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Oil, Chem., & Atomic Workers Int'l Union v. American Cyanamid Co.

Citation: 14 ELR 20806
No. No. 81-1687, 741 F.2d 444/(D.C. Cir., 08/24/1984)

The court holds that American Cynamid's fetus protection policy, giving women in one department the choice between surgical sterilization and transfer or discharge, is not a "hazard" under the general duty clause of the Occupational Safety and Health Act. The court emphasizes that the airborne lead level, which posed the danger to fertile women in the department concerned, is itself apparently not a violation of law; it is as low as economically feasible technology allows. Though the court recognizes that the words of the general duty clause could be read to forbid the sterilization policy, its review of the case law interpreting the relevant words convinces it that the clause applies only to the physical condition of the workplace. The court distinguishes the sterilization policy from the hypothetical presence of a sterilizing chemical in the workplace; the latter would operate directly on employees while they are at work,while the decision to be sterilized pursuant to the policy grows out of economic and social factors which operate primarily outside the workplace. Further, the sterilization policy followed by American Cyanamid is distinguished from a clearly permissible decision to simply exclude fertile women only by the efforts of American Cyanamid to offer help and information to the affected women, and the company should not be penalized for that.

Counsel for Petitioners
George H. Cohen, Robert M. Weinberg, Jeremiah A. Collins
Bredhoff & Kaiser
1000 Connecticut Ave. NW, Washington DC 20036
(202) 833-9340

Counsel for Respondent
Donald L. Morgan, Charles F. Lettow, Mark N. Duvall
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700

Before: BORK and SCALIA, Circuit Judges, and WILLIAMS,* Senior District Judge for the Central District of California.