While reading a book about the Bork nomination for the Supreme Court**, I ran across an interesting case that was used to build a case against his nomination.
The case involved a multitude of issues: the right of a company to assign workers based on sex, avoidance of hazards in the workplace, pollution, forced sterilization, and the right of workers to make their own decisions.
The facts as best as I can determine from reading articles and court documents is that in 1978 American Cyanamid Company, worried about lead exposure to its female employees who might become pregnant that forbade them working in areas of high exposure unless they had themselves sterilized. The purpose was to assure that no women who could possibly carry a fetus would risk of fetal exposure to toxic workplace chemicals. This policy applied only to women, however "According to OSHA rule making on the lead standard, "hazards to fetuses are not eliminated by keeping fertile and pregnant women out of a lead-exposure workplace;exposure of male employees may also be hazardous. Although the exposure of men to lead toxicity results primarily in decreased sex drive, impotence, and sterility, sperm cells can be affected and in some cases pass on genetic damage to fetuses.*
The company held a series of meetings with female employees explaining they would be terminated unless they could provide a physician's certificate of sterilization. Five women did so to keep their jobs.
In 1979, they were cited by OSHA:
The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to employees, in that: The employer adopted and implemented a policy which required women employees to be sterilized in order to be eligible to work in the areas of the plant where they would be exposed to certain toxic substances ....'
The company appealed that ruling and won both in the lower courts and the DC Court of Appeals in an opinion written by Judge Bork who "ruled that a policy requiring sterilization is not a "hazard" within the meaning of the general duty clause of the OSH Act." Now that ruling was merely on the narrow aspect of the OSHA ruling, but you can imagine the firestorm that erupted as it looked like Bork was saying it was OK for companies to require that workers be sterilized in order to work if the company required it. That, of course, was, in fact, the result. Richard Lewis, in the Penn Law Review wrote a rather scathing review of Bork's interpretation of the law. My interest was much broader. How can government or industry protect workers from a hazardous environment without requiring such drastic measures? The company's goal was a valid one. They didn't want a host of mutant children running around as a result of mothers having been exposed to lead and other noxious chemicals, but rather than try to clean up the environment, they chose a much more problematic response. (Proposed new OSHA regulation limited the amount of lead in the air were vigorously opposed by the industry.)
That they were treating the men differently than the women might also have been subject to scrutiny. And, in fact, the company was later sued under Title VII of the Civil Rights Act of 1964 for sex discrimination, but was settled in 1984 without a court resolution.
Bork's decision, writing for the court, changed the emphasis of OSHA's responsibility to one of protecting the business rather than the employee's health. "Given the choice between these two rules, the court's decision to limit liability was reasonably consistent with one of the Act's unstated constraints: "Congress does not appear to have intended to protect employees by putting their employers out of business ....The court's interpretation of the Act, however, gave short shrift to the primary purpose of the Act:protection of employee health" Bork reasoned that the sterilization policy lay beyond the Act's scope because the harm suffered by sterilized employees resulted not from the policy but rather from the employees' decision to be sterilized as influenced by "economic and social factors which operate primarily outside the workplace," a bizarre interpretation, indeed.
References:
Lewis, Richard. "OCAW V. American Cyanamid: The Shrinking of the Occupational Safety and Health Act." University of Pennsylvania Law Review 133, no. 5 (1985), 1167. doi:10.2307/3311995.
"OCAW wins settlement against Cyanamid." Chemical & Engineering News 57, no. 8 (1979), 7. doi:10.1021/cen-v057n008.p007.
*See OSHA Preamble to Final Standards, Occupational Exposure to Lead, 43 Fed. Reg. 52,952,52,959-60 (1978)
**Bronner, Ethan. Battle for Justice: How the Bork Nomination Shook America. New York: Sterling Publishing Company, 2007.
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