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

I «Supreme Court, US.

i FL DRE DD.

NIOL, JR.

CLERK

No. 89-1215 Jue me ]

IN THE —

Supreme Court of the Wuited States

OCTOBER TERM, 1989

J*ITERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE

AND AGRICULTURAL IMPLEMENT WORKERS C

AMERICA, et al.,

Petitioners,

Vv.

JOHNSON CONTROLS, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF AMICUS CURIAE

IN SUPPORT OF RESPONDENT

BY THE INDUSTRIAL HYGIENE LAW PROJECT

Jack Levy,

(Counsel of Record)

19-21 Warren Street

New York, N.Y. 10007

(212) 732-3358

Ilise Levy Feitshans,

John M. Kasdan

(Attorneys for Amicus Curiae)

Columbia University School of Law

435 West 116th Street

New York, N.Y. 10027

(212) 854-2686

TABLE OF CONTENTS

Cee GE Rs o6 0 66 vcccnsctsstdessnnnnes iiy

Eutavest GF AmmGus CUTIES +. ccccccccccccescceccces

Summary GF ASMMOM cccccccccccccccccccecceses l

RANE cccccscnsesscecsucsdcceuseastessauabe 4

I. T.tle VII Does Not Adequately Address the Problems

Raised by Fetal Protection Policies

A. Title VII Was Not Designed To Address

Issues of Health and Welfare ........... ves 4

B. Title VII's BFOQ and “Business Necessity”

Defenses Are Inapposite When Analyzing Risks

of Reproductive Harm ........cccccccscees 8

C. Title VII Precedents Regarding Fetal

Protection Do Not Adequately Address the

Problems Raised by Reproductive Health

Hazards in the Workplace--+++++++++++++- 10

D. Occupational Health Issues, Unlike Policies

that Prevent Discrimination, Require a Careful

Weighing of Epidemiological Evidence on a

Substance by Substance and Worksite by

Worksite stasis and EEOC Lacks This Expertise.

II. Government Authority Exists to Protect Reproductive TABLE OF AUTHORITIES

Health Without Reaching Title VII's Civil Rights Issues

Cases

A. The Government's Obligation To Protect American Iron and Steel Institute (AISI) v. OSHA, 577

Health Has Primacy Under the Doctrine of Pe GE vcnccncrcevenercesesssnensac passim

ee cas eccaecesceeese 17

American Textile Manufacturers Institute v. Donovan, 452

B. There is Precedent in the Federal Law U.S. 490 (1981)... cece ee ccc ccc c cece ceccccees 21

Providing Special Occupational Health

Regulations for Fetal Protection............ 18 American Smelting and Refining Company, (ASARCO)

Inc. v. Occupational Safety and Health Review

Commission (OSHRC), 746 F.2d 483 (9th Cir. 1984)...23

III. The US Congress Has Clearly Expressed Its

Intention to Address these Issues City of Los Angeles Dep't. of Water & Power v. Mankart,

GID US. FER (IPA). 2. cccccccccccccccccccccvcceces 6

A. There Exists Jurisdiction Under OSH Act For

IV. Conclusion.

the Secretary of Labor to Resolve These Issues

B. The US Congress Has Expressed Its Intention

to Create Special Legislation to Address

Reproductive Health Hazards and Judicial

Restraint Requires that Courts Defer to the

Legislature to Fill Any Regulatory Void In

Existing Laws ....ccccccccccccccccccccces 24

Dothard v. Rawlinson 433 U.S. 321, at 328 (1977)... 4,5

Euclid v. Ambler Realty 272 U.S. 365 (1926). 18

Gedulig v. Aiello 417 US 484 (1974) ................. 4

General Electric Co. v. Gilbert 429 US 125 (1976). ; ..9,10

Griggs v. Duke Power Co., 401 U.S. 424, 431 .....--45- 4

Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th

Ee FOOD ceccccccccccccccesccccvcceccecccccecess 12

Industrial Union Department, AFL-CIO(IUD) v. Hodgson,

499 F2d 467 (DC Cir. 1974). 0... cece eee eee eee passim

IUAW v. Johnson Controls, 886 F.2d 871 (7th Cir. 1989).

6ebb6bG0dsh0GNsesEedndeceesensceeesacés 5, 14, 15

Jacobsen v. Massachusetts, 197 U.S. 11 (1905),--.--- 17

Nashville Gas Co. v. Satty 434 US 136 (1977)........ 6

OCAW v. American Cyanamid, 741 F2d 444(D.C. Cir.

SODOD. cecccccccecesavesscccsesccesebecsecene passim

Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989). 8» 9

United Steelworkers v. Marshall, 647 F.2d 1189 (D.C. Cir.

1980), cert denied 453 U.S. 913 (1981). ......... passim

Wright v. Olin, 697 F.2d 1172 (4th Cir. 1982). ...... 10, 11

Statutes and Regulations

Civil Rights Act of Title VII, 42 U.S.C. Section

200De-2(a), Section TUBA). occcccccccccccccccccces 4

Pregnancy Discrimination Act, Pub. L. No. 95-555, 92

Stat. 2076 (42 U.S.C. ZOUD-e(K).. occcccccccccccccces 9

Nuclear Regulatory Commission Regulations, 10 CFR

Sections 19.12-19.32;20.1 et. seq. .....eceeeeees 18, 19

Occupational Safety and Health Act, 29 U.S.C. sec. 651

Ot. OBE, CIGAR) ccccccccccccccscccscccccccesecsces 20

Occupational Safety and Health Act Section Sa(1), 29

Shain, SUS GD CRP PEs 6660000000 c6éeseenns 20, 23

Occupational Safety and Health Administration, Lead

Regulations, 43 FR 52952 (1978).

Other Authorities

American Conference of Government Industrial

Hygienists, Documentation of the Threshold Limit Values

and Biological Exposure Indices Sth Ed. Cinn. Ohio

39 Amencan Jurisprudence 2d Health, Secs. 20;22 (1968

Sy EE Siducdeduscsaadibeddstesseduuica 17

"Sterilization or Your Job”, Comments of Hon. Pat

Williams Congressional Record, March 29, 1990 _.... 5

Corn, Morton. “Exposure Assessment Challenges

Presented by Investigations of Reproductive Effects in

the Semiconductor Industry”, Ch. 14 in forthcoming

ACGIH publication. CoCo ccerrocscccececooooosS 13, 25

Duncan, Allyson K. "Fetal Protection and the Exclusion

of Women From the Toxic Workplace”, Vol 18 North

Carolina Central Law Journal No. 1, (1989). ..... 2.2.11

Encyclopedia of Occupational Health and Safety

(Parmeggianni, L. ed. 1983), International Labour office,

Geneva Switzerland, 2nd. Ed. 1985............ passim

Equal Employment Opportunity Commission, "Policy

Statement on Reproductive and Fetal Hazards Under

Title VII" Fair Employment Practices Manual (BNA)

401:6013 14

Grad, Frank P., Public Health Law Manual, American

Public Health Association, Washington., D.C. (1990), .17,18

Lowrence, W.W., Of Acceptable Risk: Science and the

Determination of Safety, William Kaufman, Inc., Los

Ri Ce ID, aes ccccenscessanssssesecccus 14

Occupational Safety and Health Administration Notice

on Issuance of Final Standard for Workplace Exposure

to Lead, Federal Kegister 43 FR 52952 November 14,

1978

P SOO SSOSOSOCOEHEDONEEEESCCO OOOO OC ECEwEOCCCCS 21

HR 4420, 101st Congress, 2d Sess., (1990) “The

Employee Protection Act of 1990", introduced by Rep.

Pat Williams, (D-Montana) .........ccccceccccces 25

Smith, Neal and Baram Michael, The Nuclear

Regulatory Commission’s Regulation of Radiation

Hazards in the Workplace: Present Problems and New

Approaches to Reproductive Health, 13 Ecology L. Q.

PEP CUNT Kdendbdddinddndedaenedededieeececes 19

Thompson, W. Gilman, The Occupational Diseases: Their

Causation, Symptoms, Treatment and _ Prevention,

Appleton & Co. New York, New York (1914). ..passim

U.S. Congress, Office of Technology Assessment

Preventing Illness and Injury in the Workplace (1985).

Ceo ere rercccecesersccccceceeecccccce 14,15, 16,

U.S. Congress, Office of Technology Assessment,

Reproductive Health Hazards in the Workplace (1985).

INTEREST OF AMICUS CURIAE

The Jndustrial Hygiene Law Project is a group of

professionals who are concerned about legal issues

pertaining to the practice of industrial hygiene. It was

founded by Margaret Levin Phillips, Ph.D., M.H.S., an

industrial hygienist employed in the manufacturing

sector. Dr. Phillips anticipates that she will be involved

in the design and implementation of fetal protection

programs because of her professional expertise. She has

worked in laboratory and manufacturing facilities while

she was pregnant or contemplating pregnancy. Cheryl E.

Amana is a J.S.D. Candidate at Columbia University

School of Law. Ilise L. Feitshans, (Assistant Director of

the Legislative Drafting Research Fund at Columbia

University School of Law) serves as legal counsel for the

project. Ms. Feitshans is also a doctor of science

candidate in public health.

SUMMARY OF ARGUMENT

Title VII was written by the U.S. Congress to

prevent the harms, caused by discrimination in the

workplace, that arise because of unfounded sexual

stereotypes and racial prejudice that has its origins in

social and economic factors beyond the scope of

employment. Title VII was not designed to address

issues of health and welfare. Cases that have tested the

limits of its jurisdiction have consistently deferred to

facially discriminatory policies, when they have been

supported by a health and welfare rationale.

If one accepts the notion that fetal protection

policies constitute prima facie discrimination, employers

will be compelled to allow women into high risk

workplaces, without the benefits of risk assessment,

medical surveillance or other scientific evidence that

health-related administrative agencies, can best review.

Similarly, excluding all women of child-bearing capacity

from such high-risk employment requires unduly

Stretching the narrow exceptions in Title VII,

inconsistent with case law and its legislative history, and

also without providing employers or employees the

benefits of sound scientific evaluation of conditions on

a case-by-case basis. Neither approach provides a viable

solution to high-risk exposures that may affect men

and/or women, or answers the immediate need to

protect fetal health.

Each of those approaches is antithetical to good

industrial hygiene practices (outlined below) and sound

public health strategies articulated in public health laws.

Such preventive strategies typically categorize individuals

in sub-groups according to risk in order to prevent

avoidable or foreseeable harms. Under the doctrine of

parens patriae, state and federal governments have

consistently recognized the need on occasion to abridge

or modify legal views of individual rights, in order to

preserve the public health. Examples abound, including

but not limited to: abrogation of privacy rights in order

to collect and preserve personal data in vital records,

(births, deaths and specified diseases); restriction of the

person, in cases of quarantine; and restriction in the use

of private property without constituting a “taking” in

cases of zoning to prevent pollution or public nuisances.

Federal law regulations also exist that divide groups of

workers according to sub-populations. For example, the

Nuclear Regulatory Commission (NRC) has different

standards for workers under age 18 compared to other

workers. NRC has also proposed regulations that have

2

different standards for the general public, for exposed

employees, and for "fetal exposure” in the event of so-

called “declared pregnancy”.

The U. S. Congress has spoken to these important

occupational safety and health issues in two regards:

First, the Occupational Safety and Health Act of 1970

grants the Secretary of Labor authority to protect

workers "functional capacity” against “recognized

hazards”, including reproductive health hazards in the

workplace. This Respondent has not violated the

relevant OSHA lead regulations, nor been cited by

OSHA for unacceptable practices regarding reproductive

health hazards. And, contrary to Petitioner’s view of

health concerns, weaknesses in OSHA regulations and

the agency’s reluctance to grapple with these issues

should not give rise to the inference that OSHA is not

the proper avenue for jurisdiction of these important

issues. Rather, there is ample precedent for OSHA to

play a more active role in this area without passing

judgement on Title VII Civil Rights claims. Second, Rep.

Pat Williams (D.-Montana) has introduced new

legislation in the U.S.Congress on this subject. He has

stated his intention to hold hearings (as indicated in the

Congressional Record) pending the outcome of the case

at bar. These considerations require judicial restraint, in

deference to the expressed will of the legislature, so that

these issues may be resolved under OSH Act or by new

legislation.

In conclusion, this Court therefore need not reach

Title VII's constitutional issues in order to uphold the

decision of the Court of Appeals in this case, applying

different reasoning but agreeing with the result.

3

ARGUMENT

I. Title VII Does Not Adequately Address the Problems

Raised by Fetai Protection Policies

A. Title VII Was Not Designed to Address Issues

of Health and Welfare

Title VII of the Civil Rights Act was written by

the U.S. Congress to prevent the harms, caused by

discrimination in the workplace, that arise because of

unfounded sexual stereotypes and racial prejudice that

has its origins in social and economic factors beyond the

scope of employment. By contrast, problems of fetal

protection due to occupational exposure to reproductive

hazards are matters within the employer’s direct control.

In enacting Title VII, Congress required “the removal of

artificial, arbitrary, and wumnecessary barriers to

employment when the barriers operate invidiously to

discriminate on the basis of racial or other impermissible

classification.” Griggs v. Duke Power Co., 401 U.S. 424,

431; Dothard v. Rawlinson 433 U.S. 321, at 328 (1977).

Section 703(a) of Title VII, 42 U.S.C. Section 2000e-2(a)

provides: "(a) Employer practices. It shall be an

unlawful employment practice for an employer "(1) to

fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's

race, color, religion, sex, or national origin; or "(2) to

limit, segregate, or classify his employees or applicants

for employment in any way which would deprive or tend

to deprive any individual of employment opportunities or

4

otherwise adversely affect his status as an employee,

because of such individuai’s race, color, religion, sex, or

national origin.”

In International Union of United Auto Workers

(IUAW) v. Johnson Controls, 886 F2d 871 (7th Cir. 1989)

Petitioners argued that any Feta! Protection Policy

constitutes prima facie discrimination in violation of Title

VII, because it prohibits employment of fertile women

in high-exposure jobs in lead battery production. It is

undisputed that lead is one of the most dangerous

environmental toxins and that transplacental transfer of

lead in a pregnant woman to her unborn child can cause

a significant risk of damage. Lead, stored in the body of

a non-pregnant woman, can affect her children years

after her exposure. The expense of defending the

company against liability in tort suits brought by harmed

children, the defense argued, constituted a “business

necessity” defense and also a Bona Fide Occupational

Qualification (BFOQ) exception to Title VII, based on

the “fundamental” differences between the sexes. The

lower court agreed.

Cases that have tested the limits of Title VII

jurisdiction have consistently deferred to facially

discriminatory policies, when they have been supported

by a health and welfare rationale. Dothard v. Rawlinson

433 U.S. 321 (1977) represents the far limit upon the

scope of Title VII jurisdiction in matters of job safety

and health; but the case does not even offer the pretense

of an interest in the scientific underpinnings for its

health and welfare rationale. Title VII's concern for the

job-relatedness of criteria based on height and physical

strength, as discussed in Dothard, was ultimately proven

5

to be less important than the personal and systemwide

security concerns raised by having a female guard in a

maximum security prison. Thus, the justification for

BFOQ in Dothard was rooted in a concern for

occupational health and safety in the broadest sense, but

does not offer criteria or guidelines for resolving the

occupational health issues that it touched upon but could

not resolve. Other cases that discuss the disparate impact

of employment practices regarding differing medical

benefits based on pregnancy Nashville Gas Company v.

Satty, 434 U.S.136 (1977) or women’s ostensibly greater

longevity, City of Los Angeles v. Manhart, 435 U.S.702

(1978) concern health policy-related issues, but the

health and welfare aspects of these cases do not venture

beyond the economic impact of unequal medical or

insurance coverage for different classes of employees.

Petitioners have confused the notion of “risk”

applied in the context of actuarial tables, as discussed in

Manhan,, with the concept of "risk assessment” pursuant

to sound principles of industrial hygiene, Stating, ” While

the theoretical risk of fetal cognitive deficit may exist

whenever a fertile woman is exposed to lead, only a

small percentage of the exposed women will become

pregnant, and only a small percentage of their offspring

will be adversely affected. [citation omitted] Thus,

however, one quantifies the numbers and evaluates the

risks, the only certainty is that the large majority of

women ... lose employment solely because of their status

as 2 woman and not because of any fetal injury caused

by their empluyment.” Brief For Petitioners, Docket No.

89-1215, pp.21-22, emphasis supplied.

This is not practical or sound public health policy.

6

If one accepts the notion that fetal protection policies

constitute prima facie discrimination, employers will be

compelled to allow women into high risk workplaces,

without the benefits of risk assessment, medical

surveillance or other scientific evidence that health-

related administrative agencies can best review.

Similarly, excluding all women of child-bearing

capacity from such high-risk employment requires unduly

Stretching the narrow exceptions in Title VII,

inconsistent with case law and the law’s legislative

history, and also without providing employers or

employees the benefits of sound scientific evaluation of

conditions on a case-by-case basis. Noting that "there is

no legal or logical impediment to” including fetal

protection policies within the scope of the BFOQ

exception, as “an essential element of business

operations”, the Equal employment Opportunity

Commission (EEOC) therefore concluded in its Brief in

Support of Petitioners that "In our view, the contention

that a BFOQ defense is absolutely unavailable for a sex-

based fetal protection policy thus reflects a misreading

of the BFOQ provision of Title VII" Brief of EEOC,

Amicus Curae in support of Petitioners, Docket No. 89-

1215, at pp. 16-18.

Neither approach, however, evaluates the relevant

scientific evidence pertaining to the availability of

industrial hygiene practices, or engineering controls

preventing harm to reproductive capacity or fetal harm.

An approach based on (1) complete exclusion of female

workers of childbearing age and capacity, or (2)

alllowing all workers to obtain employment without

regard to particular high-risk exposures runs the greater

7

risk of paying nominal deference to discrimination

concerns, without affording any workers adequate

industrial hygiene protection. Each of those approaches

is therefore antithetical to good industrial hygiene

practices and sound public health strategies. Neither the

approach offered in behalf of the Petitioners, by EEOC

as amicus, nor the Petitioner’s approach provides a

viable solution to high-risk exposures that may affect

men and/or women, or answers the immediate need to

protect fetal health. This important distinction between

the reach of Title Vil protections and the scope of

occupational health problems makes Title VII inapposite

in the context of Fetal Protection Policies: agencies that

enforce equal employment laws lack the scientific

expertise to effectively prohibit practices that jeopardize

workers’ health.

B. Title VII's BFOQ and "Business Necessity”

Defenses Are Inapposite When Analyzing Risks of

Reproductive Harm

This Court has long held that a policy with a

disparate impact can be justified by "business necessity”.

Title VII's sole statutory exception is the Bona Fide

Occupational Qualification, (BFOQ). The standards for

applying the BFOQ were most recently discussed by this

Court in Price Waterhouse v. Hopkins 109 S.Ct. 1775,

(1989). The Price Waterhouse plurality’s analysis of the

BFOOQ exception indicates that although an employer's

policy or practice may appear discriminatory on its face

or in its outcome, the employer will not be held liable

for violations of Title VII's prohibition against

discrimination if it can be proven that gender was only

8

one of several factors in an employment decision, and

that the employer would have reached the same decision

absent consideration of the prohibited information

pertaining to gender, because, "To begin with, the

existence of the BFOQ exception shows Congress’

unwillingness to require employers to change the very

nature of their operations in response to the statute,” /d.

The fact that there are indicia of sex-based

discrimination is not determinative if the result would

have been the same had the impermissible criteria not

been applied under this standard. Since neither

employers nor employees can be presumed to desire

fetal harm as an outcome of employment decisions, fetal

protection through the exclusion of women would be

considered a BFOQ because the risk of fetal harm is an

important factor other than sex, that affects normal

business operations. It could therefore be argued that

the desire to prevent fetal harm falls within the

parameters of non-discriminatory grounds for employers’

exercise of their "freedom of choice” in making decisions

under Price-Waterhouse. This approach could be

overinclusive, thereby denying employment to people

whose workplace exposures do not require the restricted

exposures in fetal protection policies.

Application of the Price Waterhouse plurality's

analysis of the BFOQ to the Pregnancy Discrimination

Act, 42 U.S.C. 2000-e(k) would similarly provide a strong

basis for showing that fetal protection policies are not

based upon "distinctions involving pregnancy [which] are

mere pretexts designed to effect an _ invidious

discrimination against members of one sex or the

other.’” 429 U.S., at 135 (quoting Geduldig v. Aiello, 417

9

U.S. 484, 496-497, n.20 (1974)). Thus, Title VII could

permit irrational policies as easily as justified

exclusionary polices under this construct, without

requiring adequate scrutiny of the underlying scientific

evidence.

C. Title VII Precedents Regarding Fetal

Protection Do Not Adequately Address the

Problems Raised by Reproductive Health

Hazards in the Workplace

The lower court approved the fetal protection

policy at Johnson Controls as an acceptable approach to

reducing the risk of birth defects, such as brain damage

and irreparable impairment of the central nervous

system, in children of female employees. Prior cases

have debated the application of Feta! Protection Policies

in the courts. Overall, courts have accepted the notion

that such policies provide “necessary” protection, despite

their economic harms to women and their implications

for future harm to workers’ functional capacity. When

the lower court looked for standards to determine the

reasonableness of the policy, it sought a rationale to

justify the perception of potential harm, and evidence of

the existing harm to excluded employees, following the

criteria in Wright v. Olin 697 F.2d 1172 (4th Cir., 1982).

In Wright, women who were employed at lower-

exposure worksites were not penalized from the

standpoint of pay and seniority rights, compared to the

benefits afforded to male workers in the high-exposure

worksites, but women were excluded from specific

“restricted” job categories. No employees were required

10

to be sterilized to obtain or maintain employment. The

Fourth Circuit therefore held that the employer's

exclusionary "Fetal Vult:erability Policy” was “rational”

and not discriminatory, in light of “medical evidence”

that women should be excluded from restricted areas

where there were embryotoxins and chemicals that can

cause reproductive harms, so long as the women were

given counseling and could work elsewhere.

According to one commentator, "traditional Title

VII theory has proved inadequate to the analysis of the

issue”, Duncan, Allyson K. "Fetal Protection and the

Exclusion of Women from the Toxic Workplace” Vol 18

North Carolina Central Law Journal No. 1, (1989). at 68.

Courts have consistently found that although such

policies may appear to be discriminatory, exclusionary

policies do not comport with our legal standards for

discrimination and that such policies therefore may

continue with minimal scrutiny of their scientific

underpinnings. The Wright court focussed its inquiry ca

potential harm to the employer and the unborn as

weighed against the existing economic harm to excluded

employees. The court upheld the employer’s exclusionary

policy, stating:

"jt is not necessary to prove the existence of a

general consensus... within the scientific

community. It suffices to show that within that

community there is so considerable a body of

opinion that significant risk exists... that an

informed employer could not responsibly fail to

act on the assumption that this opinion might be

the accurate one” Wright v. Olin 697 F.2d 1172

(4th Cir., 1982).

1]

This standard, as articulated in Wright, restated in

Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th

Cir. 1984) and applied by the lower court could be

applied to situations where the risk of reproductive or

other harms is, at best, speculative. More importantly,

this vague statement regarding the employer's

responsibility to employees does not subject to judicial

scrutiny the employer's underlying scientific evidence

and methods for reducing the risks. Any exclusionary

policy, regardless of its harsh provisions, or the large

class of workers that are affected by it, could be justified

under this view.

The view, were the lower court’s opinion to be

upheld, leaves two nagging questions at each of the

policy's logical extremes: (1) the minimum requirements

for demonstrating to the court that an exclusionary

policy, in lieu of alternative protections, is justified

remain unclear and (2) the circumstances that would

place limits on the court's criteria, to determine when an

exclusionary policy goes too far are also unknown. This

gives no blueprint for drawing a distinction between

impermissible harms that threaten workers’ health, but

must be corrected immediately through engineering

controls, in contrast to cases where the employer's policy

can be justified, although discriminatory in its effect.

More importantly, this standard does not place a clear

limit on employer policies that may unfairly harm

workers, even though such policies may constitute a

breach of the employer's responsibilities to protect

workers.

12

D. Occupational Health Issues, Unlike Policies

that Prevent Discrimination, Require a Careful

Weighing of Epidemiological Evidence on a

Substance by Substance and Worksite by

Worksite Basis and EEOC Lacks This Expertise.

Reproductive hazards encompass all agents which

have an adverse effect on the ability to sire or conceive

and bear healthy offspring, U.S. Congress, Office of

Technology Assessment, Reproductive Health Hazards in

the Workplace Washington D.C. 1985. A complete

analysis of possible reproductive impairinent must

include: disturbances in ovulation and spermatogenesis;

male sexual dysfunction; pregnancy loss at all gestational

stages; developmental defects of fetus or infant; genetic

defects; low birth weight; and other abnormalities in

infancy and childhood. Morton Corn, “Exposure

Assessment Challenges Presented by Investigations of

Reproductive Effects in the Semiconductor Industry”, Ch.

14 of forthcoming American Conference of Government

Industrial Hygienists (ACGIH) publication. As noted by

Dr. Corn, Former Assistant Secretary of Labor for

Occupational Safety and Health, there are three major

types of adverse effects that may be considered the

endpoints for evaluation of reproductive hazards after

occupational exposure: (1) Subfertility/ Infertility; (2)

Pregnancy loss; and (3) Disorders at birth or in infancy

Id. For example, effects on breastfeeding, early

childhood development and even learning disabilities

may be included as potential outcomes to be studied.

Risk assessment attempts to describe the causal

relationship between adverse effects and environmental

factors such as chemicals, radiation, stress, and

13

pathogens, Lowrence, W.W., Of Acceptable Risk: Science

and the Determination of Safety, William Kaufman, Inc.,

Los Altos, Ca. (1976). Reliance is placed upon

toxicological and epidemiological studies which relate

specific agents to adverse outcomes. U.S. Congress,

Office of Technology Assessment, Preventing Illness and

Injury in the Workplace, Washington D.C. 1985, Ch. 3.

The objective of risk assessment is not simply to

identify a connection between a hazardous agent and an

adverse effect. Exposure to the agent must be

quantified in the form of a measurable index such as air

contaminant concentration, absorbed dose, or blood

chemistry. The nature and severity of effects is

characterized at varying levels of exposure, U.S.

Congress, Office of Technology Assessment Preventing

Illness and Injury in the Workplace, Washington, DC ,

1985, Ch.3.

On October 3, 1988, the EEOC issued a Policy

Statement on Reproductive and Fetal Hazards Under

Title VII, which essentially endorsed the Wright-Hayes

view, despite the weakness of the guidance from these

cases, “Policy Statement on Reproductive and Fetal

Hazards Under Title VII" Fair Employment Practices

Manual (BNA) 401:6013. The EEOC criteria for a fetal

protection policy, as restated by the lower court can be

summarized as: (1) substantial risk of reproductive harm;

(2) risk via exposure of one sex but not the other sex;

and (3) ability of the policy to eliminate risk, [UAW v.

Johnson Controls, 886 F2d 871 at 886. These criteria do

not reflect the quantitative aspect of scientific risk

assessment, U.S. Congress, Office of Technology

Assessment Preventing Illness and Injury in the Workplace,

14

Washington, DC 1985, Ch.3. Furthermore, risk

assessment could not be easily reviewed by a court

without prior administrative review by an agency that

has expertise in the application of scientific evidence to

occupational health criteria. Using the results of such

analysis without considering the scientific context in

which they were developed could cause equal or greater

harm than the risk to be avoided.

The lower court noted, however, that EEOC has

indicated that a fetal protection policy would not

withstand scrutiny “if it is shown that there exists a

reasonable alternative policy that will protect employees’

offspring... that has a less discriminatory impact on

employees o* the restricted sex." JUAW v. Johnson

Controls, 886 F2d 871 at 886. Application of industrial

hygiene controls would constitute such an alternative,

but could not be easily evaluated by an administrative

agency that is not familiar with issues of occupational

safety and health.

Sound industrial hygiene practice recognizes a

hierarchy of controls to reduce or eliminate workplace

hazards, U.S. Congress, Office of Technology

Assessment Preventing Illness and Injury in the Workplace,

Washington, DC 1985, Ch.3. The preferred approach,

where feasible, is to redesign a work process to eliminate

or reduce hazards by substituting materials, curtailing

harmful emissions, or isolating the worker from the

hazardous process.

The next option is work practice controls, which

involve training employees to work more safely, or

administrative controls, which limit the duration of an

15

employee's exposure. Fetal protection policies that are

designed to minimize the risk of harm to employees’

reproductive capacity can be developed within the

parameters of sound industrial hygiene practice. Using

exposure monitoring, medical surveillance and enhanced

industrial hygiene controls, it is possible to create

alternatives for control. A final resort is the use of

personal protective equipment such as respirators. The

rationale for this hierarchy is a preference for the most

reliable method among feasible controls, U.S. Congress,

Office of Technology Assessment Preventing Illness and

Injury in the Workplace, Washington, DC , 1985, Ch. 9.

The ability to implement any good industrial

hygiene program depends upon the hygienist’s ability to

tailor required programs to the substances, exposures

and working population in a given workplace, /d.

Feasibility depends upon the configuration of the

workplace; the cost and availability of necessary

technology; the effectiveness of worker training; and the

willingness of the employer to commit resources toward

developing new control technology, /d. Recognizing that

the feasibility of controls is not a static parameter, men

and women of reproductive capacity who have

occupational exposure to reproductive hazards would be

enrolled in programs that meet their individual needs.

These particularly sensitive matters require that

an administrative agency weigh sophisticated scientific

evidence reflecting the different exposure experience of

each worksite within a given workplace, as well as the

reproductive history and needs of the affected

employees. Title VII is not, however, amenable to

undertaking this non-economic, health-based risk

16

assessment and detailed exposure analysis and EEOC

lacks the expertise to evaluate the appropriate

application #industrial hygiene controls in specific

circumstances.

II. Government Authority Exists to Protect Reproductive

Health Without Reaching Title VIi’s Civil Rights Issues

A. The Government’s Obligation To Protect

Health Has Primacy Under the Doctrine of

Parens Patriae.

Public health preventive strategies typically

categorize individuals in sub-groups according to risk in

order td prevent avoidable or foreseeable harms. The

governmental authority to abridge or modify individual

rights in order to fulfill its duty to ensure the public

health is a fundamental tenet of the common law, Grad,

Frank P., Public Health Law Manual, American Public

Health Association, Washington., D.C. (1990); 39

American Jurisprudence 2d Health Secs. 20;22 (1968 &

Supp. 1990). Under the doctrine of parens patriae, state

and federal governments have consistently exercised

these rights in order to protect the public health and

welfare, Jacobsen v. Massachusetts, 197 U.S. 11 (1905).

Preventive measures under these laws _ require

consideration of relevant scientific evidence and

evaluation of the risks to sub-populations, followed by a

targeted approach focussing on high-risk populations, in

order to justify such actions.

Examples of the governmental interest in meeting

the recognized need to abridge or modify legal views of

17

individual protections, in order to preserve the public

health include: abrogation of privacy rights in order to

collect and preserve personal data in vital records,

(births, deaths and specified diseases) Grad, Frank P..,

Public Health Law Manual, American Public Health

Association, Washington., D.C. (1990); restriction of the

person, in cases of quarantine [Id.]; and restriction in the

use of private property without constituting a “taking” in

cases of zoning to prevent pollution or public nuisances

Euclid v. Ambler Realty 272 U.S. 365 (1926). These

examples support the principle that policies that may

appear at first blush to be of questionable

constitutionality can override other statutory provisions,

because of the primacy of ~ iicies that favor public

health. Consequently, fetal protection policies, which

may appear to have a disproportionate impact upon

potential parents, women or pregnant women in

particular, may be allowed subject to regulation and

careful administrative scrutiny because of their ultimate

impact upon broader societal issues affecting children

and their parents’ reproductive health.

B. There is Precedent in the Federal Law

Providing Special Occupational Health

Regulations for Fetal Protection.

Federal law also provides precedent for

regulation of reproductive hazards according to sub-

population. For example, the Nuclear Regulatory

Commission (NRC) has separate standards fu: persons

under age 18, limiting the allowable radiation exposure

of such persons to ten percent of the exposure allowed

for older persons. 10 CFR 20. 104 (a). NRC has

proposed regulations, effective January 1991 for the

18

general public, 10 CFR 20.301, and for "fetal exposure”

in the event of so-called “declared pregnancy”, 10 CFR

20.208, “Dose for the embryo/fetus”. See: Smith, Neal

and Baram Michael, The Nuclear Regulatory

Commission's Regulation of Radiation “Mazards in the

Workplace: Present Problems and New Approaches to

Reproductive Health, 13 Ecology L. Q. 879 (1987). These

standards for special sub-populations differ from the

standards applied to other employees, 10 CFR 20.101-03.

10 CFR 20.208 shows the effect of applying specialized

agency expertise when establishing an exposure standard.

For example, 10 CFR 20.208 (c) siates that "[t]he dose

to an embryo/ fetus shall be taken as the sum of... (1)

the deep dose equivalent to the declarec pregnant

woman and (2) the committed effective dose equivalent

assessed to the pregnant woman due to the intake of

radionuclides, modified to take into account any

established parameters that cause the dose to the

embryo/ fetus to be different from that of the declared

pregnant woman”, U.S. Congress, OTA Reproductive

Health Hazards in the Workplace, p.405. This standard

clearly cannot be analyzed or applied with a broad brush

approach that affects more than a few workers at a time.

The NRC's multi-tiered approach to radiation

hazards, by classification of workers into sub-

populations as described above, has not been

challenged as discriminatory to date. The NRC’s

approach does establish however, that a series of

occupational health standards can be promulgated under

federal laws that are tailored to the needs of

subpopulations. This Court therefore need not reach

Title VII's constitutional issues in order to uphold the

decision of the Court of Appeals in this case.

19

III. The US Congress Has Clearly Expressed Its

Intention to Address these Issues

A. There Exists Jurisdiction Under OSH Act For

the Secretary of Labor to Resolve These Issues

The U. S. Congress has spoken to these important

occupational safety and health issues in the Occupational

Safety and Health Act (OSH Act) of 1970. OSH Act

grants the Secretary of Labor authority to protect

workers “functional capacity”, Sec. 2(b), 29 U.S.C. 651

(b) against "recognized hazards”, Sec. 5(a)(1), 29 U.S.C.

654. By case law and OSHA's own rulemaking in the

OSHA lead standard, 29 CFR 1910.1025, the protections

within OSHA's statutory mandate include reproductive

health hazards in the workplace.

OSH Act Section 5(a) (1), the so-called "general

duty” clause, requires that "Each employer (1) shall

furnish to each of his (sic) employees employment and

a place of employment which are free from recognized

hazards that are causing or likely to cause death or

serious physical harm to his (sic) employees”, 29 U.S.C.

654 (a)(1). To meet the employer's obligation or

“general duty” to provide safe and healthful employment,

employers must maintain an effective industrial hygiene

program that is active in two complex realms,

simultaneously monitoring conditions in the workplace

and research within the scientific community. It is

incumbent upon the employer to become aware of the

most recent developments; for employers to use the

latest and most effective means for protecting against

special harms, and to use this information to ameliorate

working conditions. -

20

OSH Act also grants the Occupational Safety and

Health Administration, (OSHA) the authority to

investigate hazards; assist in developing strategies to

improve working conditions; and assisting small

businesses with compliance.

This Court has held that the U.S. Congress did

not intend OSH Act compliance to depend upon the

results of cost-benefit analysis, American Textile

Manufacturers Institute v. Donovan, 452 U.S. 490 (1981).

Unlike Title VII's “business necessity” defense, OSH Act

has no monetary limitations on the costs of engineering

controls, biological of monitoring or other industrial

hygiene practices that can be required to enforce

occupational safety and health laws, (although variances

can be granted by the agency on a case by case basis).

This underscores the sharp scientific differences between

OSH Act and Title VII, and the need to reaffirm

OSHA's primacy in crafting regulations that govern the

employers’ policies, in order to uphold occupational

safety and health.

In the preamble to its final standard for

occupational exposure to lead, OSHA recommended that

prospective parents maintain blood lead levels below 30

micrograms per 100 grams, “Occupational Safety and

Health Administration Notice on Issuance of Final

Standard for Workplace Exposure to Lead,” Federal

Register 43 rR 52952 November 14, 1978. et. seq. This

level represents the upper range of nor:nal blood lead

levels for adults who do not have occupational exposure

to lead, according to the American Conference of

Government Industrial Hygienists, Documentation of the

Threshold limit Values and Biological Exposure Indices Sth

21

Ed., Cinn. Ohio 1986. OSHA asserted, without

substantiating its statement, that the 30 microgram per

100 gram limit would “minimize” reproductive harm,

43FRS2952 et seq. Yet, this level is the upper limit of

the acceptable range, recommended by the Centers for

Disease Control, National Academy of Sciences and the

Environmental Protection Agency: ".. the blood lead

level in children should be maintained below 30

micrograms per 100 grams with a population mean of 50

micrograms per 100 grams. Levels above 30 micrograms

per 100 grams should be considered elevated” and

therefore subject to medical controls, [Id.].

Using this approach, OSHA did not develop

express protections for prospective parents employed in

the lead industries. The medical removal requirements

of the lead standard are triggered by blood lead levels of

50 micrograms per 100 grams or by medical

determination "that the employee has a detected medical

condition which places the employee at increased risk of

material impairment to health from exposure to lead” 20

CFR 1910. 1025(k)(1)(ii)(A). OSHA's lead standard

therefore permits but does not require medical removal

or special protective measures for prospective parents

under a broad interpretation of this rule. In addition, the

need to prevent an imminent danger of fetal harm cou!d

be viewed as an "increased risk of material impairment

to health” that would trigger protections articulated in

this rule. Thus, OSHA did not clearly address the issues

of fetal protection that it discussed and regulated in the

final lead standard, but could concievably enforce special

protections against prenatal exposure in cases of high-

risk, without causing undue exclusion of large classes of

employees.

22

To do so would be consistent with OSHA case

law, directing the employer to prevent the effects of

"recognized hazards” of lead under Section 5(a)(1) of

OSH Act, 29 U.S.C. 654, and under ASARCO v.

OSHRC 746 F.2d 483, (9th Cir. 1984). In an otherwise

exacting standard, such indirection regarding fetal

protection inhibited fulfillment of OSHA's mandate to

protect working men and women from impairment of

functional capacity because of lead exposure. This

weakness in OSHA's regulatory approach should not be

used to undermine its jurisdiction.

The Respondent has not violated the relevant

OSHA lead regulations, or been cited by OSHA for

unacceptable practices regarding reproductive health

hazards. And, contrary to Petitioner's view of health

concerns, weaknesses in OSHA regulations and the

agency's reluctance to grapple with these issues should

not give rise to the mistaken inference that OSHA is not

the proper avenue for jurisdiction of these important

issues.

It would cause needless duplication of

governmental regulatory efforts and undermine

administrative concepts of deference to the agency's

legislative mandate for EEOC to acquire the necessary

expertise to enforce the case by case protections against

high-risk exposures. The proper avenue for redress

against exclusionary policies therefore lies under OSH

Act's enforcement mechanism. Unlike purely economic

job-related discrimination which looks to societal factors

beyond the worksite, exclusion of women of childbearing

capacity is directly related to the employer's decisions

regarding the hazards that will exist within the

23

workplace. Since reproductive hazards in the workplace

are under the employer's control, under OSH Act, the

cost of compliance is not a defense. Under OSH Act,

employers can be required to clean up the workplaces.

By contrast, there is no Title VII precedent that

specifically requires employers to provide safe and

healthful workplaces. These important differences

between Title VII and OSH Act's administrative

authority can dramatically change the outcome of

litigation concerning exclusionary policies. The time and

resources that have been used to bring cases under Title

VII against exclusionary policies could therefore be

better used to petition OSHA for effective enforcement

of the existing regulations and its statutory mandate to

resolve this important problem.

B. The US Congress Has Expressed Its Intention

to Create Special Legislation to Address

Reproductive Health Hazards and Judicial

Restraint Requires that Courts Defer to the

Legislature to Fill Any Regulatory Void In

Existing Laws

Given that the potential for fetal harm also raises

issues that traverse the traditional realm of industrial

hygiene, which is usually limited to monitoring exposures

within the workplace and outcomes that directly affect

workers themselves, it is possible that reproductive

health hazards in the workplace may in fact present new

issues of law that require special legislation, beyond the

scope of ordinary occupational health jurisdiction.

Questions raised by fetal protection may therefore be

best resolved through the development of new legislation

24

that specifically targets reproductive health hazards.

Rep. Pat Williams has introduced draft legislation

on this subject, and has stated his intention to hold

hearings as indicated in the Congressional Record,

pending the outcome of this case. According to Rep.

Williams’ comments, printed in the Congressional record

{Congressional Record, March 29, 1990, "Sterilization or

Your Job", comments by Hon. Pat Williams, (D-

Montana) introducing HR4420, the “Employee

Protection Act of 1990” has the stated purpose to

address the issues raised by Johnson Controls. Rep.

Williams stated,

"This legislation is partially in response to

Johnson Controls... I intend to urge my chairman

to hold hearings on this bill this year, but not to

consider this legislation until after the Supreme

Court issues its opinion in 1991”.

The difficult scientific and epidemiological

questions raised by fetal protection may best resolved

through the development of new legislation that

specifically targets reproductive health hazards. It is

therefore possible that the special issues raised by

reproductive health hazards emanating from the

workplace but affecting the health outcomes discussed by

Dr. Corn, can only be resolved by a special statutory

mechanism that will evaluate reproductive hazards on a

much narrower basis than the present dichotomy

between exclusion or allowing all workers to enter the

high-risk workplace Corn, Morton. "Exposure

Agsessment Challenges Presented by Investigations of

Reproductive Effects in the Semiconductor Industry”, Ch.

25

14 in forthcoming ACGIH publication.

Rep. Williams’ comments implicitly raise the

question whether the courts in general, and Title VII

actions in particular, provide the proper avenue for

making determinations regarding fetal protection

policies, in light of their important health and safety

questions and their ultimate impact upon the maternal

and child health and welfare of future generations. It is

possible that the decisions to be made in the realm of

fetal protection are inherently political, and therefore

should be resolved by the legislature through new laws

that specifically target reproductive hazards and directly

address issues that were not discussed in the legislative

history of OSH Act or Title VII. Such legislation could

further enable one agency to acquire the necessary

expertise and develop the criteria for risk assessment

and review of employers’ claims regarding the ostensible

justification for exclusion, by sorting out the differences

between scientific evidence that genuinely involve high-

risk exposures to lead, teratogens or other fetotoxins,

and the adverse impact of stereotypes upon employment

opportunities. In addition to facing a higher level of

OSHA scrutiny until the workplace as been made safer,

it may also be possibile to set statutory limits upon the

employer's expense for compliance, or could provide

avenues for review of complaints and class actions

pertaining to the validity of fetal protection policies in

light of the dangerous exposures and risk assessment in

specific circumstances.

This rare pronouncement by the legislature prior

to the completion of a judicial opinion provides a

powerful argument favoring judicial restraint and

26

allowing for the issues raised in a case to be considered

by a legislature; such a clear legislative directive is

unprecedented. These considerations require judicial

restraint, in deference to the expressed will of the

legislature that these issues be resolved under OSH Act

or by new legislation.

IV. Conclusions

The judgement of the court of appeals should therefore

be upheld.

Respectfully submitted,

Counsel of Record

Zhu £ SFY a

llise Levy Fefichans

DL nk

John M. Kasdan

Attorneys for Amicus

27