To Furnish a Workplace Free from Recognized Hazards: OSHA, State Occupational Safety and Health Agencies, and Fetal Protection Policies

The U.S. Supreme Court's 1991 decision in United Automobile Workers v. Johnson Controls capped a decade of adjudication of fetal protection policies under Title VII. In its decision, the Supreme Court barred the use of these policies, holding that the policies constituted unlawful gender discrimination. Prior to Johnson Controls, employers had justified these policies, which barred “fertile” women from certain workplaces, by contending that the workplace was not safe for women or their fetuses. Given this implicit disclosure by employers that their workplaces were unsafe, it is surprising that federal and state occupational safety and health agencies, charged with ensuring that employers furnish a workplace free from recognized hazards, did not play a larger role in the debate over these policies. This article examines the response of these agencies to the proliferation of fetal protection policies in the 1980s. It concludes that neither federal nor state occupational safety and health agencies crafted an adequate response to these policies during these years.