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Column One

Protecting Fetuses at Mom's Job

In California, a woman cannot sue her employer when her unborn child is injured at her workplace. The Legislature will examine a bill that would change that.

May 06, 1991|DENISE GELLENE, TIMES STAFF WRITER

It is a pregnant woman's worst nightmare.

Linda Bell Freytes, a clerk at a Macy's department store in San Francisco, felt sharp abdominal pain after a morning coffee break. The nurse at Macy's attributed the pain to indigestion; in fact, Freytes, seven months pregnant, had a ruptured uterus.


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Ignoring Freytes' pleas for medical help, the nurse waited 50 minutes to call for an ambulance. Freytes' son was born with severe brain damage, resulting from the delay. He died at age 2.

Freytes sued Macy's on behalf of her disabled son, but in a case with important implications for all pregnant women, she lost. A state Court of Appeal agreed that Macy's was negligent. But the court said that since the sick baby was not a Macy's employee, his survivors could collect nothing.

The ruling means a California employer has no liability for any fetal injury. Though it initially attracted little attention outside legal circles, the 1989 court decision is now at the center of a growing debate in California over the limits of an employer's responsibilities.

It is a debate that is fast becoming one of the most important workplace issues of the 1990s, and one that comes at a time when society is trying to sort out its responsibility to the unborn.

The stakes cannot be measured in dollars alone. The emotional cost is incalculable. "Every day we had to face (the fact) that our son would die," said Freytes, 34.

The Freytes case has prompted legislation in California--believed to be the first of its kind in the nation--that would permit suits to be brought against a parent's employer on behalf of children with fetal injuries. The bill--which gets its first committee hearing on Tuesday--reaches far beyond the Freytes case to cover fetal injuries in the workplace caused by chemicals, radiation, even the AIDS virus.

California business vigorously opposes the bill. A fearful California Manufacturers Assn. put the proposal high on its "Dirty Dozen" list of anti-business bills and predicted that its passage would force factories to move elsewhere.

The proposed law makes employers especially nervous in the wake of a U.S. Supreme Court decision striking down an important defense against fetal-injury suits.

The case involved Johnson Controls, a Milwaukee car-battery manufacturer. In 1982, Johnson Controls adopted a "fetal-protection" policy that barred fertile women from factory jobs working with lead, a fetal poison. On March 20, the Supreme Court said companies could not block women from dangerous jobs in order to protect a fetus from possible injury.

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