Fetal protection policies are policies that attempt to protect the fetus from workplace hazards. Fetal protection policies, which were adopted by many private sector employers in the 1980s and early 1990s, raised difficult questions about gender equality, employer responsibilities for occupational safety and health, and fetal rights. The U.S. Supreme Court held that these policies violated equal employment laws, and that the bona fide occupational qualification (BFOQ) defense did not apply. In 1991, the U.S. Supreme Court ruled that an employer can't determine if a work environment is too hazardous for a pregnant worker and change her work status solely on the basis of her pregnancy. The pregnant employee and her physician are charged with making such a decision. An employer can only intervene when an employee's pregnancy interferes with her ability to do her job.
Plaintiffs in these cases assert that the defendants have violated Title VII of the Civil Rights Act of 1964, which forbids sex discrimination in employment. In addition, in 1978, Congress passed the Pregnancy Discrimination Act, which prohibits employers from discriminating against pregnant women. The 1978 Pregnancy Discrimination Act forbids sex-specific fetal-protection policies. Many commentators feel that this Act also forbids sex discrimination against women based on their ability to become pregnant, and therefore, applies to women affected by fetal protection policies.
For example, the International Association of Fire Fighters recommends “that pregnant firefighters should not participate in fire suppression, hazardous material and EMS operations from the time pregnancy is confirmed and that pregnant firefighter candidates should defer training. Alternative duty should be identified for pregnant firefighters, preserving rank and wages.
