Document G5r0EX4xjmb0j1E3na5njvz8V

Organization Resources Counselors, Inc May 12, 1978 r kereller Center Avenue ot the American New York, New York 10036 212-575-7500 Cable Address. ORESCON Telex Number. 12-6544 Memorandum TO: FROM: RE: ORC Equal Opportunity Legal Group Members George P. Sape Exposure to Hazardous Substances -- Conflict in EEO and OSHA The evolvement and expansion of separate and unrelated areas of federal regulatory activity often produce conflicts when two such areas, starting from different premises.establish rules and regulations for an area where their intere&fes^Averlap. A classic example of this problem, with its appuwfWa^tCpossible liabilities for employers, is currently develqpf^g nmltEhe area of regulating employee exposure to toxic sub^tanc^so ^OSHA has increasingly been focusing its efforts on health and its relationship to exposure to hazardousr-siuDsuaiiees in the workplace. This concern is based upon the mana<=M3f the Occupational Safety and Health Act, that work environments must be made safe and healthful for employees. Traditionally EEOC has not been concerned with this problem, but rather with insuring that employees or applicants have full opportunity in employment without regard to any invidious discrimination which may be leveled against them because of their membership in a particular protected class of persons. The confluence of these two unrelated interests has occurred re cently where exposure to hazardous substances is handled differently for women and for men. The concern from the health and safety stand point focuses on two elements: (1) the potential risk of injury to an employee because of exposure to toxic substances; and (2) the po tential risk of injury to a worker's capacity to produce healthy offspring because of exposure to a hazardous substance. The first is characterized by such incidents as the carcinogenic effects of polyvinyl chloride on all employees. This generally has not produced equal employment concerns. An example of the second element is ex posure to lead, a substance which remains in the body even after ex posure to the substance has ceased. Thus a female employee exposed to lead runs the risk of bearing a malformed child because of a trans placental transfer of lead to the developing fetus. In order to BFS 005915 2 minimize the risk to women's reproductive functions, employers have sought to remove all women workers from jobs where such ex posures may occur, thus risking possible charges of violating Title VII. The equal employment concern in this area is further compounded by the fact that many of the transfers or reassignments involve jobs with less risk, but also less pay or more limited opportunities for advancement. The EEOC's concern in this area has recently become pronounced, with its Chair, Eleanor Holmes Norton, indicating that the Com mission will in all likelihood have to issue guidelines on this issue in order to protect the job rights of affected class mem bers (women workers in virtually all instances). Attached to this memorandum is the text of a Commission policy statement as adopt ed on April 4, 1978, which demonstrates theieflfffr^Gtf concern about this issue embodied in the Commission -TbewSenjniWion' s position on this issue is most explicitly state^Jig its concluding sentence which states in part: "...EEOQv r^poarinue the vigorous enforce ment of Title VII as to (mp\$yiiient practices or policies that unlawfully exclude women V^Jchlldbearing capacity and any other persons from the workplace or otherwise adversely affect the eco nomic opportunities of any individuals protected by Title VII-. " While not a guideline, this statement by the Commission clearly indicates that it intends to pursue equal opportunity in all instances where an adverse effect on a protected class is found to exist, notwithstanding any defense of toxic exposure. EEOC's concern in this area is particularly acute because many of the jobs that have exposure questions surrounding them are those jobs that only recently have been made available to women pursuant to EEO concerns, and that any movement now to restrict entry of women into these positions will retard the progress of women in equal job opportunities. Accordingly, EEOC's current position is premised upon the belief that different treatment of women in the workplace, even if based upon a benien Dolicv of removine them from exposure to potential toxins, constitutes impermissible sex- based discrimination. This position is further reinforced by EEOC's view that any dis parate policy requiring exclusion of women from areas where ex posure to hazardous substances is a risk must be premised upon the fact that women, due to their principal role in the childbearing process, are more susceptible to reproductive health risks than men. EEO contends, and not without some scientific support, that this is not a proven fact; that in fact toxic substances which would affect women in this regard most often have similar effects on men. Further, the Commission contends that assuming that women as a group are more prone to possible injury from exposure to hazard ous substances than men and then acting to their detriment on that BFS 005916 assumption, assigns to women workers negative class characteristics based upon their sex -- a clear violation of Title VII principles. This same principle has been reviewed by many courts in differ ent circumstances, generally leading to the conclusion that where such class-based characteristics are assigned to individuals within a class, and these assignations result in a negative impact on the individuals, then the result is discrimination. Most re cently, the effects of this kind of reasonig^an be seen in judicial examination of sex-based acAuaaFWifAt^lies, where such are used to reduce the monthly ^etSijemei|p)]ra.yments to women because of their projected greater aftrilgsviry ever men. In examining this question recently, tli\ wmr^sWourt concluded in Los Angeles v. Manhart, 46 LW 4347 that where such group characteristics were used to make decisions which had an adverse effect upon indiv iduals in a protected class, then a violation of the law occurred. The court noted that it is unlawful to discriminate against any individual with respect to compensation, terms, conditions, and privileges of employment because of such individual *s race, color, religion, sex or national origin. The court then noted that the statute "precludes treatment of individuals as simply components of a racial, religious, sexual, or national class." 46 LW at 4349. The court then goes on to clearly state the principle that even if such general characteristics are true for a class, they still cannot be used to the detriment of any individual within that class. In other words, if one were to make the decision that women must be excluded from a work environment where there is exposure to possible toxic substances, then to avoid the existence of class-based dis crimination an employer would have to establish that in every in stance where a woman is excluded, the characteristic of the class applies with full force to that individual. This kind of oversimplification will not, of course, solve the problems of how to achieve the social objectives embodied respect ively in OSHA and Title VII. Many difficult problems remain in this area, both from an EEO and an occupational safety and health position. On the one hand, the causal relationships between expo sures to various kinds of substances and subsequent injury are not easily determined under the existing body of scientific and medical knowledge. Secondly, the toxic effects of most substances have not been identified with enough precision to allow for any broad class-wide generalizations. Furthermore, certain toxic substances only affect the fetus (teratogens) with no noticeable toxic effect on the mother herself. To exclude all women, or even women of childbearing age from exposure to such substances may be an over- reaction with unnecessary discriminatory effects. Other substances may cause-genetic damage to future generations (mutagens). Most of these substances, it is assumed, work equally oi^dSbth men and women, though their specific effects are frequents^ known for long periods of time. Excluding chil *' ' g'Oa'^omen from such exposure may be equally discriminator moj^t of these sub stances work equally on both men and leh'SSsj effecting the basic BF5 4 genetic structure which is transferrable to an offspring from either parent. These are but two kinds of examples which point to the dan gers of overgeneralization in this area. This lack of knowledge compounds an employ^f'^problem. Given the traditional legal principles applied- UMAr^Ji^ie VII, an employer generally has the duty to prove^ tlSSay an^action that he takes is dictated by business neces^dTysshe^e % practice has a dispropor tionate impact on a nxplfeijtln^ ''J.ass. Because of the lack of sci entific informationf^bfifjJcfent evidence demonstrating business necessity is difficult to obtain. Similarly, other traditional defenses suffer from the same lack of concrete information. Accordingly, an employer is caught in a trap of being prohibited from setting strict standards in limiting toxic exposure for its women employees by the nondiscrimination principles of Title VII while being under an obligation under the Occupational Safety and Health Act to reduce workplace hazards in any manner available. Without further guidance from the government in this area, an employment decision may simply be a guess as to which course of action produces the least risk. The efforts currently underway between the EEOC and OSHA to develop meaningful guidelines have not yet produced any significant progress. At present, each agency continues to promote its view to the ex clusion of the other. In the meantime, some employers are faced with increasing militancy among women workers who perceive that their employment opportunities may be restricted because of their exclusion from certain "high-risk" occupations based on OSHA con cerns and do not hesitate to allege sex discrimination in such de nials. Until further guidance is developed by the government or private groups working in this area, employment decisions based upon potential exposure to harmful substances must be carefully thought out. Open and frank discussions with employees may serve as the best tool at this time. Also, such problem areas as reassignment to avoid exposure of protected class members should be carefully examined for such matters as rate retention and career path impli cations to avoid possible class-wide liability under anti-discrimina tion principles. BFS 00591S Proposed Statement on Hazardous Substances and Equal Employment Opportunity The U.S. Equal Employment Opportunity Commission be lieves that the objectives of Title VII of the Civil Rights Act of 1964, as amended, to eliminate employment discrimination comport with the objectives of those laws designed to assure a workplace free or^o?tdi^bns that threaten the health or safe^^f"^^loyees. Employers have-rtf}* (^^^^mdertaken employment practices or policies that adversely affect the economic opportunities of women of childbearing capacity and others protected by Title VII, by excluding them from jobs involving exposure to allegedly hazardous substances. The Commission's chief concern is that employers, in seeking to meet their responsibilities to assure a secure workplace free of risk to the health or safety of employees, do so without treating women and men unequally because of their sex and without violating the rights of individuals to retain or compete for jobs or promotions without regard to race, sex, national origin, religion or color. Exclu sionary employment actions taken hastily or without regard for rigorous adherence to acceptable scientific processes viewed as unlawful discrimination. Further, the Com mission urges employers to make sure that such exclusionary practices not be instituted without making a serious effort to find alternative methods with a less exclusionary impact. BFS 005919 r * 2- - To promote the more efficient administration of these laws, therefore, the Equal Employment Opportunity Commission, in coordination with all agencies concerned, has joined in an examination of these issues with a view to providing more explicit guidance. Pending this examinatioh^^^^lLl con tinue the vigorous enforcementr^c^J^^leo/l'l as to all em ployment practices or polScWfe^that unlawfully exclude women of childbearing capacity and any other persons from the workplace or otherwise adversely affect the economic opportunities of any individuals protected by Title VII. 4 BF5 005920