69 Geo. L. J. 641 (1980-1981)
Firing the Woman to Protect the Fetus: The Reconciliation of Fetal Protection with Employment Opportunity Goals under Title VII

handle is hein.journals/glj69 and id is 657 raw text is: Firing the Woman to Protect the Fetus:
The Reconciliation of Fetal Protection with
Employment Opportunity Goals under Title VII
Recently employers have with increasing frequency excluded fertile
and pregnant women from jobs in which they are exposed to fetally
toxic substances. In this article, Professor Williams analyzes this
practice in the context of the prohibition against sex-based discrimi-
nation embodied in title VII. In so doing, Professor Williams sets
forth an interpretation of title VII that permits an employer to
fashion an employment policy that protects both fetal health and,
through a requirement of neutrality, the employment status of
In January 1978, the American Cyanamid Company announced that all
fertile women would be removed from exposure to toxic substances at its
Willow Island, West Virginia plant.' The policy initially applied only to
workers in the pigments department2 where women were exposed to lead, a
substance which the company medical director believed could cause birth
defects in fetuses.3 According to a company official, the removal only of
women known to be pregnant would not have sufficed because harm to the
fetus by lead in the workplace occurs in the early weeks of pregnancy, when a
woman is unlikely to know she is pregnant.4 In the company's view, reliable
protection therefore required the exclusion of all women of childbearing age
who could not show that they were unable to conceive.5 Two women workers
* Assistant Professor of Law, Georgetown University Law Center; B.A. 1966, University of California,
Berkeley; J.D. 1970, Boalt Hall, University of California, Berkeley. I would like to express appreciation to
my colleagues, Charles Abernathy and Michael Seidman, and to Nancy Steams and Susan Ross, for their
comments on a draft of this article. The views expressed here are, of course, entirely my own. I also
acknowledge my debt to Michelle Gammer and Linda Kline, Georgetown University law students, for
their research assistance in the preparation of this article.
1. Bronson, Issue of Fetal Damage Stirs Women Workers at Chemical Plant, Wall St. J., Feb. 9, 1979, at
1, col. 1 [hereinafter Fetal Damage]. The Willow Island incident resulted from the implementation in that
facility of a company-wide policy instituted in other American Cyanamid plants as early as September
1977. Id. The policy required that women of childbearing age not be assigned to or allowed to bid on any
job that involved exposure to substances the company considered harmful to fetuses. Id. Among the
substances on the list were lead and mercury and their compounds, benzene, vinyl chloride, acrylamide,
carbon disulfide, carbon monoxide, carbon tetrachloride, dimethyl sulfate, and cyanide. Bronson,
Chemical Firms Move to Protect Women from Substances that May Harm Fetuses, Wall St. J., Nov. 7, 1977,
at 1, col. 1 [hereinafter Chemical Firms].
2. Complaint at 1 37, Christman v. American Cyanamid Company, No. 80-0024 (N.D. W. Va., filed
Jan. 30, 1980) [hereinafter American Cyanamid Complaint]. The complaint also alleged that the policy
went into effect on or about January 30 and 31, 1978. Id.. at 1 29.
3. Bronson, Fetal Damage, supra note 1, at 33, col. 2.
4. Id.
5. See Letter from J.S. Tobin, M.D., Associate Corporate Medical Director, American Cyanamid

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