Fetal Protection Policies in the Workplace: Continuing Controversy in Light of Johnson Controls

Abstract

Despite the Supreme Court ruling in the Johnson Controls case that fetal protection policies that exclude women from workplaces deemed hazardous to the fetus are in clear violation of the 1978 Pregnancy Discrimination Amendment, the issue of fetal health remains on the policy agenda. This article summarizes the rationale behind fetal protection policies and the current scientific evidence over workplace hazards. It also discusses the disparate court response to these policies before Johnson Controls and the confusing regulatory framework. Finally, it makes a case for including consideration of the paternal contribution to fetal injury in the workplace and calls for a balanced approach to accommodate both women's rights to employment and society's interest in healthy children.