The Easy Way Out

October 16, 1990|By Ellen Goodman

BOSTON — WHEN THE CASE of the lead workers arrived at the Supreme Court it came bearing the weight of social change.

The Johnson Controls case was cast as a test of women's rights versus fetal risks. The court was being asked whether the Milwaukee-based company could bar fertile women from work that might endanger a fetus. Wasn't there a conflict between a woman's right to work and a fetus' right to health?

The case had tapped into the anxious fantasy about a world filled with women whose passion for equality in the workplace pitted them against children. A world in which women's rights as individuals conflicted with their responsibilities as nurturers.

In the courtroom last Wednesday, Johnson Controls was described by its lawyer as the trustworthy caretaker of the next generation. Surely, said Stanley Jaspen, when Congress prohibited discrimination on the basis of gender, it didn't mean to ''require an employer to damage unborn children.''

If Johnson were the friend of the fetus then, by definition, female employees were its enemies. The ''fetal protection policy'' was not only protection from the dangers of lead, but from the feckless irresponsibility of these fertile working women.

I was struck, from the first time I read of this case, by a company policy that assumed every woman was a pregnancy waiting to happen. The life of this policy didn't begin at conception; it began at menses and ended at menopause or sterility.

If infertility was a bona fide job qualification, the women's lawyer warned in court, companies could discriminate against any woman capable of pregnancy. We would be back to the days when a company could legally refuse to hire a woman because she might, sometime, perhaps, maybe get pregnant.

At least 20 million other women working in industries that use chemicals could be affected. That doesn't count the millions of women working on computer chips, or in hospitals, or even on airplanes.

I was also offended by the notion, not so subtly expressed, that women have to be forcibly prevented by the boss from endangering their children. That given a choice, vast numbers would poison the next generation with lead.

To prove their case, the company lawyers called Johnson's earlier policy a failure. Informing women of the risks, they said, wasn't enough. Why, eight women with high lead content had become pregnant, and one bore a hyperactive child. This was the reason to banish every fertile woman.

It doesn't require a cynic or a Justice to redefine such a ''fetal protection policy'' as a ''company protection policy.'' It's less about fear of a damaged child than of that child's lawsuit. If we truly care about the next generation, it makes little sense to single out women in the workplace as ''enemy.''

Time and time again, when something affects the female reproductive system, we find out it affects the male. Lead is one of those things. Why bar a 50-year-old woman from a job and not worry about 30-year-old men?

Time and time again, we discover the workplace is not the only hazardous site. Lead does its worst damage to pre-schoolers nibbling on paint chips from a tenement wall. Does the passion to protect a child stop at the womb or the factory gate?

The real world offers different risks and risk assessments than Johnson Controls. By protecting a possible fetus, you may protect a real woman and her real-life family right out of health insurance, out of the middle class. Even if you protect a fetus from a chemical, you may put it at the mercy of poverty, without prenatal care or nutrition.

Writing thoughtfully about this case in The American Prospect, Brandeis' Deborah Stone asked: ''Why are we collectively ducking our obligations to children and suddenly putting the onus of responsibility for any risk on potential mothers?'' Because it's easier. Because it fits our anxieties.

At Johnson Controls, it was easier to focus on women than on all workers. It was easier to enforce sterility than a clean workplace. And in this moment of deep concern about family, about children, it is also easier to focus on the individual behavior of women than on the need for widespread community support.

The problem is, it doesn't work. The case sets up a false conflict between working women and children, between job protection and fetal protection. The women who went before the Supreme Court are not pleading for the right to endanger a fetus.

The case they bring is part of a larger question that comes now in social change. Will we go back, trying to hold women accountable for the fate of children against every odd and every ill? Or will we begin the hard and honest work of solving these problems together?

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