Damned if you do, damned if you don’t: “Fetal Injury at Work”

In UAW v. Johnson Controls, 499 U.S. 187 (1991), the Supreme Court held that sex discrimination laws prohibited employers from making decisions about fetal safety that took the choice to work in dangerous conditions away from pregnant women. Still, even though the Supreme Court held that “Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents,” and the Supreme Court rejected the idea that civil liability could be an issue for such employers, state courts are still holding employers liable when women claim their unborn children suffered injury while they were working. Michael Starr and Christine Wilson look at the issue in the October 29 National Law Journal.

One Comment

  • I can’t read the article from that link.

    Could the distinction be one of disclosure? I.e., are the more-recent state court plaintiffs arguing that, while the Johnson Controls plaintiffs knew the risks of their job, the later state cases involve circumstances where the fetal risks were not adequately disclosed to the pregnant workers?