The law against fetal protection policies for reproductive health hazards in the workplace: Implications for noise and vibration exposure

Is there a legal basis for employing special risk assessments or other preventive strategies to protect fetal health when pregnant women are exposed to potentially dangerous levels of occupational noise and vibration that may cause adverse effects on pregnancy outcome or cause hearing loss? A fetus in utero is highly susceptible to risks from toxic or hazardous agents in the workplace. Yet, complex litigation before the U.S. Supreme Court in IUAW v Johnson Controls held that fetal protection policies are illegal. The Court held that despite the risks to female employees of ‘‘childbearing age and capability’’ the law prohibits excluding women from well-paying jobs that have high lead exposure. While articulating women’s equal opportunity to work in high-risk occupations during or before pregnancy, the Court did not require risk assessment or state guidelines regarding possible maternal or fetal exposures to workplace harms. This paper will explore legal underpinnings of fetal protection policies under Title VII discrimination law, the Occupational Safety and Health Act of 1970, and the related precedents concerning fetal protection to consider for the first time, the implications of these laws in workplaces where pregnant women are exposed to hazardous levels of noise and vibration.