Fetal injury in the workplace is a growing concern as courts are increasingly holding employers liable for children born with birth defects that result from their mother’s workplace exposure to toxic chemicals or her injury in a workplace accident. Employers engage in illegal sex discrimination when they exclude pregnant or fertile women from working, or from particular jobs, even for the seemingly benevolent reason that the work environment will subject the woman worker’s fetus to injury.

As the U.S. Supreme Court said in its landmark decision of UAW v. Johnson Controls, 299 U.S. 187, 206 (1991), “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,” a choice Congress mandated by its ban on sex discrimination in employment. What was not known when Johnson Controls was decided, however, was whether employers could be liable under state tort law if, complying with federal anti-discrimination law, they allow pregnant women to work and, then, those workers’ babies are born with birth defects due to conditions that their mothers were exposed to on the job. The answer under current law seems to be a resounding “yes.”

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