If you have jobs in which employees work in environments which could expose the fetuses and unborn children of pregnant employees to possible harm, you need a policy to protect the female employees’ rights and also protects your business.
The U.S. Supreme Court [in UAW v. Johnson Controls (191)] ruled employers can’t legally bar women of childbearing age from certain jobs because of possible risk to their unborn children. The Court examined a policy barring women of childbearing age from working at a car battery plant. The concentration of lead in the blood of plant employees is generally above levels recommended for pregnant women.
Though Civil Rights laws prohibit job discrimination, they tolerate a discriminatory policy if it is a “bona fide occupation qualification [BFOQ] reasonably necessary to the normal operation of that particular business.” The court’s ruling held that this BFOQ exception applies only to policies involving the “essence of the business,” such as employee safety, not an unborn fetus’s safety.
The Court ruled such a policy forces women to choose between bearing children and keeping a job, which is a violation of federal sex discrimination laws.
So the employer is left between a rock and a hard place. The rock: Sex discrimination charges from women denied jobs because the work poses risks to unborn fetuses. The hard place: Liability suits from the deformed children of these same women.
If you have women employees of childbearing age working in hazardous jobs, are you wondering what your liabilities are? There are no sure-fire guarantees to protect you against liability. But there are some things you can do to help minimize your risks.
- Before hiring employees, make it clear to them what dangers they may face in performing their job duties. Once you hire employees, train and educate them on the types of hazards they may encounter on the job, and ways to protect themselves.
- Encourage pregnant employees to seek reassignment until the birth of the baby. Note: Make sure the reassignment is voluntary and not forced upon the employee. The Supreme Court guidelines make it clear that reassignments must be voluntary and there can be no reduction in salary or benefits during the reassignment
- If alternate jobs aren’t available, consider offering employees a leave of absence until the baby is born.
- Have all employees sign an acknowledgment stating they have been advised of the potential hazards and are voluntarily wanting to continue working in their specific job.
- Explore having female employees sign waivers stating: the employee is aware the work may pose risks to unborn fetuses, and the employee assumes responsibility for any ill effects arising from the work. Understand… such waivers don’t absolve you or your company from the responsibility to provide a safe workplace.
Whatever you decide to do, be sure to spell it out in a policy in your handbook. Such a policy should include the following components:
1. A commitment on behalf of the company wanting to ensure the safety of all employees.
2. Some anti-discrimination language.
3. Encourage alternative arrangements at the earliest possible time.
Warning: Employees who insist on remaining in a hazardous job still have the right to sue your business for damages should their babies be born with birth defects. Such lawsuits can occur years after employees were exposed to hazardous conditions.
But you can try to minimize your liabilities if you take preventative measures and make sure your employees are aware of them.
Important: Consult with your attorney about the steps you take in this area to protect the rights of your employees while also protecting your business. Also, have your attorney assist you in preparing the language for your policy in your employee handbook.