Federation, AFL-CIO v. California Occupational Safety and
Health Standards Board, 271 Cal.Rptr. 310 (Cal. 1990).
Labor and environmental organizations, as well as individuals,
petitioned for a writ ordering the state Occupational Safety and
Health Standards Board to adopt the standards set out in the
occupational safety and health warning and enforcement provisions
of the Safe Drinking Water and Toxic Enforcement Act. The
provisions require persons in the course of doing business to
warn individuals exposed to chemicals known to cause cancer or
reproductive toxicity. The Court of Appeal held that the Safe
Drinking Water and Toxic Enforcement Act constituted state law
governing occupational safety and health, requiring that the
state plan for occupational safety and health adopt the
The Safe Drinking Water and Toxic Enforcement Act was approved
by California voters in 1986 as Proposition 65. The Act requires
warnings when workers, consumers or the general public are
exposed to substances causing cancer or birth defects.
Hurd v. Monsanto Co. and Westinghouse
Electric Corp., 908 F.Supp. 604 (S.D. Indiana 1995).
Employees brought a class action lawsuit against their
employer and sole manufacturer of polychlorinated biphenyl
dielectric fluid (PCBs) for injuries from their exposure to PCBs
in the manufacturing electrical capacitors. The District Court
held: (1) the employees were not disabled from earning full wages
at the work they were engaged in when last exposed to hazards, to
be within the exclusive remedy provision of Indiana's
Occupational Disease Act; (2) the employees failed to allege that
their employer used PCBs in its manufacturing process with intent
of injuring their employees for intentional injury exception to
workers' compensation exclusivity provision to apply; (3) the
employees' claims for economic harms that originated from health
risks associated with their exposure to PCBs were subject to
workers' compensation exclusivity; (4) even if the employees'
claims were not barred by workers' compensation exclusivity, they
were preempted by statute for failing to exhaust contractual
remedies; but (5) the employees alleged fraud against the
manufacturer with sufficient particularity.
A plaintiff alleging fraud must state the identity of a person
making the alleged misrepresentation, the time, place, and
content of the misrepresentation, and the method by which the
misrepresentation was communicated to the plaintiff.
Additionally, deliberate exposure a to chemical agent that is
merely likely to cause harm or increase risks of subsequent
illnesses falls short of knowing that an injury was certain to
occur, as required for intentional tort exception to exclusive
remedy provision of Indiana Workers' Compensation Act.
This case illustrates the difficulties that workers face
receiving tort recoveries from their employers as a result of
their exposure to workplace toxins. First, the employees may be
limited to only the recoveries allowed under their state's
workers' compensation statute. Second, without being able to show
causation to a suitable degree of scientific certainty (between
the toxins and their injuries), recovery may also be denied.
International Union, United
Automobile Workers, 499 U.S. 187 (1991).
A class action was brought challenging an employer's policy
barring all women, except those whose infertility was medically
documented, from jobs involving actual or potential lead exposure
exceeding the Occupational Safety and Health Administration (OSHA)
standard. The Supreme Court held that: (1) the employer's policy
was facially discriminatory, and (2) the employer did not
establish that sex was a bona fide occupational qualification (BFOQ).
The employer's policy was facially discriminatory because it
required only female employees to produce proof that they were
not capable of reproducing, despite evidence of the debilitating
effect of lead exposure on the male reproductive system. The
beneficence of the employer's purpose did not undermine the
court's conclusion that such an explicit gender-based policy was
sex discrimination which failed to be defended as a bona fide
occupational qualification (BFOQ) reasonably necessary to the
normal operation of that particular business or enterprise. See
42 U.S.C.A. § 2000e-2(a)(1)(2),(k)(1)(A)(i)(1998).
Smith v. Olin Chemical Corporation, 555
F.2d 1283 (5th Cir. 1977).
An action was brought alleging racial discrimination in
employment. The Court of Appeals held that, assuming that the
preconditioning of employment for manual labor on the absence of
bad backs or degenerative spinal conditions operates to
discriminate against Black Americans in substantially
disproportionate percentages, an employer should not be forced to
satisfy an evidentiary burden of proving business necessity; not
every physical requirement is so manifestly job related as to
make evidentiary proof unnecessary, but a good back is so
directly related to job performance in manual labor that the
employment requirement is patently neither artificial nor
arbitrary and is obviously related to business necessity.
The court opined that a facially neutral job criterion can be
so manifestly job related as not to be the kind of artificial,
arbitrary and unnecessary barrier prohibited by the Civil Rights
Act of 1964, and in such a case, the employer need not make an
evidentiary showing of business necessity, even though the
criterion may have a discriminatory impact.
An interesting aspect of this case involves Olin Chemical
Corporation's hire of Smith as a probationary employee. Smith
performed his work satisfactorily, and after 90 days was given a
physical exam required of the firm's permanent employees. The
exam X-rays of the plaintiff's spine led the company doctor to
the conclusion that Smith had "bone degeneration with a
prognosis of possible further bone degeneration in his spinal
region" and as a result was "disqualified for manual
labor at the plant." When the doctor told Smith of that
conclusion, Smith responded by saying the diagnosis could be
explained by his history of sickle cell anemia, a blood disease
found almost exclusively in descendants of tribes living in
malarial regions of Africa. Smith was discharged.
This case clarifies that employers can reasonably refuse to
hire or discharge workers with preconditions that can be directly
related by employers as identifiable impairments to workers'
continuing effective job performance. Good backs as an actual
business necessity for certain types of employment, can easily be
distinguished from fertile women and men who voluntarily expose
themselves to workplace toxins that could affect their future
Snyder v. Michael's Stores, Inc., 68
Cal.Rptr.2d 476 (1997).
A child and her parents brought an action against the mother's
employer to recover damages for the child's in utero injuries
allegedly caused when mother breathed toxic fumes in her
workplace. The California Supreme Court held that the workers'
compensation exclusivity rule did not bar a child's cause of
action for her own injuries or her parents' claim for
consequential losses due to child's injuries.
A California statute (Cal.Civ.Code § 43.1) providing that a
child conceived, but not yet born, is deemed existing person, so
far as necessary for child's interests in event of child's
subsequent birth, gives child the right to maintain action in
tort for in utero injuries wrongfully or negligently caused by
another, a right that did not exist at common law.
Morris E. Davis, The Impact of
Workplace Health And Safety on Black Workers: Assessment and
Prognosis, 31 Labor Law Journal 723, 723-732 (1980).
Davis' article is a must for anyone desiring to develop a
historical perspective regarding the impact of workplace hazards
on African Americans. Of course, it is time-bound, but the author
looked back on the impact of the Occupational Safety and Health
Act of 1970, a decade later, on the African American workforce.
His conclusion that blacks were disproportionately exposed to
workplace hazards when compared with members of other groups was
substantiated by compelling statistics.
Davis indicated that African Americans comprised 15% of all
trade union membership, with over three million Black trade
unionists. He reviewed that 15% of the Black workforce was unable
to work due to permanent or partial-job related disabilities;
Black workers were one and one-half times more likely than whites
to be severely disabled from job-related injuries and illnesses;
and Blacks faced a 20% greater chance than whites of dying from
job-related injuries and illnesses. Much of the article addressed
the exposure of Blacks to workplace toxins (described as
carcinogenic substances, dangerous gases and particles, and so
on). A 1976 study of over 6,500 rubber workers in a large tire
manufacturing facility revealed that Black workers were
concentrated in the more dangerous compounding and mixing areas.
27% of the Black workers worked in this area of the plant, as
compared to only 3% of the white workers. Davis' combination of
statistics with such compelling examples chronicled an era of
selective exposure to workplace hazards.
Jean Macchiaroli Eggen, Toxic
Reproductive And Genetic Hazards in The Workplace: Challenging
The Myths of The Tort And Workers' Compensation Systems, 60 Fordham
Law Review 843, 843-864 (1992).
This article examines how, although, various scientific
studies suggest a causal connection between workers' reproductive
and genetic injuries and their exposure to toxins in the
workplace, because of legal causation standards of proof, workers
and affected family members often cannot prove a causal
connection between a toxic exposure and a corresponding injury
sufficient to recover under existing workers' compensation and
The article reviews that reproductive injuries, such as
infertility and spontaneous abortion, can often be virtually
indistinguishable from background levels of these conditions in
the general population. Additionally, although the worker
experiences the most direct exposure to a toxic substance, third
parties, such as the worker's offspring, often suffer the full
force of the injury. Finally, chemically induced genetic
mutations may not occur in the hereditary line for one or more
The article points out that studies estimate that up to
fourteen million American workers may be exposed each year to
potential reproductive hazards in the workplace. The Centers for
Disease Control have included reproductive disorders among the
ten most common work-related complaints in the United States.
Existing studies show that both men and women workers suffer
genetic and reproductive injuries from exposure to workplace
toxins. These toxic exposure injuries include infertility,
various pregnancy-related injuries such as spontaneous abortion
and stillbirth, cancer in children of exposed workers, and
various genetically-related disorders.
Although workers' compensation was created to help workers
recover for injuries suffered on the job, the requirements of
these statutes hinder recovery for toxic reproductive and genetic
injuries sustained in the workplace. An injured worker may have
difficulty demonstrating the required work-relatedness of the
illness and many employees who develop reproductive or genetic
injuries are not physically disabled from work. The exclusivity
rules of workers' compensation statutes may bar workers from
bringing common-law tort actions against their employers even if
the injuries involved are not compensable under the relevant
statute. The article concludes that inequalities that exist for
victims of reproductive and genetic workplace injuries undermine
the compensation and deterrence goals of workers' compensation.
This article addresses critical issues facing persons exposed
to workplace toxins. At present, their may be no legal remedy for
many of their related illnesses and injuries. Although, this
article is now several years old, its assertions still accurately
depict key issues confronting persons exposed to workplace
Christine N. O'Brien, Margo E.K. Reder,
Gerald A. Madek & Gerald R. Ferrera, Employer Fetal
Protection Policies At Work: Balancing Reproductive Hazards With
Title VII Rights, 74 Marquette Law Review 147, 186-190 (1991).
This article was written on the heels of a landmark Supreme
Court case, International Union, United Auto Workers v.
Johnson Controls. The case involved a challenge of an
employer's policy barring all women, except those whose
infertility was medically documented, from jobs involving actual
or potential lead exposure exceeding the Occupational Safety and
Health Administration (OSHA) standard. The Supreme Court held
that: (1) the employer's policy was facially discriminatory, and
(2) the employer did not establish that sex was a bona fide
occupational qualification (BFOQ).
The article does a good job of methodically walking the reader
through compelling divisive workplace issues involving legal,
economic, medical as well as moral concerns about employer fetal
protection policies ("FPPs"). Advances in occupational
medicine, toxicology and scientific studies are beginning to
uncover effects from numerous workplace toxins with possible long
term adverse health and reproductive consequences. As such, this
article provides a primer for someone looking for a comprehensive
overview of this area.
The article points out that employers, concerned with both
fetal health and the specter of massive tort liability for
injured third parties, were caught in a legal crossfire: do
nothing about these issues and be sued by injured parties, or
utilize an FPP and be sued by workers denied their equal
employment rights. The article reviewed employers' typical
contention that there was no acceptable level of risk for
possible harm to fetuses involuntarily exposed to workplace
toxins through their mothers--"perfect risk
protection," in other words, was their solution. The
excluded employees, more often than not, were single women heads
of households with relatively low socioeconomic status and
educational credentials. They argued that FPPs amounted to sex
discrimination requiring them and not their male counterparts to
choose between their livelihood and parenthood in violation of
Title VII of the Civil Rights Act of 1964.
The article is lengthy, detailed and methodically written. Its
resources are comprehensive and well integrated into the text,
making this selection a must for someone seeking introduction
into this legal area.
Vernellia R. Randall, Slavery,
Segregation And Racism: Trusting The Health Care System Ain't
Always Easy! An African American Perspective On Bioethics, 15 Saint
Louis University Public Law Review,191, 222-223 (1996).
This article examines the historical roots and contemporary
presence of bioethical issues involving African American
healthcare. Reproductive healthcare issues related to workplace
toxins are concisely summarized. The author's conclusion that,
although, women are currently protected from forced sterilization
in order to maintain higher paying jobs, "African American
women could be rendered infertile simply by doing their
jobs," underscores the disproportionate affect of workplace
toxins on members of the African American community. The over
representation of African Americans in jobs with high levels of
exposure to workplace toxins is stressed.
This article examines the "big picture" regarding
African American bioethical healthcare issues. The comprehensive
examination of the area gives the reader a broad-based
perspective of how the pieces come together and impact the
contemporary African American community.
Charlotte Rutherford, Reproductive
Freedoms And African American Women, 4 Yale Journal of Law and
Feminism 255, 275-279 (1992).
This article reviews how African Americans are overrepresented
among the workers in laundry and dry cleaning, tobacco
manufacture, fabric mills, smelters, hospitals, and farmwork. The
author points out that these industries expose workers to
pesticides, heat, mechanical hazards, noise, toxic chemicals and
dust, and these exposures are often combined with poverty and
poor medical care.
The author asserts that the Supreme Court's ruling in United
Automobile Workers v. Johnson Controls, Inc., commonly called
the "fetal protection" case, prohibits an employer from
excluding all women of child-bearing capacity from certain jobs
even if the employer's goal is to prevent possible damage to
potential or developing fetuses. The assertion further outlines
that, although, the result protects women from having to choose
between their jobs and their ability to have children, it does
not address the work conditions that place women and their
fetuses at risk. Additionally, such policies do not recognize
that hazardous work conditions can adversely affect men's
reproductive capacity. In other words, the ruling did not address
the broader issue of unsafe conditions for all workers.
The article examines a broad range of reproductive issues
(prenatal care, contraceptives and sex education, surrogacy,
sterilization, workplace toxins, and abortion) facing African
American women. It serves as a helpful overview and provides
useful resources for each of the areas considered.
NATIONAL ACADEMIC NEWSLETTER
Reproductive health. A father's
role. Harvard Health Letter, October 1992, at 5.
This article points out that research has revealed that 8-10%
of sperm from apparently healthy men with no history of heritable
disease are abnormal. Further, scientists do not know how these
abnormalities might translate into problems for any children
conceived by such sperm. The article speculates that paternal
exposure to drugs, alcohol, radiation, and workplace toxins may
be implicated in miscarriages, stillbirths, congenital defects,
low birth weight, behavioral or learning difficulties, and even
some types of cancer. The article points out that despite the
difficulty proving a causal relationship between paternal
exposures to workplace toxins and reproductive risks, prospective
parents should seriously consider the possibility as
Jessica Guynn, California Industries
Struggle with "Fetal Protection" Rules, Knight-Ridder
Trib. Bus. News, December 7, 1997 (No Page), available in
Westlaw, 1997 WL 18955444.
This article reported corporate and public reactions to the
California Supreme Court's Oct. 30, 1997 decision in Snyder et
al. v. Michael's Stores. The court's ruling cleared the way
for a lawsuit by a brain-damaged 3-year-old allegedly exposed
before birth to carbon monoxide at her mother's workplace. The
ruling reversed a long-standing appeals court decision that
barred such suits, on the theory that the child was suing for
injuries suffered by the mother, whose claims were limited to
workers' compensation benefits. The article reviewed that federal
law prohibits employers from adopting "fetal
protection" policies that exclude women from hazardous jobs.
Instead, employers must try to make working conditions as safe as
possible, advise women of the potential risks and let them decide
for themselves or risk claims of pregnancy discrimination.
The article summarized reactions such as Patricia Shiu's, a
senior staff attorney with the Employment Law Center, "Men
and women should not have to choose between their health or the
health of their unborn children and their right to work in a
healthful and safe workplace." "The decision merely
affords the same legal protection to workers that already exists
for a businesses' customers who are pregnant." The decision
drew fire from employer groups, but was hailed by employee rights
advocates as a victory for women in the workplace.
Blacks and Cancer, U.S. News
& World Report, October 22, 1990, at 21, available in
Westlaw, 1990 WL 3578374.
This article recognizes that Blacks represent a larger
proportion of America's blue-collar work force. The article also
recognizes that blue-collar workers tend to smoke more, and, more
importantly, Blacks in certain industries had higher exposure to
hazardous substances in the workplace and, therefore, developed
higher rates of certain cancers, such as lung, bladder and
The article further recognizes that because there is a high
proportion of African Americans that are at or below the poverty
level, and because there is a higher proportion of African
Americans with no or inadequate health-insurance coverage,
availability of quality cancer-prevention and control services
for the Black community is low. The conclusion presented suggests
that life at the poverty level is oriented to the provision of
food, clothing and shelter rather than prevention of an illness
that may take 10 to 20 years to develop.
Andrew Purvis, The Sins of The Fathers:
Both Parents May be Vulnerable to Toxins That Cause Birth
Defects, Time, November 26, 1990, at 90, available in
Westlaw, 1990 WL 2757673.
This article attacked the inaccurate assumption that exposure
to dangerous substances in the workplace is most likely to occur
inside the wombs of mothers-to-be. It pointed out that a series
of studies have raised the possibility that the fault can
sometimes lie with the father. Exposure to workplace toxins may
silently damage a man's sperm and thus lead to birth
The article appropriately highlighted that the reports do not
prove a causal link, however, the increasing number of such
studies reflects the need for concern about an issue that some
experts feel is long overdue. Dr. Ellen Silbergeld, a
toxicologist at the University of Maryland, for example,
reviewed, "There has been a sense [among scientists studying
birth defects] that reproduction is something that women do, and
that men don't contribute very much. That is simply not
true." Researchers have long known that certain poisons can
produce so-called "dominant lethal effects" in men. In
these cases, the sperm is so damaged that it fails either to
fertilize the egg or to produce a viable embryo. Little was
known, however, whether toxins could trigger more insidious
defects in the sperm--problems subtle enough to allow the birth
of the child but still be harmful enough to produce serious
Jill Smolowe, Weighing Some Heavy
Metal: The Supreme Court Rules That Potential Health Risks to a
Fetus Are no Excuse to Discriminate Against Women in The
Workplace, Time, April 1, 1991, at 60, available in
Westlaw, 1991 WL 3118605.
This article detailed the significance of and public reaction
to the Supreme Court's decision in the case of Automobile
Workers v.Johnson Controls, Inc. The Court
addressed for the first time the controversial issue of
industrial fetal-protection policies. The Court held that the
rights of a fertile woman to work in the job she wants and is
qualified for, takes precedence over the rights of employers to
impose work rules to protect her unborn children. The decision
could affect millions of workingwomen as companies can no longer
exclude fertile females from certain high-risk jobs because of
the potential harm to unborn babies.
Justice Harry Blackmun wrote, in a majority opinion for five
Justices, "Women as capable of doing their jobs as their
male counterparts may not be forced to choose between having a
child and having a job. Decisions about the welfare of future
children must be left to the parents who conceive, bear, support
and raise them rather than to the employers who hire those
This article provides a good overview of public reaction to
the Court's ruling. Women's rights activists, labor unions and
civil liberties groups hailed the ruling as a major victory.
"The court made it clear today that sex discrimination is
not a legal solution to workplace hazards," said Judith
Lichtman, president of the Women's Legal Defense Fund. "The
Justices struck down a sex-based policy that threatened to deny
15 million to 20 million industrial jobs to women."
Corporate officials expressed fear that companies may now be
exposed to large damage suits once they revise policies that the
Court found to be in violation of Title VII of the Civil Rights
Act of 1964, which prohibits sex discrimination.
David Bernstein, Occupational
Asthma, 278 Journal of the American Medical Association
1907, 1907-1913 (1997).
In a 1997 issue of the Journal of the American Medical
Association, Dr. David Bernstein pointed out that
occupational asthma (OA) constitutes about 2-15% of all asthma
cases worldwide. OA, Dr. Bernstein asserts, can manifest itself
after a 1-3 year latent period of asymptomatic exposure (to such
allergens as flour/food proteins, lab animals, latex,
contaminating insects, enzymes, and particularly the
diisocyanates [used for plastic polymerization, coating and
adhesives]). He stressed that avoidance as early as possible
after onset of symptoms is very important because those with OA
who continue to be exposed to allergens may eventually develop
severe asthma that persists for years after eventually leaving
work. The significance of this article involves researcher
recognition of a causal relationship between asthma and exposure
to workplace substances.
Arlene F. Kantor et al., Occupations of
Fathers of Patients With Wilm's Tumour, 33 Journal of
Epidemiology and Community Health, 253, 253-256 (1979)
A study of paternal occupation among 149 children-patients
with Wilm's tumor (a childhood cancer of the kidney), showed that
a significantly greater number of their fathers were exposed to
lead on the job, compared to fathers of a control group of
children without the disease. This study did not, however, prove
a causal link, it merely significantly suggested that such a link
Marja-Lusa Lindbohm et al., Effects
of Paternal Occupational Exposure in Spontaneous Abortions, American
Journal of Public Health, 1029-1033 (August 1991).
A nationwide study of 99,186 pregnancies in Finland showed
increased likelihood of spontaneous abortion if the father was
occupationally exposed to rubber chemicals, solvents used in the
manufacture of rubber products, solvents used in oil
refineries,or ethylene oxide. This study did not, however, prove
a causal link, it merely significantly suggested that such a link
Andrew F. Olshan et al., Birth Defects
Among Offspring of Firemen, 131 AMERICAN JOURNAL OF
EPIDEMIOLOGY, 312-321 (1990).
A study of 22,192 children born with birth defects in British
Columbia related paternal occupation as a fire fighter to the
occurrence of the children's heart defects. Fire fighters are
often heavily exposed to carbon monoxide and to polycyclic
aromatic hydrocarbons (PAHs)--chemicals in smoke and soot. This
study did not, however, prove a causal link, it merely
significantly suggested that such a link exists.
David A. Savitz & Jianjua Chen,
Parental Occupation and Childhood Cancer: Review of
Epidemiological Studies, 88 Environmental Health Perspectives,
A recent review of several studies of paternal occupational
exposures in relation to childhood cancer in the offspring showed
consistently that work in hydrocarbon-related occupations (the
petroleum and chemical industries), especially exposure to paint,
is associated with brain cancer. Male exposure to paint is also
linked to leukemia in offspring. This study did not, however,
prove a causal link, it merely significantly suggested that such
a link exists.
Helena Taskinen et al., Spontaneous
Abortions And Congenital Malformations Among The Wives of Men
Occupationally Exposed to Organic Solvents, Scandinavian Journal
of Work, 15 Environment And Health, 345-352 (1989).
A study of 6000 men in Finland indicated that paternal
exposure to organic solvents nearly tripled the likelihood of
spontaneous abortion as a pregnancy outcome, compared to controls
not exposed to organic solvents. Painters and wood workers (e.g.,
carpenters in the construction, furniture and the boat
industries) were found to be at risk. The solvent toluene stood
out as a particularly bad agent in his study. This study did not,
however, prove a causal link, it merely significantly suggested
that such a link exists.
CALIFORNIA CODES, CIVIL CODE, DIVISION 1-PERSONS, PART 2-
PERSONAL RIGHTS (1998).
§43.1. Unborn child deemed existing
A child conceived, but not yet born, is deemed an existing
person, so far as necessary for the child's interests in the
event of the child's subsequent birth.
CALIFORNIA HEALTH AND SAFETY CODE, DIVISION 20, MISCELLANEOUS
HEALTH AND SAFETY PROVISIONS, CHAPTER 6.6. SAFE DRINKING WATER
AND TOXIC ENFORCEMENT ACT OF 1986.
§25249.6. Required warning before
exposure to chemicals known to cause cancer or reproductive
No person in the course of doing business shall knowingly and
intentionally expose any individual to a chemical known to the
state to cause cancer or reproductive toxicity without first
giving clear and reasonable warning to such individual, except as
provided in Section 25249.10.
UNITED STATES CODE ANNOTATED
TITLE 42. THE PUBLIC HEALTH AND WELFARE
CHAPTER 21--CIVIL RIGHTS
42 U.S.C.A. § 1981 (1998)
§1981(a)(c). Equal rights under
(a) Statement of equal rights
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make
and enforce contracts, to sue, be parties, give evidence, and to
the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens,
and shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
(c) Protection against impairment
The rights protected by this section are protected against
impairment by nongovernmental discrimination and impairment under
color of State law.
42 U.S.C.A. § 2000e-2 (1998)
Unlawful employment practices.
(a) Employer practices
It shall be an unlawful employment practice for an
(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
otherwise adversely affect his status as an employee, because of
such individual's race, color, religion, sex, or national origin.
(k) Burden of proof in disparate impact
(1)(A) An unlawful employment practice based on disparate
impact is established under this subchapter only if--
(i) a complaining party demonstrates that a respondent uses
a particular employment practice that causes a disparate impact
on the basis of race, color, religion, sex, or national origin
and the respondent fails to demonstrate that the challenged
practice is job related for the position in question and
consistent with business necessity.
When an employer is able to demonstrate that the challenged
practice is job related for the position in question and
consistent with business necessity, this is known as a bona fide
occupational qualification (BFOQ).
Hazardous Inheritance: Workplace
Dangers to Reproductive Health (Cambridge Documentary Films, Inc.
This 24 minute video is about the widespread hazards in the
workplace that can cause infertility, miscarriage, stillbirth,
birth defects and even childhood cancer. Participating in
"Hazardous Inheritance" are:
Dr. Maureen Paul, an obstetrician/gynecologist and
occupational health specialist. She is a professor at the
University of Massachusetts Medical School and the director of
the only clinic in the nation devoted to occupational and
environmental reproductive health hazards.
Nancy Gertner, an attorney, with specialization in
reproductive rights. In this presentation, she outlines the
current state of law regarding reproductive health hazards and
addresses corresponding corporate responsibility.
Nellie Knight, a supervisor of a hospital sterile
processing department, with hands-on experience in workplace
modification addressing reproductive safety needs.
The medical and legal issues are presented clearly and in a
manner suitable for audiences with no prior background in
reproductive hazards present in workplaces.