This article will address the legal issues involved in establishing an equitable balance between women's rights to equal employment opportunities and the right of future generations to be free from disease caused by parental exposures to hazardous chemical work environments. In the author's opinion the present regulatory framework provided by the Occupational Safety and Health Act of 1970 (OSHAct), the Toxic Substances Control Act (TSCA), and Title VII of the Civil Rights Act of 1964 is inadequate to provide the requisite degree of protection to employees and, particularly, to their offspring. Part II of the article will examine some of the available scientific and medical data regarding the reproductive effects of a few of the most commonly used industrial chemicals. In Part III the statutory scheme provided by the OSHAct, TSCA and Title VII will be analyzed. As stated above, the discussion will reveal that these statutes do not adequately answer the thorny problem of reproductive fetal health protection from the damaging effects of toxic substances. The primary reason for this inadequacy is that the statutes were never designed nor intended to deal with the health problems facing future generations of American workers, but rather, specifically focus on the present generation of employees. Part IV of the article presents a statutory proposal in the form of an amendment to the OSHAct aimed at accommodating the societal needs for fetal protection, without weakening the mandate of equal employment rights legislation. The proposed statute is designed to address the scientific reality that both women's and men's reproductive systems might be adversely affected by certain toxic chemicals. Therefore, both classes of employees should be legally protected from exposure to hazardous work environment by designating nondiscriminatory standards designed to best achieve this goal. Additionally, guidelines will be recommended for use by the courts to scrutinize employer's defenses regarding the establishment of exclusionary policies.
Yvonne Sor, Fertility or Unemployment - Should You Have to Choose, 1 J.L. & Health 141 (1985-1987)