm or ova can

result in heritable defects

leading to embryolethality,

congenital malformations, or

genetic disease in offspring

-..-Paternal exposures may be

responsible for adverse pregnancy

outcomes. Mutagenic insult to

developing spermatozoa, for

instance, can have adverse

consequences both for the male

himself and for the fetus.

EPA agrees that "adverse effects on the

developing organism...may result from

exposure prior to conception (either

52/ (...continued)

molecule in the adult male and female _ reproductive

cells or fetal cells, and can be manifested by

abnormal fetal development (including birth

defects) and genetic defects in later generations.

Teratogens are substances that operate directly on

the fetus and impair normal growth after

conception. Strobino, Klein & Stein, Chemical and

Physical Exposures of Parents: Effects on Human

Reproduction and Offspring, Early Human Development

371 (1978) at 371-378.

53/ M.E.Paul, Reproductive Fitness and Risk,

3 Occupational Medicine: State of the Art Reviews

323, 328 (1988).

-51-

germ cells. Exposure of males to

parent) ."24/ The consequences can be

toxic agents may lead to sperm

severe: | abnormalities in their progeny.

However, transmissible germ-cell

may be inherited by future absence of an warning

generations and may contribute to indicator....

genetic disease....Such genetic

Mutations carried in germ cells | mutations could exist in the

abnormalities can lead to | Sperm studies may act as a kind of

structural or functional health

impairments. These conditions may | early warning system for reproductive risk.

be expressed in utero; at the

time of birth; or during infancy, EPA has recognized the "unique

childhood, adolescence, or adult

life; they may be chronic or vulnerability of the male reproductive

acute in nature.

| system since toxic agents, acting through a

Evidence that an agent causes ; ;

variety of direct and indirect pathways,

alterations in sperm shape is’ particularly

can evoke adverse responses. "2// Indeed,

important,

NIOSH recommends studies of semen quality

[bjecause of the observed

correlation between an agent's to “help identify workplaces where some

mutagenicity and its ability to

induce abnormal sperm forms....An types of hazards to reproduction exist,

increase in abnormal sperm mor-

phology has been considered preferably before irreversible testicular

supportive evidence that the

agent has gained access to the

54/ EPA Developmental Risk Guidelines, supra 56/ Environmental Protection Agency, Proposed

n. 42, 51 Fed.Reg. at 34030. Guidelines for Assessing Male Reproductive Risk, 53

Fed.Reg. 24850, 24858-59 (1988) (references

55/ EPA Guidelines for Mutagenicity Risk omitted) .

Assessment, 51 Fed.Reg. at 34007 (1986). See also

EPA Proposed Amendments to Developmental Risk S7/ Id. at 24852.

Guidelines, supra n. 45, 54 Fed.Reg. at 9390.

-52- =-§3-

damage or other profound disorders of

reproduction occur. "28/

Numerous studies suggest a correlation

between preconception paternal occupational

exposures and illness or injury in later

born children. Most recently, childhood

cancer has been traced to fathers'

preconception occupational radiation

exposure. 229/ Effects on offspring of male

58/ ass'n of Schools of Public Health and

National Institute for Occupational Safety and

Health, Proposed National Strategies for the

Prevention of Leading Work-Related Diseases and

Injuries, Part 2, at & (1988). This document notes

that "({a]ll undisputed episodes of occupational

disorders of reproduction in the recent past have

involved male workers." Id.

59/ M.J. Gardner, et al., Results of Case-

Control Study of Leukaemia and Lymphoma Among Young

People Near Selafield Nuclear Plant in West

a

Cumbria, 300 Br. Med. J. 423 (1990). See also

Daniell & Vaughan, Paternal Occupation and Brain

Cancer _in Offspring: A Mortality-Based Case-

Control Study, 14 Am.J. Ind. Med. 299 (1988);

Cassidy, et al., Occupational Hydrocarbon Exposure

Among Fathers of Prader Willi Syndrome Patients

With and Without Deletions of 15g, 44 Am. J. Hun.

Genetics 806 (1989); Olshan, et al., Paternal

(continued...)

-54-

lead workers have long been reported. £0/

Given that approximately 70% of all birth

defects are of unknown origin, &l/ any

rational attempt to address reproductive

health could not ignore evidence of injury

to sperm.

3. Risk Management Is Essential To

Rational Occupational Health

Policy.

39/ (...continued)

Occupational Exposures and the Risk of Down

Syndrome 44 Am.J.Hum. Genetics 646 (1989). Savitz,

aa Cancer, ” Ooauational Medicine State of

“he RE => RET 2 Propiems

me me a (Z. aie & M. Hatch, eds.) 415 (1986)

(reviewing literature). And see Jt.App. 202-22

(Silverstein Deposition).

acy Hamilton, supra n. 37, at 111, 114 ("lead

poisoning in the father affects the offspring

disastrously,...[{n]Jervous disorders' [were most

pronounced] if both parents were leaded," and lead

Causes "injury to the paternal germ cell.") There

is no evidence that this effect has a threshold

below which effects do not occur. Jt.App.228

(Silbergeld Deposition) .

§1/ EPA Developmental Risk Guidelines, supra

n. 42 at 34028.

-"5=<{

As a general proposition, private

litigation focussing on a specific risk or

dispute may fail to advance, and may even

undermine, overall health policy by failing

to undertake a sufficiently comprehensive

analysis.

Litigation is almost certain to

ignore the difficult half of the

excess risk calculation,

dismissing it as too speculative

to be worth the effort.

Nevertheless, if prudent risk

management is the ultimate

objective, we cannot conduct only

one half of the risk

calculation.2

Johnson Controls' policy creates

Additional risks for women workers as well

as their current and future children.

Unemployment, under-employment, and the

resulting poverty occasioned by the denial

of desirable employment to women workers

can have disastrous effects on children and

62/ Huber, supra n. 40 at 326.

-56-

a

the health of pregnant workers, as Congress

specifically recognized in its

deliberations about the importance of full

employment opportunities for women. &3/

In Title VII, Congress struck the balance

so as to recognize these considerations,

and to allow women to make employment-

related risk determinations for themselves.

Thus, the difficult half of the excess risk

calculation, supra p. 56, has already been

addressed, a fact the lower court failed to

appreciate. :

Even if Title VII did not mandate this

result, rational health policy would

. §3/ Industrial employment is particularly

important for unskilled and uneducated women, for

whom few other employment opportunities are

available at decent wages. In addition to loss of

income, women may lose insurance benefits and

suffer in their nutrition, housing, and general

level of well-being, if they are denied this type

of employment. These effects are documented in the

Brief amici curiae,of the American Civil Liberties

Union, et al.

-57-

require consideration of these risks as

well as alternatives to the policy at

issue, including industrial hygiene

technology that is available to reduce

risk. The decision below would permit

decisions based on specific evidence of

implementation costs. This result rewards

the least efficient employers and,

discourages innovation in the industry as a

whole. Individual employers, may not

always be motivated to explore innovative

approaches to workplace safety problems,

precisely because they are likely to cost

something to implement, and may disrupt

production.

Regulatory agencies develop policy

based on industry-wide cost/benefit and

consideretions. OSHA is directed to

develop "innovative methods, techniques,

and approaches for dealing with

-58-

occupational safety and health problems,"

29 U.S.C. §651(b) (5). The feasibility

requirement of the statute is directed to

the industry as a whole, and not to

individual employers, precisely because the

goal is to institutionalize the best

technology available, rather than the

worst. 84/

Regulatory agencies, have access to

a broad base of information about

technology that is currently available or

in development, have the expertise to

evaluate its uses, and can assess costs and

feasibility for the industry as a whole.

The decision below fails to account for

specific proposals in the industrial

hygiene literature for methods of reducing

84/ See United Steelworkers of America v.

Marshall, 64 F.2d at 1264-66; Asarco, Inc. v.

Occupational Safety and Health Admin., 746 F.2d

483, 495-6 (9th Cir. 1984).

-59-

lead exposures in battery making

facilities. Ventilation, engineering

controls, isolation of certain tasks, air

plenums, and vacuum systems are among the

techniques recommended in standard

texts,£&5/ and more innovative approaches

are being explored. &6/ Knowledge of all

these developments is critical to risk

management as well as the feasibility

assessment under OSHA.

These principles explain why Johnson

Controls is obligated to seek guidance from

§5/ Bullock, "Lead-Acid Battery

Manufacturing," in Industrial Hygiene Aspects of

Plant Operations 599-633 (Cralley and Cralley,

eds.) (1985). Mr. Bullock, corporate industrial

hygienist at Johnson Controls, demonstrates the

success of a number of these methods in reducing

lead levels below 30 ug/dl. Id. at 619.

66/ For example, the Toxic Use Reduction

Institute in Massachusetts was established in part

to undertake research on substitution of safe

substances for hazardous ones. Geiser, Toxics Use

Reduction and Pollution Prevention, 1 New Solutions

1 (1990). Other states are considering similar

approaches. Id.

-60-

OSHA in achieving compliance with the Lead

Standard or improving on it. For example,

OSHA is undoubtedly aware of the

substantial body of scientific evidence on

substitutes for lead-acid batteries. For

example Nickel-Cadmium (NICAD) batteries

are currently used in some situations.

Another alternative is the Nickel-Iron

(Edison) battery which was used extensively

for engine starting in the first

automobiles (1910-20) and is currently used

as the only means of energy in underground

trains used in mining operations. Research

and development of this battery as a

possible substitute for lead-acid batteries

is ongoing. &2/

There is a substantial federal effort

to study new battery technology for all

§7/ See generally Perez, The Complete Battery

Book (1985).

-6l1-

applications. The Department of Energy has

developed an accessible data base of

characteristics of batteries which could be

used to explore substitutes for the lead-

acid battery. £8/ Indeed, research on Zinc-

Bromide batteries in Johnson Controls has

been sponsored by the federal government

for the last 5 years, £2/ a fact that was

omitted from the record in this case.

Even .f various alternatives and

control technologies were not possible, and

this type of work could not be made safer,

there would still be no basis for "solving"

the workplace health problem by arbitrarily

68/ Burke, et al., "A Battery Data Base for

Electric Vehicle Applications" in Proceedings of

5 t Conf on ications

and Advances (1990).

§9/ Dodge and Elder (Advance Battery Business

Unit, Johnson Controls, Inc.), "Recent Advances in

Zinc/Bromide Technology at Johnson Controls Inc."

in Proceedings of the 5th Annual Battery Conference

on Applications and Advances (1990).

-62-

discriminating. This situation would

represent the quintessential risk

management problem that must be resolved on

a national level, by a determination

whether the product is essential, whether

it should be banned, or whether public

funds should be expended to reduce or

insure risks if the barrier to safety is

cost-based. These decision will depend on

as objective an assessment as possible of

the precise nature of the risks and the

state of technology for reducing them, as

well as policy considerations. As this

Court has noted, reviewing technical

arguments, balancing competing interests,

or creating "high policy" "is the business

of elected representatives." See, e.g.,

Diamond v. Chakrabarty, 447 U.S. 303, 317

(1980) (court's function to enforce plain

language of federal statute).

-63-

Because science can so rarely, if

ever, provide definitive answers, Congress

wisely established policies in the OSH Act

and Title VII to secure non-discrimination

in employment and to achieve workplace

safety at the most protective level

feasible. The dispositive "risk

management" decision in this- case has thus

been made. Deviation from the

Congressional choices led the court below

to endorse an approach that, for the

reasons set out above, would ultimately

disserve the public health and the very

individuals the policy purports to protect.

-64-

CONCLUSION

Wherefore, amici urge the Court to

reverse the decision of the Seventh Circuit

and remand with instructions to enter

judgment for petitioners.

Respectfully submitted,

NADINE TAUB

(Counsel of Record)

Rutgers University

School of Law

15 Washington Street

Newark, New Jersey 07102

(201) 648-5637

Attorney for Amici

Curiae

SUZANNE L. MAGER

Massachusetts Special Attorney General

for the Massachusetts Department of

Public Health and the Executive Office

of Labor

15 Tremont Street

Boston, Massachusetts 02111

Of Counsel

-65-

| APPENDIX

: : Statements of Interest of Amici Curiae

The AMERICAN PUBLIC HEALTH

ASSOCIATION, founded in 1872, is a non-

governmental society whose membership,

- : : i 4 including its state and local affiliates,

is comprised of approximately 50,000 health

professionals interested in promoting high

scientific standards, action programs and

public policy for good health. Its

reproductive health policy, adopted in

1979, “condemns the corporate practice of

forcing women to choose between their jobs

and the right to reproduce [and urges

governmental agencies to develop]

occupational exposure standards that

protect women, men, and the fetus."

: La The AMERICAN NURSES' ASSOCIATION

4 both the professional association for

ae | om registered nurses and a labor organization.

*- . 5k i

Sk esy ' . ; Fe: A-1

Through its constituents, ANA represents

registered nurses and other health care

workers who are at continuous risk of

workplace exposure to mutagenic and

teratogenic materials. ANA opposes sex-

based occupational exclusion pc:icies which

feil to mitigate reproductive risks for

both sexes and which have a

disproportionate economic impact on women.

The AMERICAN SOCIETY OF LAW & MEDICINE

was founded in 1972 to provide a forum for

interdisciplinary discussion of the complex

issues at the interface of law, medicine

and health. Ongoing informational efforts

include the publication of two quarterly

journals, Law, Medicine and Health Care, a

leading forum for interprofessional

analysis of current issues, and the

American Journal of Law and Medicine, a law

review co-published with the Boston

University School of Law. For the reasons

stated in the attached brief, the Society

opposes discriminatory policies that

undermine public health goals.

The ASSOCIATION FOR WOMEN IN SCIENCE

(AWIS), a national educational and

scientific organization of 3,200 members,

works to expand educational and employment

opportunities for women in diverse

scientific fields. AWIS opposes

discrimination in the workplace and has

worked to establish greater equity in the

labor force. In addition, AWIS opposes the

misuse, abuse or inappropriate application

of science. AWIS favors the development of

workplace standards that establish healthy

working conditions for all workers; this

includes the development of standards that

protect women, men and the fetus.

The DEPARTMENT OF PUBLIC HEALTH,

COMMONWEALTH OF MASSACHUSETTS (DAVID H.

MULLIGAN, COMMISSIONER) was founded one

hundred and twenty years ago. It is the

oldest state department of health in the

United States. The Department is mandated

to "take cognizance of the interests of

life, health, comfort and convenience among

the citizens of the Commonwealth." M.G.C.

c. 111 §5.- The Department has an interest

in protecting the health of its citizens in

the workforce and their families. In 1988

the Department published the findings from

its survey of Massachusetts employers'

reproductive hazards policies and programs

-- the only such study that has been

conducted in the United States.

The ENVIRONMENTAL DEFENSE FUND (EDF)

is a non-profit advocacy organization with

over 150,000 members nationwide. Since its

founding in 1967, EDF has been involved in

efforts to reduce human exposure to

“environmental toxins, including substances

such as lead. EDF has participated

extensively in administrative, judicial and

legislative proceedings on the control of

lead in gasoline, drinking water,

incinerator ash, point source emissions,

consumer products, and in the workplace.

EDF's concerns about lead toxicity extend

to male-mediated effects of lead on

reproductive function as well as female-

mediated reproductive effects and other

health effects on adults and children of

both sexes.

The EXECUTIVE OFFICE OF LABOR,

COMMONWEALTH OF MASSACHUSETTS (PAUL J.

EUSTACE, SECRETARY OF LABOR) was

established to promote and protect the

legal, economic, health and safety

interests of Massachusetts workers.

Through its Department of Labor and

Industries the Secretariat investigates and

regulates places of employment to prevent

and address workplace health hazards,

including reproductive health hazards, in

order to protect the health and safety of

workers. Massachusetts was one of the

first twelve states in the country to

realize the importance of workplace health

hazards by creating in 1934 a Division of

Occupational Hygiene within the Department

of Labor and Industries to investigate

workplaces and promote health and safety

education.

The OCCUPATIONAL AND ENVIRONMENTAL

REPRODUCTIVE HAZARDS CLINIC AND EDUCATION

CENTER, University of Massachusetts Medical

Center (Maureen E. Paul, M.D., Director)

opened in March of 1988 in response to

growing public and provider concerns about

toxic exposures and the special needs of

patients faced with potential reproductive

health risks. The main objective of the

Center is to provide to patients and health

care providers accurate and up-to-date

information regarding the effects of toxic

exposures on the reproductive health of

women as well as men, whose reproductive

health needs are often ignored. Dr. Paul's

publications in the area of reproductive

health include: Reproductive Fitness and

Risk, 3 Occup. Med. 323 (1988); Corporate

Response R oductiv s_in the

Work e: sults o ami Work, and

Health Survey, Am. J. of Indust. Med. 267

(1989); Reproductive Hazards in the

Work 4 t itione eds to

Know About Chemical Exposures, Obstetrics &

Gynecology 921 (1988).

The SOCIETY OF AMERICAN LAW TEACHERS

("SALT") is a national organization of over

five hundred legal educators at over one

hundred law schools. SALT is committed to

promoting public service by the legal

professions and to advancing justice and

protecting human rights. SALT is committed

to the goals of Title VII, which include

equal employment opportunities for women.

SALT is also concerned about workplace

safety for all workers and their children.

SALT believes that the Court of Appeals for

the Seventh Circuit erred in upholding

Johnson Control's fetal vulnerability

policy. It objects to Johnson Control's

policy because it denies employment health

of all workers and their children.

TOXICS USE REDUCTION INSTITUTE,

UNIVERSITY OF LOWELL, MASSACHUSETTS is a

multi-disciplinary research, education and

policy center which will commence formal

operations in the fall of 1990. The

Institute will sponsor research, conduct

training and provide technical support to

promote reduction in the use of toxic and

hazardous chemicals in industry and

commerce.

NICHOLAS A. ASHFORD, J.D., PH.D. is

Associate Professor of Technology and

Policy at the Massachusetts Institute of

Technology. He has written extensively

regarding reproductive hazards in the

workplace. His publications include "Legal

Considerations of Reproductive Hazards in

Industry in the United States," in Pregnant

Women at Work, edited by Geoffrey

Chamberlain (The Royal Society of Medicine

and The Macmillan Press Ltd., London,

1984), and "The Control of Reproductive

Hazards in the Workplace: A Prescription

for Prevention," (with Charles C. Caldart),

Industrial Relations Law Journal, Volume 5,

Issue 3, pp. 523-565 (1983).

DAVID BELLINGER, PH.D., is a professor

at the Harvard University School of

Medicine. He has done extensive research

on the effects of lead on childhood

development. He joins this brief because

his research was cited by Johnson Controls

as supporting its sex-based policy, a

conclusion he believes is insupportable.

He seeks to ensure that his research is

placed in its proper biological and

epidemiological context.

_ EULA BINGHAM, M.D. is a professor of

environmental health at the University of

Cincinnati College of Medicine. She was

the Assistant Secretary of Labor for the

Occupational Safety and Health

Administration (OSHA) from 1977 through

January, 1981, during which time OSHA's

lead standard was promulgated. Thus, she

was the government official responsible for

reviewing and evaluating the submissions

regarding OSHA's lead standard.

VILMA R. HUNT, B.D.S. is Consultant in

Environmental and Occupational Health;

Visiting Lecturer at Harvard School of

Public Health; Adjunct Professor at the

University of Lowell, Occupational Health

Group. She has been Deputy Assistant

Administrator for Health Research, Office

of Research and Development, EPA; member of

EPA's Science Advisory Board; Dr. Hunt has

written extensively on health issues of

concern to working women.

SUSAN KLITZMAN, Dr. P.H. is Director,

Environmental Epidemiology Unit, New York

City Health Department and Co-Chair of the

Occupational and Environmental Health

Committee of the National Women's Health

Network.

PHILIP J. LANDRIGAN, M.D. is The Ethel

H. Wise Professor and Chair of the

Department of Community Medicine at the

Mount Sinai School of Medicine.

Previously, he held numerous positions at

the National Institute for Occupational

Safety and Health (NIOSH) and the Centers

for Disease Control (CDC), including Chief

of Environmental Hazards Activity, Cancer

and Birth Defects Division at CDC.

MARC ALAN LAPPE, PH.D. is Professor of

Health Policy and Ethics in the College of

Medicine of the University of Illinois at

Chicago. He is the author of numerous

publications which deal with toxic

substances and health, the most recent of

which is Chemical Deception, Ten Myths

About Toxic Substances (forthcoming), and

has authored articles on metal toxicity

during pregnancy and the ethics of

screening for differential genetic

susceptibility to airborne hazards. He is

a Fellow of the Hastings Center and a

founding member of the Bioethics Committee

of the March of Dimes/National Foundation.

MARVIN S. LEGATOR, M.D. is Director of

Environmental Toxicology, Department of

Preventive Medicine and Community Health,

University of Texas Medical Branch. He

served for ten years as Chief, Genetic

Toxicity Branch of the FDA, and was

Chairman of the March of Dimes Committee on

Reproductive Hazards. Dr. Legator has

written extensively in the areas of

genetics and toxicology.

DONALD R. MATTISON, M.D. is a

Professor of Obstetrics and Gynecology and

Professor of Interdisciplinary Toxicology

at the University of Arkansas for Medical

Sciences. He is the Chairman of the Human

Toxicology and Risk Assessment Progran,

National Research Council of the National

Academy of Sciences and has published

extensively on reproductive toxicology.

DAVID MICHAELS, PH.D., M.P.H. is

Director of the Division of Public Health,

Department of Epidemiology & Social

Medicine, Montefiore Medical Center, Albert

Einstein College of Medicine.

HERBERT L. NEEDLEMAN, M.D., is a

professor at the University of Pittsburgh

School of Medicine who has done extensive

research on the effects of lead on

childhood. He joins this brief because his

research was cited by Johnson Controls as

supporting its sex-based policy, a

conclusion he believes is insupportable.

He seeks to ensure that his research is

placed in its proper biological and

epidemiological context.

ANTHONY ROBBINS, M.D. is Professor of

Public Health, Boston University School of

Public Health, Environmental Medicine

Program. Dr. Robbins was the Director of

the National Institute for Occupational

Safety and Health ("NIOSH") from 1978-1981.

JOHN F. ROSEN, M.D. is the Head of the

Division of Pediatric Metabolism at the

Albert Einstein Coliege of Medicine. In

1984, he served as the Chairman of the

Centers of Disease Control's Advisory

Committee on Childhood Lead Poisoning

Prevention, which has been cited by Johnson

Controls in support of its policy. Dr.

Rosen does not concur with the conclusions

drawn by Johnson Controls from this report.

The CDC looked only at the devastating

effects of lead on children and concluded

that all exposures should be reduced. A

study focussing on other subgroups in the

population, such as males with high blood

pressure or otherwise at risk of

cardiovascular disease, would undoubtedly

render a similar recommendation for that

population. Dr. Rosen's research has

demonstrated lead's toxic effects on all

segments of the exposed population.

Recently, he and others have documented a

risk of endogenous lead poisoning in

children with pre-existing lead exposures

who are immobilized as a result of bone

fracture, and this is a result that would

be expected to occur in adults as well.

JEANNE STELLMAN, PH.D. is Associate

Professor of Clinical Health, School of

Public Health, Columpia University. Dr.

Stellman has been Executive Director of the

Women's Occupational Health Resource

A-i6

Center, Editor of Women and Health, and has

published widely on the subject of the

health needs of women workers. Dr.

Stellman is a current recipient of a

Guggenheim Fellowship.

DIRECTORS OF OCCUPATIONAL MEDICINE PROGRAMS

The following are directors of

university and hospital affiliated

occupational medicine programs. As

specialists in the relationship between

diseases and work or environment, they are

especially concerned with preventing

occupational health hazards. Their

organizational affiliations are listed for

identification purposes only:

EDDY BRESNITZ, M.D., Director of

Occupational and Environmental Medicine at

the Medical College of Pennsylvania,

Philadelphia, Pennsylvania.

MARK CULLEN, M.D., Director of Yale-

New Haven Occupational Medicine Program.

STEVE HESSL, M.D., Associate Professor

of the Medical Section of Environmental and

Occupational Medicine, University of

Illinois at Chicago School of Medicine.

LINDA ROSENSTOCK, M.D., University of

Washington, Occupational Medicine Clinic.

LAURA WELSH, M.D., Director,

Occupational Medicine Program, George

Washington University School of Medicine.

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