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The US Supreme Court, back in 1991, is to blame for this one.

In response to eight pregnant workers in their lead-acid battery plant having documented blood lead levels exceeding a value deemed by OSHA to be “critical” for those [women] planning to have a family, in 1982 Johnson Controls implemented a fetal protection policy whereby no female, unless documented to be infertile, could work in the battery manufacturing area where high lead exposure was inevitable. The US Supreme Court rejected this policy as in violation of Title VII as amended by the Pregnancy Discrimination Act.

The Court stated:

A word about tort liability and the increased cost of fertile women in the workplace is perhaps necessary. One of the dissenting judges in this case expressed concern about an employer’s tort liability and concluded that liability for a potential injury to a fetus is a social cost that Title VII does not require a company to ignore. 886 F. 2d, at 904-905. It is correct to say that Title VII does not prevent the employer from having a conscience. The statute, however, does prevent sex-specific fetal-protection policies. These two aspects of Title VII do not conflict.

More than 40 States currently recognize a right to recover for a prenatal injury based either on negligence or on wrongful death. See, e. g., Wolfe v. Isbell, 291 Ala. 327, 333-334, 280 So. 2d 758, 763 (1977); Simon v. Mullin, 34 Conn. Supp. 139, 147, 380 A. 2d 1353, 1357 (1977). See also Note, 22 Suffolk U. L. Rev. 747, 754-756, and nn. 54, 57, and 58 (1988) (listing cases). According to Johnson Controls, however, the company complies with the lead standard developed by OSHA and warns its female employees about the damaging effects of lead. It is worth noting that OSHA gave the problem of lead lengthy consideration and concluded that “there is no basis whatsoever for the claim that women of childbearing age should be excluded from the workplace in order to protect the fetus or the course of pregnancy.” 43 Fed. Reg. 52952, 52966 (1978). See also id., at 54354, 54398. Instead, OSHA established a series of mandatory protections which, taken together, “should effectively minimize any risk to the fetus and newborn child.” Id., at 52966. See 29 CFR 1910.125(k)(ii) (1989). Without negligence, it would be difficult for a court to find liability on the part of the employer. If, under general tort principles, Title VII bans sex-specific fetal-protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best.

Although the issue is not before us, the concurrence observes that “it is far from clear that compliance with Title VII will preempt state tort liability.” Post, at 3. The cases relied upon by the concurrence to support its prediction, however, are inapposite. For example, in California Federal S. & L. Assn. v. Guerra, 479 U.S. 272 (1987), we considered a California statute that expanded upon the requirements of the PDA and concluded that the statute was not pre-empted by Title VII because it was not inconsistent with the purposes of the federal statute and did not require an act that was unlawful under Title VII. Id., at 291-292. Here, in contrast, the tort liability that the concurrence fears will punish employers for complying with Title VII’s clear command. When it is impossible for an employer to comply with both state and federal requirements, this Court has ruled that federal law pre-empts that of the States. See, e. g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963).

The concurring opinion is probably correct in its statement that complying with Title VII will not stem tort liability:

On the contrary, a fetal protection policy would be justified under the terms of the statute if, for example, an employer could show that exclusion of women from certain jobs was reasonably necessary to avoid substantial tort liability. Common sense tells us that it is part of the normal operation of business concerns to avoid causing injury to third parties, as well as to employees, if for no other reason than to avoid tort liability and its substantial costs. This possibility of tort liability is not hypothetical; every State currently allows children born alive to recover in tort for prenatal injuries caused by third parties, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 55 p. 368 (5th ed. 1984), and an increasing number of courts have recognized a right to recover even for prenatal injuries caused by torts committed prior to conception, see 3 F. Harper, F. James, & O. Gray, Law of Torts 18.3, pp. 677-678, n. 15 (2d ed. 1986).

The Court dismisses the possibility of tort liability by no more than speculating that if “Title VII bans sex-specific fetal-protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best.” Ante, at 19. Such speculation will be small comfort to employers. First, it is far from clear that compliance with Title VII will pre-empt state tort liability, and the Court offers no support for that proposition. [n.2] Second, although warnings may preclude claims by injured employees, they will not preclude claims by injured children because the general rule is that parents cannot waive causes of action on behalf of their children, and the parents’ negligence will not be imputed to the children. [n.3] Finally, although state tort liability for prenatal injuries generally requires negligence, it will be difficult for employers to determine in advance what will constitute negligence. Compliance with OSHA standards, for example, has been held not to be a defense to state tort or criminal liability. See National Solid Wastes Management Assn. v. Killian, 918 F. 2d 671, 680, n. 9 (CA7 1990) (collecting cases); see also 29 U.S.C. 653(b)(4). Moreover, it is possible that employers will be held strictly liable, if, for example, their manufacturing process is considered “abnormally dangerous.” See Restatement (Second) of Torts 869, comment b (1979).

The case can be found at:

http://www.law.cornell.edu/supct/html/89-1215.ZO.html

As a former law professor once stated in Property II class. “One has to be an idiot to be a landlord in NYC’ you’re damned if you do and damned if you don’t.”

So what’s a landlord to do? Abating lead is a VERY expensive propositon. So is getting sued for a claim that a tenant’s pregnancy complication or her child’s birth defect was caused by the landlord’s lead. [Of course, but for the child’s lead exposure, (s)he would have gone to Harvard Medical School and become a nationally renowned neurosurgeon.]. Getting sued under the Fair Housing Act or NYS’s or NYC’s parallel laws is not good either.

Unfortunately, legal wrangling is akin to playing a good chess game. There are textbook openings and defenses, which if deviated from, will result in a loss. With proper responses, defense counsel can easily take the wind out of the sails of Jamie Katz and Lisa Nocera. Screw up, however, and the plaintiffs will run away with a victory, including large attorney’s fees under the applicable fee-shifting provisions.

Good post VMS. We pass laws that mandate “equality” even if it kills you (or your kids) and the feminists do not bat an eye. Moreover, the Supreme Court dutifully goes along with it. Where are the “activist” judges when we need them? What we have is the death of common sense when we allow the conforming to an ideological position to be more important than life. We were outraged by what the Taliban did to women in order to impose their form of fanatical Islam on the populace but what we are doing is in effect no different (except for degree) because we are allowing feminist ideology to trump the health of children.

This is a thoughtless kneejerk reaction on the part of the blog author… ‘Because it involves a lawsuit, it must be wrong’.

Well, this is the law:
“The federal Fair Housing Act outlaws doing anything to discourage someone from renting an apartment based on family status, whether by steering the potential renter away or by outright refusal to rent. So do state and city human-rights laws.”

If discriminatory renting is against the law, it should be punished by law. If the law says that prospective tenants can choose to live with lead paint (whether or not it has any real health consequences), that’s their right. Owners don’t have the right to make that decision for them.

It sounds like anti-child discrimination in the rent market is fairly widespread. What’s the betting that the lead paint was in a place where children couldn’t reach it, and not a hazard at all?

‘Right to be poisoned’ is an exceptionally dumb title. Here’s why.

“When the tester visited the apartment, workers were painting it, and they told him that if there was any lead paint on the walls, it was under at least 10 other layers and posed no threat, the suit said.”

“Dr. Nocera and Mr. Katz said they were not indifferent to their son’s safety. They offered (…) to repaint the apartment in Park Slope themselves(…) City law, in fact, requires landlords of multifamily houses to abate lead contamination whenever an apartment becomes vacant.”

There’s that pesky law again! Looks like this blog isn’t just against excessive lawyering – it’s against the rule of law and against letting people make their own decisions. Much better if employers or real estate owners make the decisions for them, I suppose.

stuggle,

The evidence of a threat from lead paint is dubious at best. None the less, lead is universally accepted to be a major concern. Thus valid arguments – “under 10 layers of paint” for example – would be swept aside by ignorance in a lawsuit blaming the lead paint for a child’s rejection by MIT. This is a real risk to the landlord.

The rule of law is not a pure good. The criminal law exonerates the guilty and convicts the innocent at a disquieting rates. The civil law almost made vaccines impossible. There actually are those of questionable humanity who prefer getting money from law suits to having children condemned to iron lungs.

This site is not against the rule of law per se, it is against the injustice that comes from the rule of lawyers and ignorance.