Who decides what's safe?
Flaherty, Francis
WHO DECIDES WHAT'S SAFE? FETAL PROTECTION IN THE WORKPLACE FRANCIS FLAHERTY isconsin physician Charles Fishburn worries about kids. A specialist in workplace health, his particular concern...
...Such control is a woman's right, a parental right, a private family matter...
...Battery-making entails major lead exposure--battery innards are almost all lead--and the doctor counseled the manufacturer to take steps to lower worker lead levels...
...Indeed the case extends further because, in its absence, liability fears coupled with rapid advances in medical knowledge about fetal harms from alcohol, tobacco smoke, and other substances would have spurred many more FP policies for tens of millions of working women...
...There is no reason," he said, "that 714: Commonweal this...couldn't be applied to alcohol abuse or other potential reasons for termination of parental rights...
...The new rules said no fertile woman could assume a high-lead job...
...The Occupational Safety and Health Administration (OSHA) is charged with such issues as lead exposure on the job and, in fact, has promulgated specific rules on lead...
...A person can seek damages from the drunken driver who hit and injured himself and his then-pregnant mother, for example...
...Though tragic exceptions confront us daily in the headlines, who is more likely than parents to have their children's interests at heart...
...Twenty-five years ago, these concerns led Fishburn to Globe Union, a Milwaukee car-battery company...
...Carried to the fetus by the mother's bloodstream, this poison can induce abortions and wreak great damage to the unborn child's brain...
...The effect was dramatic...
...Profit-maximizing corporations...
...those that apply equally to fertile men and fertile women are not included in the ban...
...It affects not only Johnson Controls, but also fifteen other large enterprises that have instituted what are now known as "fetal protection" (FP) policies...
...This "inherent difference between the sexes" permits different legislative treatment of them, he concluded, adding for good measure that "woman has always been dependent upon man" anyway...
...And do feminist principles or other social goals get tangled up in these safety nets...
...Nor need one travel to 1908 to find proof...
...Congress has left this choice to the woman...
...No system of vigilance is perfect...
...Eight women workers became pregnant while maintaining high lead levels, and while there was no proof of fetal injury the scare prompted the company to adopt an exclusionary approach...
...together...
...rights don't need reasons...
...Different characters with different problems, all trapped within the same urban corruption, are also all trapped within the same cinematic rectangle...
...But Sayles wears out his welcome with even the most sympathetic moviegoer by packing too much into his story...
...hatever the courts' limited role, there are plenty of good reasons to keep both companies and the state out of the business of supervising women and their babies...
...The Supreme Court itself pointed out the major one: "Concern for a woman's existing or potential offspring historically has been the excuse for denying women equal employment opportunities...
...and the peculiar power imbalances of the employeremployee relationship---all strongly counsel against giving bosses anything approaching discretion in this area...
...Indeed, fear of such liability doubtless has played a major role in FP policies at Johnson Controls and other companies...
...While the medical profession and the company can support them in the exercise of this responsibility, it cannot assume it for them without simultaneously infringing their rights as persons...
...Johnson Controls, for instance, would certainly quarrel with OSHA's 1978 finding that "there is no basis whatsoever for the claim that women of childbearing age should be excluded from the workplace in order to protect the fetus or the course of pregnancy...
...i= SCREEN URBAN JUNGLES 'CITY OF HOPE' & 'MONEY' hen he reviewed OddMan Out and Great Expectations upon their American release in 1947, James Agee wrote that he "enjoyed Great Expectations more than Carol Reed's Odd Man Out, but I was more interested in Reed's film and liked it more...
...There are bad parents...
...a main one is regulatory...
...The sex-specific proviso is fairly academic...
...Of course, with their history of sweatshops and child labor, companies are particularly suspect guardians of women's weal...
...Five years later this policy was shucked...
...Sayles the fllmmaker seems to listen to every single complaint 6 December 1991:715...
...Of course, there are obvious reasons why parents should be the primary guardians of their kids...
...Convenient proof comes from the very same Court, in a 1908 ruling over an Oregon law prohibiting any woman from working in a factory or laundry more than ten hours a day...
...There are many subsidiary rules to the new doctrine but, like all legal doctrines, its social effect is to deter damaging behavior through the threat of civil liability...
...In an AP news report, Connecticut Attorney General Richard Blumenthal voiced the ruling's broad significance...
...Agee went on to justify this seemingly contradictory statement by noting that the David Lean adaptation of Dickens was a skilled "translation" rather than an inspired "transfiguration" and that it failed to "run the risks that are always run when primary creative intelligence rather than the best that good taste can do is turned loose on the screen...
...White corruption spurs black corruption...
...6 December 1991:713 Basically, the Supreme Court held that Title VII--the federal law that forbids discrimination in the workplace due to race, sex, religion, and the like--leaves to the working mother all decisions about her unborn child...
...An economy that gives the poor a choice of reasonably safe jobs with reasonable compensation wouldn't hurt either...
...If employers gain a say-so on fetal health, feminists fear, women's independence may be in peril...
...Second, Congress can take up Justice Blackmun's offer and amend Title VII to allow employers to use fetal safety as a factor in employment decisions...
...The Court's narrow interpretation...means that an employer cannot exclude even pregnant women from an environment highly toxic to their fetuses...
...But who knows...
...A final check is found in the developing legal doctrine on prenatal harms...
...As ostensibly benign as the Johnson Controls FP policy, this law was valid because "woman's physical structure" put her "at a disadvantage in the struggle for subsistence," Justice Brewer explained...
...Under his guidance Globe Union did so, regularly monitoring blood-lead levels...
...Past sexist practices...
...Its basic unit is the lengthy tracking shot that stays on one set of characters until they walk out of the frame and another set of characters with different but related problems walk into it or are literally tracked down by the moving, hunting camera...
...In mid-July, for example, the Equal Employment Opportunity Commission reached a $66 million settlement with AT&T for discriminating against 13,000 pregnant employees as recently as the late 1970s...
...But placing reproductive control in women's hands does more than keep it out of state or corporate clutches...
...A woman was deemed fertile unless she presented a doctor's note to the contrary...
...Be that as it may, a worker-friendly regulatory agency that has issued rules with bite and enforces them conscientiously is one of the best safeguards for society's unborn...
...Such an amendment must be sharply drawn--limited to lead?--to assuage feminist fears of growing corporate control of women workers...
...For fetal protection, that means parents as the primary guardians of fetal health, with the state playing an important supporting role through workplace regulation and the development of legal doctrines...
...Technically, the ruling forbids only sex-specific fetal policies...
...Indeed, my heart goes out to Sayles for being so wideranging in his examination of our ills...
...If a basically decent white contractor-landlord yields to the pressure of a corrupt city hall and torches a poor black housing project that the venal mayor wants to turn into a condo complex, then the basically decent black councilman trying to help the victims of the arson will first establish his militant credentials by helping to frame a decent white teacher for molesting two black youths who actually roughed up the teacher...
...improving workplace ventilation...
...State bureaucracies...
...Given this history, it is hardly surprising that feminists fought the Johnson Controls FP policy...
...In a typical case in the last week of August, for instance, a Connecticut appeals court ruled that cocaine use during pregnancy constituted child abuse and thereupon terminated the offender's parental rights...
...Is the Supreme Court completely con_,d signing an unborn child's health to such parents...
...And, to his great credit, Sayles has created a style that perfectly mirrors his theme...
...Setting his story in a medium-sized city that seems to be a kind of compressed New York, this novelist turned cineast tries to show how the problems of whites and blacks, old and young, uncomfortably comfortable middle class and desperately workless working class are all bound "Here's your money, Sir, and I'm sure you came by it honestly...
...If regulators do their job right, poor, prospective parents won't have to make a Hobson's choice between decent jobs and healthy kids...
...In sharp contrast with its treatment of nonpregnancy disabilities, the telecommunications giant forced these pregnant workers to take unpaid maternity leave early in the third trimester, with no guarantees of a job upon return and little seniority credit...
...Charges of discrimination grew louder, and in 1984 the workers' union, the UAW, sued, with the support of the ACLU and the National Organization for Women...
...Just when you're beginning to get interested in one set of characters, the writer-director seems to murmur from behind the camera, "Let's move it, kids...
...There are such safeguards...
...The impact was broad too, applying nationwide to FRANCIS FLAHERTY, a regular Commonweal contributor, is a New York-based free-lance writer specializing in legal issues...
...The Court did not ignore the issue of fetal health...
...There is some evidence that lead exposure may damage sperm, and thus the fetus, but most medical data to date focus on the dangers of maternal exposure...
...Forty states now allow persons to sue for injuries sustained in utero...
...Even the narrowest version may be politically doomed, and maybe rightly so...
...Besides the arson and the teacher's victimization, Sayles dramatizes (or at least sketches) the anomie of Nick, the contractor's son, the councilman's struggle to secure better schooling for his community's children, the indignities inflicted by and on overworked cops, the machinations of the city's D.A., who has political ambitions, the affair between Nick and a policeman's ex-wife, the councilman's happy but tested marriage, the conflict between militant black Muslims and black liberals, and--believe me--there's more, more, more...
...A specialist in workplace health, his particular concern is fetal injury from lead...
...That said, however, the choice was emphatically the woman's...
...Some women were shifted out of high-lead jobs, often to lower-paying ones in the company...
...City of Hope isn't trying because its vision of this country is bleak...
...But because the Court is a law-interpreter rather than a law-maker, it must accede to "the plain language and history" of Title VII as enacted by Congress, he said...
...In 1977 Globe Union supplemented these efforts with an official lead policy...
...and furnishing respirators in high-lead areas of its factories...
...Nevertheless, many companies like Johnson Controls opt to exceed OSHA standards, out of fear of liability, perhaps, or out of sincere doubt about the adequacy of OSHA's lead rules...
...What about those tragic D headlines...
...fourteen battery plants run by Johnson Controls, a large corporation that had earlier acquired Globe Union...
...Moreover, welfare officials and courts are now treating fetal abuse like child abuse...
...We've got a caseload backed up to the last Republican administration...
...There may come a time when a pregnant woman, falling-down drunk after hours at a tavern, will as surely lose custody of her unborn child as would a parent who severely beats his toddler...
...P]rotection of the health of the unborn child is the immediate and direct responsibility of the prospective parents," said the policy...
...the biases inherent in profit-making institutions...
...If Congress wants a different result, it need only amend the statute...
...Other women, rather than be transferred, chose (on their own) to be sterilized...
...the high court decision has wide reach...
...The injustice done to the poor breeds injustice to the middle class...
...Are there any supplemental safeguards our society can offer its unborn children...
...And poverty 4 can draw even well-meaning ones into dangerD ous jobs...
...Conscientious regulation, Title VII amendments, and emerging legal trends: these are some possible safeguards for the fetus in addition to parental care...
...Precisely so, said Justice Byron White in his concurrence...
...No one can disregard the possibility of injury to future children," Justice Blackmun declared...
...9 ut what about the baby...
...The company would inform all women workers of childbearing age of the dangers of lead during pregnancy, and would counsel them that it probably made "good sense" not to take designated high-lead jobs in the company if a pregnancy was planned...
...Personal autonomy is its own justification...
...Johnson Controls had it fight the first time...
...the best a society can do is to fashion as good a mix as it can consistent with its other goals and needs...
...Sayles's intricately structured script portrays the"city of hope" as a house of cards in collapse...
...One cannot say how the future will shape this inchoate doctrine...
...It is no more appropriate for the courts than it is for individual employers to decide whether a women's reproductive role is more important to herself and her family than her economic role," wrote Justice Harry Blackmun for the majority...
...But the corporation--although it can play pivotal technical and informational roles with respect to workplace hazards--must be deprived of any but the most ministerial authority over fetal health...
...Sayles does manage to etch some of these situations vividly but at least half of them aren't so much dramatized as semaphored...
...After nearly seven years of litigation, the Supreme Court pronounced the final judicial word on the case last March, striking down the Johnson Controls policy as illegal sex discrimination...
...While Title VII and attendant amendments have changed these once-common practices, women's rights advocates aver that pregnancy prejudice continues strongly in today's workplace...
...Agee's distinctions can be echoed in regard to two new movies that examine the economic and social flaws in the way Americans live now: Norman Jewison's glib, shrewd, safeplaying, and immensely enjoyable Other People's Money and John Sayles's admirable but trying City of Hope...
...it is a matter of"deep social concern...
Vol. 118 • December 1991 • No. 21
