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Biological Monitoring: The Employer's Dilemma

Published online by Cambridge University Press:  24 February 2021

Frances H. Miller
Frances H. Miller*
Affiliation:
Professor of Law, Boston University School of Law. Mount Holyoke College; Boston University School of Law.
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Abstract

The industrial workplace contains many potential health hazards that not only can cause great harm to workers, but also can destroy the employers’ economic stability. Often these hazards are documented and dealt with, but frequently they are unknown. When health-conscious employers monitor the physical well-being of their employees in an effort to avoid the terrible personal and economic costs these hazards can produce, they may be supplying their employees with the documentation necessary to recover financially for their industrial illnesses.

This Article analyzes this dilemma confronting employers. It describes the many factors employers must consider when deciding whether to institute a monitoring process that takes full advantage of technological developments in medical care. The Article suggests an approach employers may take until some of the disincentives surrounding the implementation of monitoring are removed.

Type
Articles
Information
American Journal of Law & Medicine , Volume 9 , Issue 4 , Winter 1984 , pp. 387 - 426
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University

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Footnotes

The author gratefully acknowledges the assistance of Mary Ellen Linnehan and Jeffrey Messinger, Class of 1984, Boston University School of Law.

References

1 Manville's Chapter II Filing Spotlights Denver Firm Probing Health Hazards, Wall St. J., Aug. 30, 1982, at 6, col. 2.

2 See, e.g., Asbestos: Who Knew What When? Boston Globe, Oct. 26, 1982, at 49, col. 4 (reviewing business correspondence of president Sumner Simpson of Raybestos-Manhattan Co. going back to the 1920's and discussing suspected hazards of asbestos). The medical literature began linking asbestos exposure to cancer in the 1930's. See, e.g., Lynch, & Smith, Pulmonary Asbestosis III: Carcinoma of Lung in Asbesto-Silicosis, 24 Am. J. Cancer 56–64 (1935).CrossRefGoogle Scholar

3 The National Institute for Occupational Safety and Health (NIOSH) estimates that one of every four Americans is exposed on the job to federally regulated hazardous substances. NIOSH, U.S. DEP't OF HEALTH, EDUC. AND WELFARE, THE RIGHT TO KNOW (1977). For a thoughtful discussion of the implications of increasing numbers of claims involving occupational disease, see Smith, & Channon, The Rising Storm, 17 FORUM 139 (1981).Google Scholar Cf. Phillips, Asbestos Litigation: The Test of the Tort System, 36 ARK. L. REV. 343 (1983)Google Scholar; Asbestos Legal ‘Tidal Wave’ Closing In, 68 A.B.A. J. 397 (1982) (discussing proposed legislative solutions). See also Occupational Diseases Receive More Scrutiny Since Manville Case, Wall St. J., Dec. 20, 1982, at 1, col. 6.

4 See generally Note, Workers’ Compensation and the Asbestos Industry, 33 SYRACUSE L. REV. 1073 (1982).

5 This uncertainty is generated by the fact that in actions at law, employees must contend with the defenses of assumption of risk, contributory negligence and the fellow servant rule, which do not diminish or bar worker's compensation recovery. 1 A., LARSON WORKMEN's COMPENSATION LAW § 4.50 (1981)Google Scholar.

6 See generally Note, Exceptions to the Exclusive Remedy Requirement of Workers’ Compensation Statutes, 96 HARV. L. REV. 1641 (1983).

7 See 2A A., LARSON supra note 5, at § 68.11 (1982)CrossRefGoogle Scholar; Comment, Workers’ Compensation: Expanding the Intentional Tort Exception to Include Willful, Wanton, and Reckless Employer Misconduct, 58 NOTRE DAME LAW. 890 (1983).Google Scholar

8 See, e.g., Note, Worker's Compensation: The Dual Capacity Doctrine, 6 WM. MITCHELL L. REV. 813 (1980); Comment, Worker's Compensation and the Employee's Right to Maintain a Tort Action Against the Parent Corporation: Gulf Stream Land and Development Corporation v. Wilkerson, 6 NOVA L.J. 649 (1982).Google Scholar

9 See, e.g., Larson, Third-Party Action Over Against Workers’ Compensation Employer, 1982 DUKE L.J. 483.Google Scholar

10 See generally R., BASELT BIOLOGICAL MONITORING METHODS FOR INDUSTRIAL CHEMICALS (1980)Google Scholar; A., LINCH BIOLOGICAL MONITORING FOR INDUSTRIAL CHEMICAL EXPOSURE CONTROL (1974)Google Scholar; Gompertz, Assessment of Risk by Biological Monitoring, 38 BRIT. J. IND. MED. 198 (1981)Google Scholar; Kilian, Use of Human Biological Monitoring for Risk Assessment of Mutagenesis and Carcinogenic Effect, in I SAFE HANDLING OF CHEMICAL CARCINOGENS, MUTAGENS, TERATOGENS AND HIGHLY TOXIC SUBSTANCES 247 (D., Walters ed. 1980)Google Scholar; Zielhuis, Biological Monitoring: Recent and Potential Advances Applicable to the Protection of Workers’ Health, in ASSESSMENT OF TOXIC AGENTS AT THE WORKPLACE—ROLES OF AMBIENT AND BIOLOGICAL MONITORING, OSHA, NIOSH, AND COMMISSION OF THE EUROPEAN COMMUNITIES SEMINAR, LUXEMBOURG, December 8-12, 1980Google Scholar. See also Field, Biological Monitoring and Genetic Screening in the Industrial Workplace: A Synopsis and Analysis, 11 LAW, MED. & HEALTH CARE 125 (June 1983) (reporting on 1983 conference on topic).

11 See generally, Cooper, Indicators of Susceptibility to Industrial Chemicals, 15 J. OCCUP. MED. 355 (1973).Google Scholar

12 According to a 1979 article, threshold limit values have been promulgated for fewer than 500 of the more than 50,000 chemicals regularly found in the workplace. Schottenfeld, and Haas, Carcinogens in the Workplace, 29 CA—A CANCER JOURNAL FOR CLINICIANS 144 (1979)CrossRefGoogle Scholar. See also H.E., Stokinger Threshold Limit Values of Airborne Contaminents and Physical Changes Adopted by ACGIHfor 1971, Committee on Threshold Limits, ACGIH, Cincinnati, OH, 1971.Google Scholar But see Upton, Preventive Medicine in the Workplace—Prospects for the 1980s, 23 J. OCCUP. MED. 556 (1981)Google Scholar (citing sources critical of threshold exposure theory).

13 See, e.g., Legator, Approaches to Worker Safety: Recognizing the Sensitive Individual and Genetic Monitoring, 3 ANN. AM. CONF. GOV. IND. HYG. 29 (1982).Google Scholar

14 See Ozonoff, A Survey and Evaluation of Biological Monitoring, Medical Surveillance, and Medical Screening in the Industrial Workplace (paper prepared for the National Science Foundation, Grant No. ISP 8114738. Copy on file at Editorial Office, American Journal of Law & Medicine). See also Underwood, Law and the Crystal Ball: Predicting Behavior with Statistical Inference and Individualized Judgment, 88 YALE L.J. 1408, 1409, 1414 (1979).

15 The Occupational Safety and Health Act of 1970 (OSH Act) imposes a general duty on employers to maintain a working environment free from occupational health hazards, 29 U.S.C. § 654(a)(l) (1976), and requires employers to comply with specific occupational standards issued by the Occupational Health and Safety Administration (OSHA) as well, 29 U.S.C. § 654(a)(2) (1976). In fact, OSHA relies heavily on the voluntary standards developed by industry trade associations when promulgating its own requirements. For example, by 1975 the Department of Labor had incorporated 210 American National Standard Institute standards into its regulations. FEDERAL TRADE COMMISSION, BUREAU OF CONSUMER PROTECTION, STANDARDS AND CERTIFICATION, PROPOSED RULE AND STAFF REPORT 8, at 32 (Dec. 1978).

16 United Steelworkers of America v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980), cert, denied sub nom. Lead Indus. Ass'n v. Donovan, 453 U.S. 913 (1981) (upholding general validity of the lead standard).

17 29 C.F.R. § 1910.1025 (1983).

18 See generally Mahoney, & Kendall, OSHA's Medical Surveillance and Removal Programs: Implications and Validity, 42 U. PITT. L. REV. 779 (1981).Google Scholar

19 29 C.F.R. § 1910.1025(k)(l) (1983). See generally Note, The Validity of Medical Removal Protection in OSHA's Lead Standard, 59 TEX. L. REV. 1461 (1981).

20 29 C.F.R. § 1910.1025(j)(2)(A) (1983).

21 Id. § 1910.1025(j)(2)(B).

22 647 F.2d 1189 (D.C. Cir. 1980).

23 See Hercules, Inc. v. EPA, 598 F.2d 91 (D.C. Cir. 1978).

24 29 C.F.R. § 1910.1025(k)(2) (1983).

25 Lead using or lead producing businesses include, inter alia, the shipbuilding, automobile, paint, leather, glass, textile, paper, agricultural, pesticide, sheet metal and telecommunications industries.

26 647 F.2d 1189, 1272 (D.C. Cir. 1980).

27 An employer can defend against a charge of failure to comply with OSHA by alleging that the statute's requirements are not economically feasible. The Supreme Court held in American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981), however, that the Secretary of Labor need not prove that the benefits of a particular regulation (in that case the cotton-dust standard) actually outweigh its costs to industry. All the Secretary need establish is the general feasibility of a particular standard. The burden then shifts to a challenger to produce substantial evidence of its economic infeasibility. See Note, The Supreme Court, 1979 Term: OSHA Regulation of Toxic Substances, 94 HARV. L. REV. 75, 242-51 (1980), on cost-benefit analyses under OSHA. See also Economic Feasibility of Occupational Safety and Health Standards under OSHA, 14 U.C.D. L. REV. 155 (1980). Meeting that burden is extremely difficult.

An employer may also seek to avoid compliance with an OSHA standard by arguing that it is not technologically feasible. However, courts have held that OSHA can be technologyforcing in that a duty to protect employees exists even though existing protective measures may not yet be advanced enough to do the job. AFL-CIO v. Marshall, 617 F.2d 636, 655 (D.C. Cir. 1979), aff'd in part, vacated in part, and remanded sub norm. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981). So long as technological advance is reasonably foreseeable, a standard will not be invalidated simply because means for achieving it do not happen to be currently available. Society of Plastics Indus, v. OSHA, 509 F.2d 1301 (2d Cir. 197'5), cert, denied sub nom. Firestone Plastics Co. v. United States Dep't of Labor, 421 U.S. 992(1975) (vinyl chloride standard). See generally Note, Regulation of Toxic Substances in the Workplace, 18 Hous. L. REV. 883, 893-96 (1981). Industry compliance, however, may be temporarily excused until the means are at hand.

The issues of economic and technological feasibility are often intertwined, but if an employer can show that it is actually impossible to meet an OSHA requirement, compliance will not be required. Geisler Ganz Corp., [1980] O.S.H. DEC. (CCH) H 24,775 (adequate guards for manually operated mechanized power presses used in jewelry and belt buckle manufacture impossible to design). In impossibility cases the defense will be rejected unless no alternative protective measures exist. See, e.g., Perlite of Houston, Inc., 3 EMPL. SAFETY & HEALTH GUIDE (CCH) ¶ 25,464 (1981) (guards for skylight were not used though available; even if compliance is not fully possible, as much protection as possible must be provided); and F.H. Lawson Co., [1980] O.S.H. DEC. (CCH) ¶ 24,277 (employer did not attempt to devise machine guards or to alter production process).

If employers can show that compliance with an OSHA requirement would create a greater hazard than non-compliance, they also need not observe the standard. Thus, in Ralston Purina Co., 3 EMPL. SAFETY & HEALTH GUIDE (CCH) U 25,444 (1981), a pet food manufacturer was excused from using acoustical wall tiles specified by the Secretary of Labor for noise abatement because they would be hard to keep clean and thus would harbor salmonella organisms, which could contaminate the product. See also Donovan v. Royal Logging Co., 645 F.2d 822 (9th Cir. 1981) (construction industry seat belt requirement not applicable to loggers because of greater hazard posed by debris falling onto trucks).

When management can prove that a safety violation stemmed from idiosyncratic employee action which “contravened company policy and practice,” it will have a good defense to a charge that it violated OSHA's mandates. Mineral Indus, v. Occupational Safety, 639 F.2d 1289, 1293 (5th Cir. 1981). The responsibility for securing employee compliance with safety procedures rests with the employer, however, and merely reprimanding workers who habitually fail to follow safety requirements will not insulate management from liability. Loomis Int'l, Inc., 3 EMPL. SAFETY & HEALTH GUIDE (CCH) f 25,435 (1981). See also Wallace Roofing Co., [1980] O.S.H. DEC. (CCH) 11 24,515, holding that an employer cannot allow a worker to set his own standard of care. See also Rooney, Nature and Scope of the Employer's Duty to Secure from His Employees Compliance with the Occupational Safety and Health Act, 19 S. TEX. L.J. 631 (1978).Google Scholar Only when employee safety violations could not reasonably be anticipated despite management's good faith attempts to enforce them will the defense be successful. Brennan v. OSHRC, 501 F.2d 1196 (7th Cir. 1974) (employee whose job did not expose him to danger did not have to be specially trained in safety procedures); Houston Sys. Mfg. Co., 3 EMP. SAFETY & HEALTH GUIDE (CCH) H 25,466 (1981) (employer could rely on assumption that experienced foreman's operation of crane would conform to safety procedures). Even though an employer may raise any or all of these defenses to a non-compliance complaint, according to a recent law review note, “the employer seldom wins a battle.” Comment, Employer Duties and Defenses to OSHA Violations, 16 U. RICH. L. REV. 485, 499 (1982).Google Scholar

28 Jeter v. St. Regis Paper Co., 507 F.2d 973 (5th Cir. 1975); Byrd v. Fieldcrest Mills, 496 F.2d 1323 (4th Cir. 1974); Russell v. Bartley, 494 F.2d 334 (6th Cir. 1974).

29 29 U.S.C. § 653(b)(4) (1976).

30 Sheahan, The Employer's Criminal Liability Under OSHA, 15 CRIM. L. BULL. 322 (1979).Google Scholar See also Belin, Cowan, Kristovich, & Dominiquez, Criminal Enforcement of California's Occupational Health Laws: A Preliminary Analysis of Occupational Carcinogens Control Act Violations, 8 AJ. CRIM. L. 43 (1980)Google Scholar (regarding state legislation).

31 See E., BROWN ROCKEFELLER MEDICINE MEN: MEDICINE AND CAPITALISM IN AMERICA (1979)Google Scholar (in the early 1900's industry supported scientific research, medical education and hospital construction in its own self-interest to create a healthier workforce).

32 A. Robbins, Current Trends in Occupational Health and Hygiene (paper delivered at seminar on Assessment of Toxic Agents in the Workplace—Roles of Ambient and Biological Monitoring, Luxembourg, Dec. 1980).

33 Katz, & Hight, The Economics of Unemployment Insurance: A Symposium, 30 INDUS. & LAB. REL. REV. 431 (1977).CrossRefGoogle Scholar

34 See generally Hamilton, Corporations Battle to Cut High Cost of Employee Health Insurance, Washington Post, Aug. 21, 1983, at F1, col. 6Google Scholar; Lublin, Moves to Cut Health-Care Benefits Meet Stiff Opposition From Unions, Wall St. J., Oct. 26, 1983, at 31, col. 4.Google Scholar

35 Congress decreased the attractiveness of health expenditures somewhat in the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. No. 97-248, 96 Stat. 324, however, and more restrictive tax measures involving the deductability of health insurance premiums and medical expenses are predicted for upcoming legislative terms.

36 Lefton, Business Aims to Trim Health Costs, Am. Med. News, Nov. 18, 1983, at 1, col. 1.Google Scholar

37 If the employer investment in employee “wellness” goes beyond mere detection and removal policy, the employer may provide health care to its employees directly through a company-run health maintenance organization such as the Kaiser-Permanente Health Care Program, which has delivered medical services to employees of the Kaiser Aluminum Corporation and others for almost half a century. Alternatively, the employer may aggressively promote an outside prepaid plan as the most efficient, and least expensive, health insurance for its workers. See generally J., FALKSON HMOS AND THE POLITICS OF HEALTH SYSTEM REFORM (1980).CrossRefGoogle Scholar The latest corporate trend is away from traditional third party coverage for worker health costs and toward either direct provision of health services to employees or contracts with “preferred provider organizations” (PPOs) that guarantee to deliver care at (presumably cheaper) fixed prices. For a discussion of preferred provider orgnizations, see Competitive Market Spawning PPOs, Am. Med. News, May 7, 1982, at 19, col. 1. Many physicians view this trend with alarm. American Association of Pediatrics president Glenn Austin warned his fellow physicians at the 1982 spring session of the Academy that “there is a real threat of corporate medicine taking over under the guise of competition. We could end up all owing our souls to the company store.” Corporate Medicine Take-Over Is Feared, Internal Med. News, May 15-31, 1982, at 1, col. 2. On the impact of corporate dominance on physician autonomy, see P., STARR THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE 421–499 (1983)Google Scholar.

38 Health and safety issues have long been considered “required” subjects for collective bargaining under the National Labor Relations Act, 29 U.S.C. §§ 151-169 (1976 & Supp. V 1981). See NLRB v. Gulf Power Co., 384 F.2d 822, 825 (5th Cir. 1967), which so construes § 158(d) of the Act.

39 The lead standard provides that if an employer voluntarily removes an employee from lead exposure, it must provide the same medical removal protection benefits that it would provide if the removal were mandatory. 29 C.F.R. § l9l0.1025(k)(2)(vii) (1983). 40 L. Lave & E. Callison, An Economic View of Biological Monitoring in the Workplace, (EEC-OSHA NIOSH Conference Paper Dec. 1980).

41 For a theoretical model analyzing when a profit-maximizing employer will voluntarily adopt risk-oriented screening processes, see McGarity, & Schroeder, Risk-Oriented Employment Screening, 59 TEX. L. REV. 999, 1013–1021 (1981).Google Scholar

42 See Damme, Controlling Environmental Mutagens: Through Market Incentives or State Action?, in GENETICS AND THE LAW II 381 (A., Milunsky & G., Annas eds. 1980)CrossRefGoogle Scholar; see also Note, Occupationally Induced Cancer Susceptibility: Regulating the Risk, 96 HARV. L. REV. 697, 708 (1983) (arguing that neither employers nor employees should control risk-assessment and removal decisions and suggesting that “only the government can design a program that would appropriately balance the interests involved“).

43 Amendments to C.F.R. § 1910, 48 FED. REG. 51,086 (1983).

44 See, e.g., Investigation by Congress of Remodeling of OSHA Urged by Industrial Union Group, 12 OCCUP. SAFETY & HEALTH REP. 404 (Oct. 21, 1982).

45 See generally, Fitzpatrick, Recent Product Liability and Regulatory Developments Affecting Trade Association Sponsored Health and Environmental Effects Research, 3 Toxic SUBST. J. 299 (1982)Google Scholar.

46 29 C.F.R. §§ 1910, 1910.1017 (1983).

47 Executive Order 12,291, 3 C.F.R. 127 (1982), exemplifies the Reagan administration's strict cost/benefit approach to government regulation. Section 2(b) of the order provides: “Regulatory action shall not be undertaken unless the potential benefits to society for the regulation outweigh the potential costs ….“

48 See infra discussion in text accompanying notes 107-13.

49 Such hiring policies may run a foul of such statutory provisions as the Vocational Rehabilitation Act of 1973, 29 U.S.C. §§ 706, 791, 793-94 (1976 & Supp. V 1981), or Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)-(z) (1976), as discussed infra in text accompanying notes 116-64. See also Hogan, and Bernacki, Developing fob-Related Preplacement Medical Examinations, 23 J. OCCUP. MED. 469 (1981).CrossRefGoogle Scholar

50 The strength of a particular industry's ability to lobby different levels of government may determine its attitude toward state and local regulation. If an industry is well organized and influential at the state level, or is particularly regionalized, it may fare better by helping to fashion local health and safety regulation than by lobbying Congress or OSHA. Conversely, if the industry is relatively powerless at the local level but has national clout, its best strategy might be to attempt to manipulate regulatory compromise on the federal level. See Goozner, The Battle Over Chemical Labeling, N.Y. Times, Sept. 12, 1982, at 8, col. 1Google Scholar, reporting on the Chemical Manufacturers Association's fight for federal regulations more favorable to the chemical industry than the tougher laws now on the books in nine states and several cities. Cf. Professor Paul W. MacAvoy's discussion of the pharmaceutical industry's motives for seeking federal Food and Drug Administration packaging regulations for over-the-counter drugs in the wake of the Tylenol poisonings, N.Y. Times, Nov. 21, 1982, § 3, at F3.

51 Although OSHA precludes states from formulating or enforcing standards “relating to any occupational safety or health issue regulated by OSHA if the state's plan has not been federally approved,” 29 U.S.C. § 667 (1976), it is not clear exactly what an “occupational safety or health issue” is. Approximately 40% of the states enforce toxic chemical standards under federally approved plans. See generally Brown, State Plans under the Occupational Safety and Health Act of 1970, 38 LAW & CONTEMP. PROBS. 745 (1974)CrossRefGoogle Scholar; Note, The Occupational Safety and Health Act of 1970: State Plans and the General Duty Clause, 34 OHIO ST. L.J. 599 (1973). In addition, see Marfin, & Marraro, Environmental and Occupational Health Regulation and the New Federalism: Preliminary Observations, 23 IDEA 135 (1982).Google Scholar

52 In some jurisdictions occupational disease claims are not covered by worker's compensation on the theory that they do not constitute “accidental” injury, nor are they among certain specified diseases for which compensation will be given. See, e.g., Niles v. Marine Colloids, Inc., 249 A.2d 277 (Me. 1967) (Pulmonary emphysema was neither a listed occupational disease nor an accidental injury, thus exclusivity provisions of worker's compensation did not bar action at law). On the general inadequacy of current compensation systems for occupational disease, see Note, Compensating Victims of Occupational Disease, 93 HARV. L. REV. 916 (1980).

53 See generally 2A A., LARSON supra note 5, at § 65.11 (1982)CrossRefGoogle Scholar. But see Note, Exceptions to the Exclusive Remedy Requirement of Workers’ Compensation Statutes, 96 HARV. L. REV. 1641 (1983).

54 On the point that voluntary industry standards almost inevitably become “mandatory” through public and private reliance, see Goidich, The Role of Voluntary Safety Standards in Product Liability Litigation: Evidence or Cause in Fact?, 49 INS. COUNSEL J. 320, 322-23 (1982).Google Scholar

55 See, e.g., Mandolidis v. Elkins Indus., 246 S.E.2d 907 (W. Va. 1978) (wrongful death action at law permitted against employer who committed intentional tort or engaged in willful, wanton or reckless misconduct). A conscious decision to avoid knowledge by one in position to avert harm can constitute willful and wanton behavior. Mathes v. Robinson, 205 Kan. 402, 469 P.2d 259 (1970). See RESTATEMENT (SECOND) OF TORTS § 500 (1965).

56 See Holden, Looking At Genes in the Workplace, 217 SCIENCE 336 (1982)CrossRefGoogle Scholar; Severo, 59 Top U.S. Companies Plan Genetic Screening, N.Y. Times, June 23, 1982, at A12, col. 4.Google Scholar

57 In cases where workers have thus “intentionally” been injured by their employer, the employer is not permitted to claim the injury was “accidental” and thus covered by the applicable workers’ compensation act. See generally 2A A. LARSON, supra note 5, at § 68. See also Comment, Worker's Compensation Law: Employers May No Longer Assert Immunity from Civil Liability for Intentional Torts Committed Against Employees, 8 U. DAYTON L. REV. 365 (1983)Google Scholar; Comment, supra note 7. But see Johns-Manville Prods. Corp. v. Superior Ct. of Contra Costa County, 27 Cal. 3d 465, 612 P.2d 948, 165 Cal. Rptr. 858 (1980) (holding in effect that even though a California employer intentionally misrepresents workplace safety, employees are limited to the workers’ compensation scheme for their recovery). If, however, the employer fraudulently misrepresents the safety of the working environment to the state and to physicians treating the employees, the employees could recover at law for any aggravation resulting from the second misrepresentation. See Comment, An Analysis of Johns-Manville Products Corp. v. Superior Court Recovery by an Employee Against an Employer for Fraudulent Conduct, 33 HASTINGS L.J. 1227 (1982).Google Scholar For an extremely critical discussion of the worker's compensation remedy as applied to latent occupational disease, see Kutchins, The Most Exclusive Remedy is No Remedy at All: Workers’ Compensation Coverage for Occupational Diseases, 32 LAB. L.J. 212 (1981).Google Scholar See also Solomons, Workers’ Compensation for Occupational Disease Victims: Federal Standards and Threshold Problems, 41 ALB. L. REV. 195 (1977)Google Scholar.

58 548 F. Supp. 357 (E.D. Pa. 1982).

59 On the dual capacity doctrine which permits actions at law against employers wearing more than one hat, see Ghiardi, Dual Capacity—An Exception to the Exclusivity of Workers’ Compensation, 33 FED'N INS. COUNSEL. Q. 215 (1983)Google Scholar; Kelly, Workmen's Compensation and Employer Suability: The Dual Capacity Doctrine, 5 ST. MARY's LJ. 818 (1974)Google Scholar. See also Reed v. The Yaka, 373 U.S. 410 (1963).

60 189 U.S. 468, 470 (1903).

61 60 F.2d 737, 740 (2d Cir. 1932).

62 On the point that America's managers face strong economic pressure to overemphasize short-term profit at the expense of long-term gain, see N., ASHFORD CRISIS IN THE WORKPLACE § 7.4.7, at 345 (1976).Google Scholar

63 29 U.S.C. §§ 651-678 (1976 & Supp. III 1979).

64 See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1088-89 (5th Cir. 1973) (which established the ability of asbestosis victims to recover on a failure-to-warn products liability theory); see also Farber, Clwmical Carcinogenesis, 305 NEW ENG. J. MED. 1379 (1981).CrossRefGoogle Scholar

65 On the language of standard general liability policies, see Mansfield, Asbestos: The Cases and the Insurance Problem, 15 FORUM 860, 875 (1980).Google Scholar See also Peeples, Asbestos Litigation and Theories of Insurance Coverage, 32 FED‘N INS. COUNSEL Q. 323 (1982).Google Scholar

66 See Annot., 1 A.L.R. 4th 117 (1979) for cases concerned with when injury “occurs” for insurance purposes where latent diseases are involved. See also Oshinsky, Insurance Coverage for Asbestos Tort Liability Litigation, 5 J. PROD. LIAB. 69 (1982)Google Scholar; Oshinsky, Comprehensive General Liability Insurance: Trigger and Scope of Coverage in Long-Term Exposure Cases, 17 FORUM 1035 (1982)Google Scholar; Note, The Calculus of Insurer Liability in Asbestos-Related Disease Litigation: Manifestation + Injurious Exposure = Continuous Trigger, 23 B.C.L. REV. 1141 (1982); Comment, Liability Insurance for Insidious Disease: Who Picks Up the Tab?, 48 FORDHAM L. REV. 657 (1980).Google Scholar

67 633 F.2d 1212 (6th Cir. 1980), cert, denied, 454 U.S. 1109 (1981), reh'g denied, 455 U.S. 1009 (1982).

68 See Note, Insurer Liability in the Asbestos Disease Context—Application of the Reasonable Expectations Doctrine, 27 S.D.L. REV. 239 (1982). On application of the reasonable expectations doctrine in insurance contracts generally, see Abraham, fudge-Made Law and Judge-Made Insurance: Honoring the Reasonable Expectations of the Insured, 67 VA. L. REV. 1151 (1981).CrossRefGoogle Scholar

69 The Fifth Circuit adopted the same approach in Porter v. American Optical Corp., 641 F.2d 1128 (1981), a products liability case involving the manufacturer of respiratory masks worn by asbestos workers.

70 682 F.2d 12 (1st Cir. 1982), cert, denied, 103 S. Ct. 1279 (1983).

71 Id. at 25. For a products liability case adopting the manifestation theory where ingestion of synthetic estrogen was concerned, see American Motorists Ins. Co. v. E. R. Squibb & Sons, Inc., 95 Misc. 2d 222, 406 N.Y.S.2d 658 (1978).

72 667 F.2d 1034 (D.C. Cir. 1981), cert, denied, 455 U.S. 1007, reh'g denied, 456 U.S. 951 (1982).

73 Id. at 1041.

74 Id.

75 Id. at 1047-49.

76 See generally, Mansfield, Asbestos: The Cases and the Insurance Problem, 15 FORUM 860 (1980)Google Scholar; McGovern, The Status of Statutes of Limitations and Statutes of Repose in Product Liability Actions: Present and Future, 16 FORUM 416 (1981)Google Scholar; see also Peters, Occupational Carcinogenesis and Statutes of Limitation: Resolving Relevant Policy Goals, 10 ENVTL. L. 113 (1979)Google Scholar; Comment, Developments in the Law—Statutes of Limitations, 63 HARV. L. REV. 1177 (1950).CrossRefGoogle Scholar

77 Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 349 (1944).

78 See, e.g., Carroll v. International Paper Co., 143 So. 275 (La. 1935) (where employee suffers cancer-causing burn in industrial accident, statute of limitations held to run from date of burn rather than diagnosis of cancer).

79 See, e.g., Braswell v. Flintkote Mines, 723 F.2d 527 (7th Cir. 1983) (employees’ cause of action under Indiana law for asbestosis accrued at time of wrongful act',, rib later than most recent exposure to asbestos); Steinhardt v. Johris-Manville Corp., 430 N.E.2d 1297 (N.Y. 1981) (employee's cause of action for asbestos injury accrued no later than date of last exposure); Zimmerer v. General Electric Co., 126 F. Supp. 690 (D. Conn. 1954) (berylliosis victim's occupational disease claim accrued on date of last exposure to beryllium dust).

80 See, e.g., Riley v. Industrial Comm'n, 24 Ariz. App. 98, 536 P.2d 219 (1975) (manifestation of plaintiff's lung disease triggered running of statute for worker's compensation purposes). On the widespread adoption of discovery type statutes of limitations in products liability actions involving long-term exposure, see Annot., 91 A.L.R. 3d 991 (1979) and Ahnot., 11 A.L.R. 2d 277 (1950).

81 See, e.g., Olsen v. Bell Telephone Laboratories, Inc., 388 Mass. 171, 455 N.E.2d 609 (1983); Burd v. New Jersey Telephone Co., 76 N.J. 284, 386 A.2d 1310 (1978).

82 337 U.S. 163 (1949).

83 Id. at 169.

84 Id. at 170.

85 Id.

86 The Supreme Court refused to go a step further in a recent medical malpractice case arising under the Federal Tort Claims Act. In United States v. Kubrick, 444 U.S. 111 (1979), the plaintiff urged the Court to rule that the statutory period does not begin running until an injured party learns that his injury was in fact caused by the defendant's negligence. By analogy, a worker suffering from occupational illness would argue that his cause of action would accrue only when he reasonably should have discovered the causal connection between employment and disease, even though the disease may have manifested itself much earlier. Noting that “statutes of limitations often make it impossible to enforce what were otherwise perfectly valid claims,” id. at 125, the Supreme Court declined to hold that Congress intended for “ ‘accrual’ of a claim … [to] await awareness by the plaintiff that his injury was negligently inflicted,” id. at 123.

87 3 A., LARSON WORKMEN's COMPENSATION § 78.41 (1976).Google Scholar Cf. Comment, Statutes of Limitations in Occupational Disease Cases: Is Locke v. Johns-Mansville a Viable Alternative to the Discovery Rule?, 39 WASH. & LEE L. REV. 263 (1982).Google Scholar

88 Note, Workmen's Compensation: Occupational Carcinogenesis and Statutes of Limitation, 32 OKLA. L. REV. 712 (1979).

89 A recent Department of Labor study, I. SELIKOFF, REPORT TO THE U.S. DEPT. OF LABOR, DISABILITY COMPENSATION FOR ASBESTOS-ASSOCIATED DISEASES IN THE U.S. (1982), quantifies the economic loss occasioned by the approximately 90,000 “excess deaths” per year from asbestos-associated cancer. See also Schelling, The Life You Save May Be Your Own, in PROBLEMS IN PUBLIC EXPENDITURE ANALYSIS 127, 133–141 (S., Chase ed. 1968).Google Scholar

90 Note, Compensating Victims of Occupational Disease, 93 HARV. L. REV. 916 (1980).

91 ASS't SEC'Y FOR POLICY, EVALUATION AND RESEARCH, U.S. DEPT. OF LABOR, AN INTERIM REPORT TO CONGRESS ON OCCUPATIONAL DISEASES 61 (1980) shows that in 1974, 53% of occupational disease victims received some form of social security disability payment.

92 In 1974 the majority of those disabled by occupational disease were supported by their fellow wage-earners and taxpayers. Sixteen percent received public welfare, approximately half obtained social security disability benefits and the remainder depended on pensions and/or veterans’ benefits. U.S. DEPARTMENT OF LABOR, AN INTERIM REPORT TO CONGRESS ON OCCUPATIONAL DISEASE 61 (1980).

93 The more frightening possibilities are illustrated by the following quote from HARSANYI, & HUTTON, GENETIC PROPHECY: THE DOUBLE HELIX 117 (1981)Google Scholar:

The discovery of better and more accurate markers (genetic markers, that is) foreshadows the speedy expansion of industrial screening. Soon we may find ourselves caught in an ever-tightening spiral: finding markers for more subtle problems, discovering larger numbers of susceptible workers, labelling more and more different types of environments as hazardous. It is not inconceivable that, through screening, industry will become the modern counterpart of Diogenes as it searches for a perfect worker.

94 On the difficulty of proving proximate cause in cancer cases, see Note, Tort Actions for Cancer: Deterrence, Compensation, and Environmental Carcinogenesis, 90 YALE L.J. 840 (1981) (proposing that if a cancer victim can show the defendant exposed her to threshold limits of a carcinogen appearing on a legislatively-approved list of carcinogenic substances, the burden of proof on proximate cause should shift to the defendant). See also Comment, Judicial Attitudes Towards Legal and Scientific Proof of Cancer Causation, 3 COLUM. J. ENVTL. L. 344 (1977).Google Scholar

On the difficulty of showing causation in occupational disease claims for worker's compensation, see N., ASHFORD CRISIS IN THE WORKPLACE: OCCUPATIONAL DISEASE AND INJURY, 411–416 (1976)Google Scholar. See generally Levine, Legal Questions Regarding the Causation of Occupational Disease, 26 LAB. L.J. 88 (1975)Google Scholar; Robblee, The Dark Side of Workers’ Compensation: Burdens and Benefits in Occupational Disease Coverage, 2 INDUS. REL. L.J. 596, 607 (1978)Google Scholar; Note, Establishing Causation in Chemical Exposure Cases: The Precursor Symptoms Theory, 35 RUTGERS L. REV. 163 (1982).

95 P., BARTH & A., HUNT WORKERS’ COMPENSATION AND WORK-RELATED ILLNESSES AND DISEASES 164 (1980).Google Scholar

96 Employers have traditionally won two-thirds of all worker's compensation claims alleging occupational illness because causation is often so difficult to prove. Compilation by Division of State Workers’ Compensation Standards, Office of Workers Compensation Program, U.S. Dept. of Labor (1981), reprinted in Smith & Channon, supra note 3.

97 Some worker's compensation statutes employ the “full responsibility” rule, whereby the employer at the time of initial disability is liable for the full economic consequences, regardless of other contributing causes. See, e.g., Perry v. Workers’ Comp. App. Bd., 66 Cal. App. 3d 887, 136 Cal. Rptr. 309 (1977) (a person suffering from pre-existing cardiac disease who is disabled by an inoperable hernia condition proximately arising out of employment is entitled to compensation as long as disability exists even though a normal person would have been able to return to work in six weeks).

Other statutes allocate the economic consequences of disability in proportion to the degree of disease aggravation caused by the workplace. See, e.g, Comment, Worker's Compensation—You Take (45% of) My Breath Away, 4 CAMPBELL L. REV. 107 (1981)Google Scholar (analyzing Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458 (1981), a case arising under the North Carolina Workers’ Compensation Act).

When the disability involves successive employers or insurance carriers the employee can recover full compensation, but when a prior or subsequent contributing cause was personal rather than employment-related, the employee must absorb an appropriate portion of the economic loss. See generally 2 A., LARSON supra note 5, at § 59.20 (1981)CrossRefGoogle Scholar.

98 On association of elevated blood-lead levels with demographic and socioeconomic factors, see Mahaffey, Annest, Roberts, & Murphy, National Estimates of Blood Lead Levels: United States, 1976-1980, 307 NEW ENG. J. MED. 573 (1982)CrossRefGoogle Scholar.

99 The Asbestos Compensation Coalition, a group of asbestos claim defendants, reported that “it costs the defendant companies an average of $ 150,000 to put $28,000 in the hands of a successful claimant….” N.Y. Times, Aug. 10, 1982 at D2, col. 1.

100 With the erosion of the worker's compensation bar to tort recovery, inaccurate results generated by an employer's failure to observe quality control standards (as distinguished from those generated by the deficiencies in biological monitoring technology) could be grounds for tort recovery. Even if an effort to safeguard worker health through biological monitoring is undertaken gratuitously, once embarked upon, it must be performed with due care. See Dunson v. Frielander Realty, 369 So. 2d 792 (Ala. 1979); see also RESTATEMENT (SECOND) OF TORTS §323 (1965).

101 29 C.F.R. § 1910.1025 (1983).

102 Ironically, however, the success of certain lawsuits against unions alleging negligence with respect to health and safety enforcement contract obligations may discourage further union involvement in this area. Helton v. Hake, 564 S.W.2d 313 (Mo. App. 1978), cert, denied, 439 U.S. 959 (1978). See also Drapkin, & Davis, Health and Safety Provisions in Union Contracts: Power or Liability?, 65 MINN. L. REV. 635 (1981)Google Scholar; Samuel, AFL-CIO Industrial Union Department Memorandum on Avoiding Union Liability in Safety, Health Lawsuits, reprinted in Occ. SAFETY & HEALTH RFTR., Feb. 4, 1982, at 725.Google Scholar

103 Rowe, Are Routine Spine Films on Workers in Industry Cost-or Risk-Benefit Effective?, 24 J. Occ. MED. 41 (1982)Google Scholar. Cf Bross, & Natarajan, Leukemia from Low-Level Radiation: Identification of Susceptible Children, 287 NEW ENG. J. MED. 107 (1972).CrossRefGoogle Scholar

104 See references cited supra note 57.

105 29 C.F.R. § 1910.96(b) (1983).

106 See supra discussion in text accompanying notes 57-62. For a criticism of short-run managerial philosophies in general, see K., ANDREWS THE CONCEPT OF CORPORATE STRATEGY (1980)Google Scholar; P., DRUCKER TOWARD THE NEXT ECONOMICS, AND OTHER ESSAYS (1981).Google Scholar

107 See generally Atherly, The Willis Cunningham Lecture: Human Rights Versus Occupational Medicine (delivered at Queens University, Kingston, Ontario March 4, 1982)Google Scholar; Note, Exclusionary Employment Practices in Hazardous Industries: Protection or Discrimination?, 5 COLUM. J. ENVTL. L. 97 (1978).

108 As the president of the United Steelworkers of America has testified:

It is kind of a human equation, perhaps, but I think it is one that most of us would identify with. If we were confronted as the bread winner of a family, of tolerating a health hazard, perhaps, in order to continue to provide for our families, most of us, absent from some other way to do it, and the high unemployment economy, there is very little other opportunity for the person in the lead plant to go out and get other employment—faced with that combination of circumstances, I think most of us would put up with the continued health hazard.

43 Fed. Reg. 54,442 (1978).

109 Blumstein, & Zubkoff, Public Choice in Health: Problems, Politics and Perspectives on Formulating National Health Policy, 4 J. HEALTH POL'Y, POL. & L. 382 (1979).CrossRefGoogle Scholar

110 See generally McGarity, & Schroeder, Risk-Oriented Employment Screens, 59 TEX. L. REV. 999 (1981)Google Scholar; Rothstein, Employee Selection Based on Susceptibility to Occupational Illness, 81 MICH. L. REV. 1379 (1983).CrossRefGoogle Scholar See also Alexander, Brennan, Maida, and Walker, The Value of Preplacement Medical Examinations for Non-Hazardous Light Duty Work, 19 J. OCCUP. MED. 107 (1977)CrossRefGoogle Scholar; Alexander, Maida, & Walker, The Validity of Preemployment Medical Evaluations, 17 J. OCCUP. MED. 687 (1975)Google Scholar. Cf. Williamson, Eighteen Years Experience Without Pre-Employment Examinations, 13 J. OCCUP. MED. 465 (1971).CrossRefGoogle Scholar

111 On the questionable use of pre-employment x-rays by railroads to decrease the incidence of compensation claims, protect workers, and reduce the number of lost work days, see Rocky, Fantel, & Omenn, Discretionary Aspects of Pre-employment Screening: Low Back X-Ray Examinations in the Railroad Industry, 5 AM. J.L & MED. 197 (1979).CrossRefGoogle Scholar

112 If the applicable worker's compensation statute utilizes the full-responsibility rule, the employer will be liable for all the economic consequences of any future disability related to the working environment. 2 A., LARSON supra note 5, at § 59.10 (1981).CrossRefGoogle Scholar Under these statutes, “industry takes the employee as it finds him.” Perry v. Workers’ Compensation Appeals Bd., 66 Cal. App. 3d 887, 888, 136 Cal. Rptr. 309, 310 (1977). Under other statutes, assuming a causal relationship can be established, the employer will bear at least proportional financial responsibility for disability resulting from occupational illness. 2 A., LARSON supra note 5, at § 59.20 (1981).CrossRefGoogle Scholar Although employees may under most statutes elect to forego worker's compensation coverage and rely on the tort system for recovery for industrial disease, the statutes almost universally prohibit them from waiving the right to any recovery for occupational illness at all. 4 A., LARSON supra note 5, at § 87.71 (1981).Google Scholar

113 See infra text accompanying notes 116-79.

114 211 N.Y. 125, 126, 105 N.E. 92, 93 (1914).

115 Cf. Cort v. Bristol-Meyers Co., 385 Mass. 300, 431 N.E.2d 908 (1982) (holding that employees refusing to answer mental health questionnaire have no cause of action for wrongful termination of employment).

116 29 U.S.C. § 793 (1976 & Supp. V 1981).

117 29 U.S.C. § 794 (1976 & Supp. V 1981).

118 41 C.F.R. § 60-741.2 (1983).

119 Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975) (quoting 29 C.F.R. 1607 (1983)).

120 41 C.F.R. § 60-741.6(b), (c) (1983). Cf. Bentivegna v. U.S. Dep't of Labor, 694 F.2d 619 (9th Cir. 1982) (diabetic building repairer with uncontrolled blood sugar levels rendering him prone to serious infection and absenteeism unlawfully discharged from employment; no direct connection established between controlled blood sugar and safe performance of job). See also Hogan, & Bernacki, Developing Job-Related Preplacement Medical Examinations, 23 J. Occur. MED. 469 (1981).CrossRefGoogle ScholarPubMed

121 The Rehabilitation Act regulations require that job qualifications be consistent with "safe job performance," 29 C.F.R. § 32.14 (1983) (indicating that employee health is a legitimate management consideration), but are silent on the precise issue of threatened future health impairment due to individual susceptibility to workplace toxins.

122 471 F. Supp. 119, 122 (E.D. Mo. 1979).

123 497 F. Supp. 1088, 1104 (D. Hawaii 1980).

124 694 F.2d 619, 623 n.3 (9th Cir. 1982) (emphasis added).

125 See compilation of 37 statutes prohibiting discrimination against the handicapped set forth in Rockey, Fantel & Omenn,supra note 111, at 213 n.66 (1979). See also Rothstein, Law and Policy in Screening for Susceptible Workers (paper prepared for 1983 conference on Biological Monitoring and Genetic Screening in the Industrial Workplace, sponsored by American Society of Law and Medicine and Boston University Schools of Law, Medicine and Public Health, at 85).

126 90 Wisc. 2d 408, 280 N.W.2d 142 (1979).

127 32 Cal. 3d 603, 651 P.2d 1151, 186 Cal. Rptr. 345 (1982).

128 42 U.S.C. § 2000(e) (1976 & Supp. V 1981).

129 The discussion in this section focuses on the issue of sex discrimination, but employment discrimination for race-based health reasons raises Title VII issues as well. See discussion of the Air Force Academy's former policy of excluding sickle cell trait carriers, who are predominantly black, on the theory that high altitude could trigger a disease crisis in 24 ENV't 26, 33-34 (1982).

130 5 See generally Crowell, & Copus, Safety and Equality at Odds: OSHA and Title VII Clash over Health Hazards in the Workplace, 2 IND. REL. L.J. 567 (1978)Google Scholar; Mahoney, & Kendall, OSHA's Medical Surveillance and Removal Programs: Implications and Validity, 42 V. PITT. L. REV. 779 (1981)Google Scholar; Stillman, The Law in Conflict: Accommodating Equal Employment and Occupational Health Obligations, 21 J. Occ. MED. 599 (1979).Google Scholar

Approximately twelve million women are exposed to harmful chemicals every day on the job, and increased knowledge about chemicals and other hazards related to reproduction has exacerbated concerns about protecting the health of workers’ offspring. For a provocative discussion of how local governments have attempted to prevent inherited health defect, see Damme, Controlling Genetic Disease Through Law, 15 U.C.D. L. REV. 801 (1982).Google Scholar

131 42 U.S.C. § 2000(e) (1976 & Supp. V 1981).

132 92 Stat. 2076 (1978) (codified as amended at 42 U.S.C. § 2000(e) 0976, & Supp. V 1981)).

133 42 U.S.C. § 2000(e)-2(a)(l) (1976).

134 See Howard, Hazardous Substances in the Workplace: Implications for the Employment Rights of Women, 129 U. PA. L. REV. 798, 810 (1981).CrossRefGoogle Scholar

135 Fetal safety may be threatened by a multitude of chemicals. The most obvious are those that harm the fetus during pregnancy. Potentially harmful effects occurring during pregnancy are classified in three categories: fetotoxins, teratogens and transplacental carcinogens. See Williams, Firing the Woman to Protect the Fetus: The Reconciliation of Fetal, Protection with Employment Opportunity Goals under Title VII, 69 GEO. L.J. 641, 655 (1981).Google Scholar A feitptoxin (e.g., carbon monoxide) affects the fetus in the same way it would the mother, and a teratogen (e.g., thalidomide) directly affects the dividing cells of the growipg fetus causing functional defects, such as limb deformities. Transplacental carcinogens (e.g., DES) work by crossing the placenta during pregnancy and causing damage to the fetus after birth. The effects of thesg agents rarely occur singly; in most cases, if a substance is fefotoxic, it can have teratogenic and mutagenic consequences as well.

The effects of hazardous substances on offspring are not limited ,to those generated, from exposure during pregnancy, however. Certain physical and chemical agents, termed mutagens, act prior tc conception and can thus affect offspring through either parent. These substances damage the germ cells (sperm or ova) and result in chromosomal abnormalities inheritable by the fetus. Such agents (e.g., radiation) can produce congenital defects, deformities, and other developmental problems in the offspring of an exposed parent. Id. at 656. Mutagens are thus potentially even more hazardous than those agents affecting the particular fetus through maternal exposure, since mutagens may survive to affect future generations.

OSHA has warned that lead has mutagenic as well as fetotoxic and teratogenic effects. Lead can seriously damage reproductive function in both males and females, and can cause genetic aberations in germ cells before conception. Lead can also pass through the placental barrier at concentrations equivalent to the mother's blood lead level. OSHA has established that blood lead levels of 50-60 ug/100 g in children can cause significant neurological impairments, and states that a pregnant woman's level should be maintained below 30 ug/100 g to minimize fetal harm. However, medical surveillance requirements permit a worker with a blood lead level at or below 40 ug/100g to remain in lead-contaminated working environments. 29 C.F.R. § 1910.1025 (1983).

136 Williams, supra note 135.

137 Id. at 648.

138 Id.

139 When alleging disparate treatment, plaintiff may proceed on either a covert or an overt theory of discriminatory intent. Under the covert disparate treatment rationale, plaintiff alleges that an employer is treating her (albeit covertly) differently from other employees only because of her sex. In such a case, plaintiff must prove the employer's discriminatory motive. The Supreme Court held in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), that this intent may be established by showing that plaintiff: 1) belongs to a protected class; 2) applied for and was qualified for a job for which the employer was seeking applicants; 3) despite her qualifications, she was rejected; and 4) that after her rejection, the position remained open and the employer continued to seek applicants with her qualifications. Id. at 802. If plaintiff successfully establishes a prima facie case of covert sex discrimination under the McDonnell Douglas proof scheme, defendant can rebut by articulating a legitimate, non-discriminatory reason to support the exclusionary practice. Unless this reason is shown to be merely pretextual, the plaintiff has not presented a case of intentional discrimination under the statute. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). Plaintiffs may also challenge a company's employment policies under an overt discriminatory treatment rationale, where intent to discriminate is clear.

140 42 U.S.C. § 2000e-2(e)(l) (1976 & Supp. V 1981).

141 Furnish, Prenatal Exposure to Fetally Toxic Work Environments: The Dilemma of the 1978 Pregnancy Amendment to Title VII of the Civil Rights Act of 1964, 66 IOWA L. REV. 63 (1980).Google Scholar

142 Dothard v. Rawlinson, 433 U.S. 321, 333 (1977).

143 Howard, supra note 134, at 822.

144 Id. at 823.

145 See, e.g., Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969).

146 Furnish, supra note 141, at 95.

147 Bunvell v. Eastern Air Lines, Inc., 458 F. Supp. 474 (E.D. Va. 1978), aff'd in part and rev'd in part per curiam, 633 F.2d 361 (4th Cir. 1980), cert, denied, 450 U.S. 965 (1981); In re Nat'l Airlines, Inc., 434 F. Supp. 249 (S.D. Fla. 1977); Maclennan v. American Airlines, Inc., 440 F. Supp. 466, 471 (E.D. Va. 1977).

148 Otherwise, under the Pregnancy Amendment, distinctions based on child-bearing ability are considered gender-based discrimination.

149 Howard, supra note 134, at 828.

150 See Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971).

151 Id. at 431.

152 Robinson v. Lorillard Corp., 444 F:2d 791, 798 (4th Cir.), cert, denied, 404 U.S. 1006 (1971) (emphasis added).

153 Dothard v. Rawlinson, 433 U.S. 321, 332 n.14 (1977) (emphasis added).

154 Id. at 335.

155 Howard, supra note 134, at 832. Cf. Zuniga v. Kleburg County Hosp., 692 F.2d 986, 992 n.10 (5th Cir. 1982).

156 See Samuelson, Employment Rights of Women in the Toxic Workplace, 65 CALIF. L. REV. 1113, 1132-33 (1977).CrossRefGoogle Scholar Note that an employer's liability to defective children is not confined to the worker's compensation schedule, and is therefore potentially devastating, because the employer is sued in tort by the child rather than by the employee. Finneran, Title VII and Restrictions on Employment of Fertile Women, 31 LAB. L J. 223 (1980).Google Scholar

157 See, e.g., Howard, supra note 134, at 813. See also Hayes v. Shelby Mem. Hosp., 546 F. Supp. 259, 264 (N.D. Ala. 1982).

158 697 F.2d 1172 (4th Cir. 1982). See Note, Life with Mother: The Fourth Circuit Reconciles Title VII and Fetal Vulnerability in Wright v. Olin Corp., 34 ALA. L. REV. 327 (1983). Cf. Hayes v. Shelby Mem. Hosp., 546 F. Supp. 259 (N.D. Ala. 1982) (earlier federal district court case holding in suit brought by x-ray technician fired when she became pregnant that avoidance of possible future liability to fetus does not constitute business necessity).

159 697 F.2d at 1189.

160 Id. Cf. Spurlock v. United Airlines, 475 F.2d 216 (10th Cir. 1972) (potential danger to passengers justifies business necessity of minimum flight time requirement for flight officers).

161 697 F.2d at 1189.

162 Id.

163 An employer could screen women monthly and, if a woman became pregnant, either transfer her or effect a temporary layoff. However, one could argue that the employee's right to privacy would be impermissibly invaded with such constant intrusion into areas of personal concern. In addition, this type of program would be ineffective to protect against mutagens acting prior to conception and substances detrimentally affecting the fetus in its earliest stages, when the woman may not know she is pregnant.

164 697 F.2d at 1191.

165 29 U.S.C. § 621-634 (1976 & Supp. II 1978). See generally Schuck, The Graying of Civil Rights Law: The Age Discrimination Act of 1975, 89 YALE L.J. 27 (1979)CrossRefGoogle Scholar; Note, The Cost of Growing Old: Business Necessity and the Age Discrimination in Employment Act, 88 YALE L.J. 565 (1979).

166 29 U.S.C. §§ 141-87 (1976 & Supp. V 1981). See also Fair Labor Standards Act, 29 U.S.C. §§ 215(a), 216(a)-(b) (1976 & Supp. V 1981) (prohibiting discrimination against employees who assert their rights under the act).

167 Although the statutory constraints on personnel policies discussed supra in text accompanying notes 116-64 limit management's right to make employment decisions based solely on worker characteristics deemed worthy of special protection, other legislation prohibits placing or retaining individuals exhibiting certain precursors of disease for work in specified environments or at specified tasks. For example, truck drivers must, as mandated by the Interstate Commerce Commission, pass a physical examination before they may operate their rigs on interstate highways, 49 C.F.R. §391.43 (1983), and OSHA's lead standard prohibits assignment of employees with elevated blood-lead levels to lead contaminated working environments. 29 C.F.R. § 1910.1025(j)(3)(l)(B) (1983). The ICC requirement is designed to protect the public at large but the lead standard is intended to safeguard the individual employee.

168 RESTATEMENT (SECOND) OF AGENCY § 442 (1958). See also Hinrichs v. Tran quilaire Hosp., 352 So. 2d 1130 (Ala. 1977) (employee allegedly discharged for refusing to continue falsifying medical records at employer's request denied relief). “Until recent years, it has been firmly established that, when a private sector employer hires an employee to work for an indefinite period of time … the employer can terminate the employee at any time, without legal liability, for good cause, bad cause, or no reason at all in the absence of an express statutory prohibition.” Olsen, Wrongful Discharge Claims Raised by At Will Employees: A New Legal Concern for Employers, 32 LAB. L.J. 265, 266 (1981)Google Scholar; Cf. Blades, Employment at Willvs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 COLUM. L. REV. 1404 (1967).CrossRefGoogle Scholar

Unless public policy would be seriously undermined, courts usually decline to intervene in private sector personnel decisions. See Palmateer v. International Harvester Co., 85 111. 2d 124, 421 N.E.2d 876 (1981); Note, Contracts—Termination of Employment At Will—Public Policy May Modify Employer's Right to Discharge, 14 RUTGERS L. REV. 624 (1960).

Some commentators have argued that such a rule is unjust, see, e.g., Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 HARV. L. REV. 1816 (1980), and the employment at will doctrine has generally come under increasing scholarly attack. See, e.g., Individual Rights in the Workplace: The Employment-At-Will Issue, 16 U. MICH. J.L. REF. 199 (1983); Comment, Wrongful Termination of Employees at Will: The California Trend, 78 Nw. U.L. REV. 259 (1983).Google Scholar For a spirited defense of the doctrine, see Power, A Defense of the Employment at Will Rule, 27 ST. LOUIS U.L.J. 881 (1983).Google Scholar

169 See Howard v. Dorr Woolen Co., 120 N.H. 295,414 A.2d 1273 (1980) (Supreme Court of New Hampshire refused to find that it was against public policy for an employer to let an employee go because he was suffering fom angina). See also Rodriguez v. Civil Service Comm'n, 582 S.W.2d 354 (Mo. App. 1979) (employers may freely discharge employees unable to work, even when their injuries are work-related); Koppers Co. and Oil, Chemical and Atomic Workers Int'l Union, 81-2 LAB. ARB. AWARDS (CCH) fl 8602 (111. Sept. 16, 1981) (discharge of an epileptic did not violate the collective bargaining agreement where there was evidence that the worker could not perform his job without danger to himself or others); Cort v. Bristol-Myers Co., 385 Mass. 300, 431 N.E.2d 908 (1982) (employees fired because of their refusal to answer questions concerning their medical histories were held to have no cause of action for wrongful termination).

If an employer goes too far, however, and intentionally inflicts emotional harm through the manner of discharge, the employee may be able to secure a remedy in tort. See Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 COLUM. L. Rev. 42, 68 (1982).CrossRefGoogle Scholar

170 See U.S. BUREAU OF CENSUS, DEP't OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 392 (1979) (table 644).

171 See, e.g., Pstragowski v. Metropolitan Life Ins. Co., 553 F.2d 1 (1st Cir. 1977); Firestone Textile Co. v. Meadows, 51 U.S.L.W. 2331 (Ky. Ct. App. Nov. 12, 1982) (employee discharged in retaliation for filing worker's compensation claim); Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315 (1976); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973). But see Note, Master and Servant—Retaliatory Discharge—An “At-Will” Employee May Be Fired Despite Motives Which Violate Stated Public Policy, 14 ST. MARY's L.J. 443 (1983).

172 Murphy v. American Home Products Corp., 51 U.S.L.W. 2616 (N.Y. Mar. 29, 1983). Cf. Hermann, & Sor, Property Rights in One's Job: The Case for Limiting Employment-at-Will, 24 ARIZ. L. REV. 763 (1982)Google Scholar (giving a history of the employment at will doctrine and proposing legislation providing procedures for protecting employees’ interests by requiring good cause for dismissal); Comment, Weiner v. McGraw-Hill, Inc.: Is Employment in New York Still At Will?, 3 PACE L. REV. 245 (1983)Google Scholar (written prior to the Murphy decision); Brockmeyer v. Dun & Bradstreet, 52 U.S.L.W. 2058 (Wise. July 1, 1983) (Wisconsin Supreme Court recognized a narrow public policy exception to the employment at will doctrine, but refused to impose a duty to terminate employment only in good faith); Gates v. Life of Montana Ins. Co., 52 U.S.L.W. 2108 (Mont. Aug. 5, 1983) (Montana Supreme Court allowed tort recovery, including punitive damages, for breach of an implied covenant of fair dealing in the context of employment at will). See also Peirce, Mann, & Roberts, Employee Termination at Will: A Principled Approach, 28 VILL. L. REV. 1 (1982)Google Scholar; and Note, Employment at Will: An Analysis and Critique of the Judicial Role, 68 IOWA L. REV. 787 (1983).

173 Cf. City of New York v. Feinberg, 67 A.D.2d 653, 412 N.Y.S.2d 612 (1979), order off ‘d, 48 N.Y.2d 1017, 402 N.E.2d 141, 425 N.Y.S.2d 802 (1980) (employer validly denied worker with arthritic back ailment promotion to position requiring heavy lifting).

174 See, e.g., the inorganic arsenic standard, 29 C.F.R. § 1910.1018(c)-(n) (1983).

175 29 C.F.R. § 1910.1017(k)(5) (1983) (vinyl chloride standard). Cf. the lead standard which contains mandatory medical removal provisions and requires seniority protection and benefits continuation for up to eighteen months, 29 C.F.R. § 1910.1025(k)(2) (1983). This is because body burdens of lead can be reduced by eliminating exposure. Thus, most workers identified through biological monitoring to be at an increased risk for developing lead poisoning and removed from contaminated work environments will eventually be able to return to their jobs.

176 See Note, Compensating Victims of Occupational Disease, 93 HARV. L. REV. 916, 921-25 (1980). However, discharged employees will be entitled to unemployment compensation and any applicable union benefits.

177 See BUREAU OF CENSUS, U.S. DEPT. OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES: 1980 at 429 (table).

178 See generally S., WILLISTON A TREATISE ON THE LAW OF CONTRACTS §§ 1020–1029 (3d ed. 1967).Google Scholar Professor Summers has argued that the law governing just cause dismissals pursuant to collective bargaining agreements ought to be extended to cover employment at will. Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 VA. L. REV. 481 (1976).CrossRefGoogle Scholar

179 See, e.g., Civil Service Reform Act of 1978 § 204(a), 5 U.S.C. § 7503 (Supp. V 1981). Although little more than a third of the workforce is entitled to civil service protection or covered by collective bargaining agreements, a majority of the workers exposed to toxic substances on the job work in manufacturing industries which tend to be highly unionized.

180 The fact that removal policies may also protect the company's financial position is ordinarily considered irrelevant. See cases cited supra note 169; see also Moore v. Home Ins. Co., 601 F.2d 1071 (9th Cir. 1979) (court refused to permit an employee terminated after thirteen years (seven and one-half months prior to substantial vesting of pension rights) to recover for wrongful discharge on the grounds of ERISA's policy favoring vesting of pensions); Sardis Luggage Co. v. NLRB, 234 F.2d 190 (5th Cir. 1956) (discharge of employee because he was a poor worker's compensation risk found to be permissible).

181 When Manville attempted to enforce a rule prohibiting smoking in a Texas asbestos plant and providing disciplinary sanctions culminating in discharge for violators, the union protested that the new policy violated its collective bargaining agreement. The Fifth Circuit upheld the union, notwithstanding uncontroverted evidence that asbestos workers who smoke are ninety-two times more likely to die of lung cancer than those who do not, and notwithstanding OSHA's imposition of a general duty on employers to provide a safe working environment. Johns-Manville Sales Corp. v. International Ass'n of Machinists, 621 F.2d 756 (5th Cir. 1980).

182 See 2A A., LARSON supra note 5, at § 87.71 (1981).Google Scholar