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A growing number of industrial chemicals have been identified as reproductive hazards that may present a significantly greater risk to the developing fetus than to the sperm or egg. Many employers have responded to this risk by excluding fertile women from the toxic workplace through so-called ufetal protection policies." Because these policies have cost the jobs of women only, the two circuit courts to face the issue have consid? ered the problem exclusively in the context of Title VII of the Civil Rights Act of 1964. In their effort to find a solution, the courts have misconstrued Title VII to allow current occupational health standards, which are based on the physical vulnerabilities of men, to dictate the availability of jobs for women. The courts' exclusive focus on Title VII guarantees a flawed solution to the problem of fetal hazards. Employers' discriminatory response has called attention to a real toxic substances problem. Because fetal protec? tion policies mark the point where sex discrimination and toxic dangers intersect, the correct legal response can come only through examining the legislation Congress has enacted in response to both problems: Title VII and the Toxic Substances Control Act (TSCA). Title VII requires that the opportunity to get a job and to be protected on that job be extended equally to men and women. TSCA requires that the level of workplace protection from toxins be high enough to protect employees' offspring, as well as employees themselves, from unreasonable risks. Read together, the two statutes protect women by prohibiting policies that exclude them from the workplace, while providing an effective means of limiting the produc? tion and use of fetal toxins and stimulating the development of safer substances.

Getting beyond Discrimination: A Regulatory Solution to the Problem of Fetal Hazards in the Workplace