# Amicus Curiae Brief — International Union, United Automobile, Aerospace & Agricultural Implement v. Johnson Controls, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0705%3A21 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1991 - **Citation:** 499 U.S. 187 ## Text 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" : . >. . >. 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 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. Aton RY Se wa ~~. es - ae ee ee See: ee) A eee, tA Ay ee =”