This comment will argue that Congress did not intend to prohibit statutory accommodation of an individual pregnant employee's right to temporarily transfer from a hazardous work environment as an alternative to discriminatory fetal protection policies. Additionally, this comment argues that the California legislature's fear of pre-emption was premature. The legislature should amend the statute to require compliance by title VII employers in order to conform with public policy articulated in California Federal and to fulfill the original legislative intent. This comment recognizes that both male and female workers have a right to work in a toxin-free environment. There are environments nevertheless, such as strenuous or hazardous workplaces, where one may need to consider that certain toxins have negative effects on the reproductive capabilities of workers. The goal of title VII, equality of employment opportunity, would not be undermined by accommodating a trait unique to women such as pregnancy, through the use of California's mandatory transfer provisions.
In illustration of the necessity of the right to temporary transfer provisions, this comment provides a brief history of employers' use of discriminatory fetal protection policies against pregnant workers. Following is a discussion of the inadequacy of the federal approach to alleviating pregnancy discrimination in the context of hazardous environments, beginning with an examination of title VII as amended by the Pregnancy Discrimination Act and including California's Fair Employment and Housing Commission's disagreement with recent federal case law in this area. The section includes a discussion of enforcement of the Pregnancy Discrimination Act by the Equal Employment Opportunity Commission and Occupational Safety and Health Administration. The section also critiques the bias in the scientific data upon which the federal system relies to justify and analyze employers' use of fetal protection policies. The next section discusses the impact of federal case law on the Fair Employment and Housing Commission's enforcement capabilities. The comment then explores the recent United States Supreme Court decision in California Federal. Following, is an examination of the legislative history of the California statute which provides temporary transfers for pregnant employees in hazardous environments. In light of California Federal, the comment argues that the California legislature was premature in fearing title VII pre-emption. The conclusion asserts that the Pregnancy Discrimination Act and California statute can coexist and argues for the elimination of subsection (e) of CAL. GOV'T CODE § 12945.
Legislators Should not have Feared Title VII Pre-Emption of California's Temporary Transfer Alternative to Discriminatory Fetal Protection Policies, 19 Golden Gate U. L. Rev.