"Fetal Protection Policies and the Cultural Mandate for Job Segregation by Gender"
A précis is a common assignment in many courses, particularly in Politics and Policy courses at CGU.
Background and Intent
This research project would seek to better understand the cultural context in which fetal protection policies (FPPs) emerged during the 1970s and 1980s and will suggest its significance to public policy issues today regarding gender discrimination and the slams of the fetus. Following court-ordered affirmative action hiring in the 1970s, a number of industrial managers instituted fetal protection policies. The policies generally barred women from job classifications that involved exposure to specific chemicals—unless they were sterilized or past a certain management-specified childbearing age. No national survey of FPPs frequency and content has been made, but court and some research of corporate policies suggest that policies barring all fertile women from a specific worksite, were instituted exclusively in male-dominated—frequently unionized—industries (Becker 1986: 1237-38; Blank 1993: 80-101; OTA 1985: 263-276). Estimates of jobs barred to women because of these polices range from a low of 100,000 to a newer figure of 20 million (Becker 1986: 1226). Scholars, some government agencies, and the courts have compared FPPs to earlier state-based protective labor legislation, which delimited the range of women's wage-earning possibilities, have noted the absence of these policies in female-dominated industries where identical chemicals are present, and have commented on their failure to address evidence of chemical hazards to male reproductive capabilities (Stellmau and Henifin 1982; Scott 1984; OTA 1985; International Union, UAWv. Johnson Controls 1991). In the past decade, academics and the federal government have also sought to unravel the rights and responsibilities issues, and the public policy considerations brought to life by the implementation of FPPs by reviewing case law (Becker 1986; Blank 1993) and investigated governmental responsibility (OTA 1985; Committee on Education and Labor 1990).
Robert Blank's 1993 monograph provides the most sustained analysis of the rights and responsibilities issues embodied in FPPs. His work includes an extensive review of the case law and much briefer treatment of governmental responsibility and medical research on reproductive health hazards. Blank's book is significant because it appears following the 1991 Supreme Court decision in International Union, UAW v. Johnson Controls, in which the Court unanimously found the company's FPP to be facially discriminatory. The majority opinion also held that FPPs could not be sustained with a bona fide occupational qualification defense, although some justices in concurring opinions disagreed. Basing his argument heavily on the evolving case law in third party tort liability, which he finds propelled by new medical technologies and knowledge surrounding fetal care, Blank concludes that the public policy concerns raised by FPPs remain of utmost interest, because society has an interest in preserving both women's employment opportunities and the health of their children. He proposes that if business and society wish to achieve these twin goals, efforts must be made to strengthen—and and make national—pregnancy disability pay, paid parental leave policies, and voluntary health education programs at worksites.
Blank's book, while it suggests excellent policy options, perpetuates the discussion of FPPs in terms of womens' presumed societal role to bear children and somewhat takes for granted the new more autonomous status accorded the fetus in relation to its mother. I suspect that segregation of jobs by gender has been bolstered by precisely these kind of assumptious about what is “natural” for women to do—primarily bear children—and alternatively what is “unnatural” for them—be economic providers. These notions, possibly patriarchal in origin but also confirmed by presumed objective scientific data, could well contribute to the motivation of employers to implement a policy that segregates jobs by sex. In the case of the lead-battery maker Johnson Controls, the company barred women under 50 years of age, and without medical documentation of sterilization, from certain jobs where the potential elevation of lead in their blood was deemed harmful to a fetus. But when a male employee presented evidence of the damage an elevated blood lead level could pose to his reproductive capacity and then asked to be reassigned to a new job for the period in which he was trying to conceive a child, the company refused. Why was the employer convinced by the scientific data about women and the danger to fetuses but not the evidence about hazards to male reproduction?
My research then would attempt to understand the cultural currents that allowed FPPs to emerge in the 1970s and 1980s and specifically to look at the position of women in this debate. I will note how cultural perceptions about women's bodies and especially their reproductive capacity might be used to reinforce or justify occupational segregation by sex, or alternatively, how the current emphasis on the fetus can erase women from the discussion of these policies. I will situate this research within the theoretical literature on job segregation by gender and in the historical context of women's wage-earning work—specifically the evolution of pre-1970s state protective labor legislation. While Mary Becker has compared FPPs and state protective labor legislation, her article focuses primarily on case law and freeze frames protective labor legislation in the early part of the twentieth century. Reviewing, even briefly, the evolution of protective labor legislation through discreet historical periods of the twentieth century, will provide a better understanding of how culture can work to maintain a certain ideology throughout apparently radical changes and would thus give a context for understanding the rapid re-emergence of “female protection” in the 1970s.
By reviewing management journals, legal briefs, and copies of fetal protection policies I would hope to uncover their stated reasons for implementing these policies and how they viewed women workers. To help uncover changing cultural currents that might have influenced and bolstered the notion that women, or possibly fetuses, need to be protected in the workplace, I intend to survey a popular news-weekly, Time, at five-year intervals between 1975 and 1990 (for a total of four years). I would look specifically for descriptions and depictions of women's physical capabilities and discussions related to the fetus as an autonomous being or integral pan of the mother. A third area of related research would be to review government and legislative awareness of and reaction to reproductive hazards. Using government documents, hearings, debates, and reports, I would survey the types of medical research implemented for any disparity between efforts to determine hazards to male or female reproductive systems that might suggest a cultural bias toward specific male/female roles.
This research differs from previous work in its emphasis on cultural context for management and government actions. While the Johnsons Control decision represents a legal victory for women, I suspect that my research of the cultural context in which FPPs emerged will suggest the difficulty public policy has in acting against cultural mandates and will indicate the need to expose these cultural ideologies if we truly wish to see an end to job segregation by gender.
Blank, Robert, Fetal Protection in the Workplace: Women's Rights, Business Interests, and the Unborn (New York: Columbia University Press, 1993).
Becker, Mary, “From Muller v. Oregon to Fetal Vulnerability Policies,” University of Chicago Law Review 53 (1986) 1217-1273.
Committee on Education and Labor, U.S. House of Representatives, A Report on the EEOC, Title IXlI and Workplace Fetal Protection Policies in the 1980s, April 1990.Précis
International Union, UAW v. Johnson Controls 111 S.Ct. 1196 (1991).
Scott, Judith, "Keeping Women in Their Place," 180-195 in Wendy Chavkin, editor, Double Exposure (New York: Monthly Review Press, 1984).
Stellman, Jeanne and Mary Sue Henifin, "No Fertile Women Need Apply," 117-145 in Ruth Hubbard, Mary Sue Henifin and Barbara Fried, Biological Woman—The Convenient Myth (Cambridge, MA: Schenlanan Publishing, 1982).
U.S. Office of Technology Assessment, Reproductive Health Hazards in the Workplace (Washington, D.C.: Government Printing Office, December 1985).