Some feminists contend that cases such as Ramirez' show layoffs are not the answer. "We should be talking about voluntary transfers to non-hazardous jobs," said attorney Patricia Chiu of San Francisco's Employment Law Center.
To be sure, many employers offer pregnant employees temporary reassignments to safe jobs. The California Nurses Assn. says hospitals usually shift nursing assignments to accommodate pregnant women. At Southern California Gas Co., pregnant clerical workers are moved on request from video display terminals. Until a recent study proved otherwise, electromagnetic radiation emitted by VDTs had been linked to a high rate of miscarriage.
At Pacific Bell, a supervisor coaxed pregnant telephone installer Nora Bertotti down from 25-foot-high telephone poles with an offer of a desk job at the same pay. Bertotti wanted to keep climbing, but came to appreciate the change. "It worried me to think what might happen to the baby if I fell," she said. "Besides, my tool belt was getting tight."
Employers say that if no non-hazardous jobs are available, they put the pregnant worker on medical leave which may qualify her for state disability payments. Douglas Aircraft Co. in Long Beach has such a policy, and according to a spokesman, the company has "had good success with it."
But with the economy stagnant, there are signs that at least some employers are becoming less accommodating of pregnant employees.
Barbara Ott of 9 to 5, a Cleveland workers' advocacy group, said complaints of all forms of pregnancy discrimination to its hot line have climbed in the past year. While it is illegal to discriminate against pregnant workers, such charges are difficult to prove because an employer rarely cites pregnancy as a reason for dismissal, Ott says.
When a fetal toxin is involved, women are even more reluctant to challenge a dismissal. "What woman is going to fight for a job that could damage her fetus?" asks one attorney who frequently represents workers.
Last fall, it looked as though California might become the first state to define an employer's obligations to protect a fetus. Wilson had proposed that the state Department of Industrial Relations decide when fetal hazard existed, and determine whether an employer had taken proper steps to safeguard pregnant workers. As it turns out, that is not a simple task.
On a scientific level, there is not always agreement on which substances are hazardous. Of the 50,000 or so chemicals found in the nation's factories and offices, 5,000 have been tested for fetal toxicity. Little is known about the rest.
Existing regulations, intended to protect workers, don't always protect fetuses. Take lead, a metal needed in battery-making that can damage the brain of a fetus and lead to learning deficits and delayed behavioral development. The safe exposure level for adult workers, set by the federal Occupational Safety and Health Administration, is three times higher than what the federal Centers for Disease Control considers safe for fetuses.
In other cases, conditions once thought risky have been found safe. The ubiquitous video display terminal became a suspected reproductive hazard after a cluster of woman at the Toronto Star suffered miscarriages. But last year, a government study declared that the electromagnetic radiation from VDTs was harmless.
The matter is complicated by the fact that many substances that harm fetuses may also cause damage to a man's reproductive system that later results in birth defects.
The uncertainty has raised the anxiety level of both employees and employers.
According to the Department of Health Services, pregnant women have been laid off from work that exposed them to ammonia and formaldehyde, chemicals that pose no special risks to fetuses. "Your eyes would burn and your skin would fall off, literally, before a fetus would be harmed," Rosenberg said.
Frantic when a supervisor at Kaiser Permanente-Woodland Hills refused to assign her to low radiation tasks, pregnant X-ray technician Linda Valadez refused to work for one month. Her sick-out eventually won her the transfer, and in a later grievance hearing, she was awarded back pay.
While Valadez was entitled to the transfer under the hospital's contract with her union, records show she had little to worry about. She was never exposed to the amount of radiation associated with congenital defects and cancer. Nonetheless, Valadez worries that one-year-old Daniel might develop an illness related to his prenatal exposure. Whenever her child becomes sick, she said, "There is that doubt, always a little fear."
There are indications that a final "fetal protection" bill would not try to identify possible hazards, leaving the final determination in each case up to the legal process. According to those involved in the discussions, the primary focus is on limits of an employer's liability for injury.
