Vol. 3 No. 10 (October, 1993) pp. 102-104

FOR WHOSE PROTECTION? REPRODUCTIVE HAZARDS AND EXCLUSIONARY POLICIES IN THE UNITED STATES AND BRITAIN by Sally J. Kenney. Ann Arbor: The University of Michigan Press 1992. 375pp. Cloth $49.50. Paper $18.95.

Reviewed by Judith A. Baer, Department of Political Science, Texas A&M University

Although Sally Kenney does not organize her book around its title question, no reader of this outstanding work will miss the answer. Exclusionary policies -- regulations barring women from jobs involving exposure to substances which might harm fetuses -- do not protect women, any more than pre-Title VII legislation prohibiting women from working at night did. Exclusionary policies have not protected any identifiable group of infants or children from prenatal damage. These regulations do not provide much benefit for men -- a significant difference between contemporary exclusionary policies and older "protective" legislation. Exclusionary policies affecting women do allow men to choose between a reasonably good blue-collar job and a relatively hazard- free workplace, instead of having the choice made for them; while men's situation is therefore marginally better than women's, men have no protection from dangerous working conditions. The fact that the real beneficiaries of exclusionary policies are the institutions which create them -- that is, employers -- will not surprise the student of public law, feminist theory, or class politics.

Exclusionary policies protect employers from having to create a safe workplace. The activists who wish feminists would drop the sex discrimination issue because "discussing the justification for exclusion of women distracts attention from the real issue: vulnerability to toxins" (p. 279) have badly confused cause and effect. It is precisely the exclusion of women, and thereby of unborn children, which distracts attention from toxins, because exclusion removes the only victims society is willing to protect.

Kenney's analysis of the only two British cases on exclusionary policies is a fine documentation of the triumph of employer self-interest. In PAGE V. FREIGHT HIRE (1981), a non- pregnant truck driver was fired because she had to transport dimethylformamide, a chemical which may have "embryolethal" effects. In JOHNSTON V. HIGHLAND REGIONAL COUNCIL (1984), a pregnant librarian was fired after her supervisor refused her request to be excused from regular work on video display terminals, which may cause miscarriages. Jacky Page lost; Hazel Johnston won, but only on her claim that her dismissal was unfair, not on her request for reassignment. Thus, "Any evidence that the fetus, or rather a potential fetus, was at risk led the employer to err on the side of caution in PAGE; in JOHNSTON, the employer stubbornly asserted there was no risk, despite some evidence to the contrary" (p. 204.) Employers had similar license in the United States until the Supreme Court's unanimous decision in UAW V. JOHNSON CONTROLS that these policies constituted illegal sex discrimination (1991). Even now, employers in both countries remain free of any obligation to remove hazards to men, women, or unborn children.

One of this book's many virtues is that it delivers even more than it promises. One of its few weaknesses is Kenney's failure to probe the implications of what the book delivers. Her incisive and convincing feminist analysis of exclusionary policies also provides a class analysis, as the preceding paragraphs show. But she does not fully develop the implications of this analysis. Kenney is not insensitive to class issues as shown by her discussion of the way British feminism tends to get swallowed by socialism (pp. 37-41) contains a potentially important contribution to the study of class and gender. However, more attention to the fact that exclusionary policies are as much about employer-employee relations as about male-female relations would have improved the book. So would significant attention to race, an issue which is a necessary component of any social science scholarship. But these omissions do not detract from Kenney's considerable accomplishment. This book is a major contribution to the study of women and the law.

Kenney's analysis amply supports her assumption that gender influences public discourse

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on exclusionary policies more powerfully than class does. Kenney argues that these policies "reflect gendered thinking. Employers and judges often see a woman's childbearing role as superseding her role as breadwinner. They interpret scientific evidence differently when it is about women rather than men. . .They respond to the risk of tort liability resulting from women's exposure but not the same or even greater risk stemming from men's exposure. Finally, supporters of exclusionary policies accept the proposition that if women are different from men, employers can treat them less favorably by excluding them from jobs" (p. 2.)

Kenney might have added that employers and judges in both countries feel free to refer, in sex discrimination cases, to kinds of considerations which rarely or never enter into most issues. The solicitor for Freight Hire who told the Employment Appeal Tribunal that "the decision to have children was not a decision for Page to make, but a decision for her future husband" (p. 195) and the federal district judge in Alabama who said, "the grandfather in me feels that what the hospital did is right" (p. 233) echo Justice Bradley's reference to the "law of the Creator" in his concurrence in BRADWELL V. ILLINOIS (1872, p. 142), supporting Kenney's assertion that the rules in gendered thinking remain different from the convention of ordinary official discourse. Although exclusionary policies were upheld in England and invalidated in the US, and despite the obvious profound differences between American and British institutions and cultures, "the similarities between the reasoning in cases are as revealing as the differences in final outcome" (p. 316.)

The conclusion that gendered thinking dominates decisions about women-only job restrictions may seem unremarkable. What makes the conclusion significant -- not to say ominous -- is the fact that the American cases could have been resolved without reference to gender. Rules excluding all women of childbearing age from certain jobs clearly constitute sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Kenney's claim that "exclusionary cases are hard principally because employers are supposedly treating women differently than men because of real rather than stereotypical differences between the sexes" (p. 60.) gains meaning from the fact that these cases should have been easy. But gendered thinking is so powerful that it trumps even statute and precedent.

The gendered thinking Kenney examines includes both ways of thinking about women and ways of thinking about equality. This book leaves the impression that decisions about exclusionary policies are made by officials who could benefit from a seminar on feminist theory. Judges' "treating the matter as an issue of biological differences obscures the way that social norms... determine how we interpret the 'facts' of biological difference" (p. 58.) Judges failed to understand that exclusionary policies do not exist only because women bear children; they exist because childbearing capacity is socially construed to support conclusions about the respective rights, duties, and priorities of men and women. The false dichotomy between fact and stereotype also permeates American constitutional doctrine, which distinguishes between (acceptable) discrimination based on the former (for example, MICHAEL M V. SUPERIOR COURT OF SONOMA COUNTY) and (unacceptable) discrimination based on the latter (for example, STANTON V. STANTON.) Kenney's analysis thus "exposes the inadequacy of the concept of equality upon which our ideas about discrimination rest." (p. 2.)

Unfortunately, Kenney's discussion of discrimination is weakened by some confusion about the various meanings of the term. She uses it in its pejorative sense of illegitimate or unfair distinction. Thus she is able to write, "many judges and members of tribunals think of discrimination as intentional acts motivated by prejudice.... Since the employers do not seem like bad guys but as people who want to protect babies, how can judges and members of tribunals find them 'guilty' of discrimination? (p. 329)" But exclusionary policies are instances of sex discrimination whatever the motivation behind them; their legitimacy is what has to be decided. Moreover, while this explanation of judicial outlook plausible, Kenney should have supported it, probably with comparisons to the Supreme Court decisions which read intent

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into the concept of illegal discrimination. Such a discussion could have led her toward some of the class analysis which this book needs.

These criticisms, however, do not detract from the original and important contributions which Kenney makes. This book extends the study of women's legislation to new policies which differ radically in both degree and kind from the laws that feminist scholars studied a generation ago. Its combination of feminist theory and comparative law provides a model for future researchers. The book displays an impressive grasp of feminist scholarship, comparative politics, and jurisprudence. No scholar in any of these fields can afford to ignore this study.

REFERENCES

Bradwell V. Illinois, 83 US 130(1872)

International Union, United Auto Workers V. Johnson Controls, Inc., 111 S. CT. 1196 (1991)

Johnston V. Highland Regional Council, Case No. S/1480/84 (1984)

Michael M V. Superior Court of Sonoma County, 450 US 464 (1981)

Page V. Freight Hire, IRLR 13 (EAT) (1981) STANTON V. STANTON, 412 US 7 (1975)