Workers take employers to court over birth defects

Workplace hazards worry employees, their children

By Stephanie Armour

Feb 26, 2002


The first time Heather Matthews saw her baby, she knew something had gone terribly wrong. Logan couldn't hear or see. His ears appeared slanted. And his digestive system didn't work right. The milk he swallowed went to his lungs instead of his stomach, causing him to throw up anything he ate.

Matthews doesn't believe Logan's birth defects were merely an act of fate. Her husband worked at an IBM semiconductor plant in Essex Junction, Vt., where she believes exposure to solvents damaged his sperm and, ultimately, killed their son. She filed a lawsuit in 2000; no trial date has been set.

IBM, which denies any liability for health problems, is not the only employer defending itself from such claims. More firms are being sued by employees who blame miscarriages or birth defects on workplace hazards. And it's not just workers taking action. In a growing number of cases, children are filing lawsuits against their parents' companies, claiming that exposure to occupational toxins injured them in the womb.

State workers' compensation laws may bar employees from suing their companies for injuries, but some courts have upheld the rights of their offspring to sue.

That means employers are worrying about how to protect themselves from plaintiffs who may not yet be conceived. It also means the issue is moving to center stage just as more women of childbearing age enter the labor force.

More than half of women in the USA work outside the home, and three-quarters of women of reproductive age are in the workforce. An estimated 1 million working women in the USA may be pregnant at any one time. Studies have found that workers in a host of jobs -- including hairdressers, flight attendants, construction workers, nurses, veterinarians and production employees -- may face prenatal health risks. Mounting research shows men also are exposed to job hazards that can cause chromosomal damage and injury to the unborn.

"This is a huge issue that will continue to grow in importance as more women move into jobs traditionally the domain of men," says Tim Fisher at the American Society of Safety Engineers in Des Plaines, Ill. "It makes good business sense for employers to look at the issue. If they don't, they're risking losing employees and opening themselves up to litigation."

But protecting a fetus from occupational hazards isn't as easy as removing pregnant women from specific jobs. Companies that have taken that approach have been hit with discrimination lawsuits -- and lost. The U.S. Supreme Court ruled in 1991 that battery maker Johnson Controls' practice of restricting women from certain jobs on the basis that lead exposure could harm the fetus amounted to sex discrimination.

That leaves employers in a tough spot, some legal experts say. Because men are also exposed to toxins that can harm the fetus, health experts say, the focus should be on making the workplace safe for all -- not just mothers.

'Is the employer responsible?'

"If the employer warns the mother, and if she goes in and says she has a right to do this job, and the fetus is exposed, is the employer responsible?" asks Eugene Brodsky, a San Francisco lawyer who represented a child who sued over birth defects. "The fetus didn't agree to be at risk. These are questions that will have to be addressed."

Some of those questions are being addressed in the courts.

In a case against arts and crafts retailer Michaels Stores, Naomi Snyder says she was exposed to carbon monoxide fumes from a propane-powered floor buffer. More than a dozen people were taken to the hospital.

Snyder says she wasn't worried about her own health. She was worried about her unborn child.

Snyder's daughter was born with cerebral palsy and other health problems that Snyder attributes to the exposure. The California Supreme Court in 1997 ruled in the case that children could sue their mothers' employer for fetal injuries. The lawsuit was sent to a trial court but was settled for an undisclosed sum.

A Michaels spokesman declined to comment on the case.

"As a mom, you feel guilty," says Snyder, who says her daughter will have lifelong health problems. "There have to be protections in the workplace for the unborn."

But protecting the unborn can be difficult because much is unknown. Although the National Institute for Occupational Safety and Health (NIOSH) reports that more than 1,000 workplace chemicals have effects on the reproductive system of animals, most have never been studied in humans.

It's not just chemicals that concern researchers. Heat, heavy lifting, prolonged standing, stress and even the disrupted sleep patterns of frequent travelers or night workers may pose risks to the fetus, experts say.

The need for more knowledge means prenatal health and the workplace are fast becoming topics of study. Columbia University is studying pregnant women who worked or lived near the World Trade Center to see whether airborne toxins affect the health and development of their unborn children. And health and safety experts are going into manufacturing plants to discuss reproductive hazards, an issue rarely addressed.

It can be difficult to prove any link between a job and fetal health. About 2% to 3% of babies are born with major birth defects, according to NIOSH. In most cases, the cause is never known. About 10% of children in the USA have some form of developmental disability.

'Hard to track down the link'

"Anyone who's experienced this really wants to find blame. Most people need something to blame it on, whether it's true or not," says Steven Schrader, chief of the reproductive health assessment section at NIOSH. "It's really hard to track down the link."

In the IBM case, company officials reject claims that chemicals in their workplace caused health problems. Officials say they put a high emphasis on worker safety. All employees are made aware of the chemicals they're using, they say, and training and certification programs are required in areas where chemicals are used.

"IBM feels deep compassion and sympathy for those employees and their children who are suffering from severe illnesses," IBM spokeswoman Laura Keeton says. "But it is important to remember there's no scientific evidence linking their health issues to our . . . work environments. The lawsuits filed against IBM are without merit."

But lawyers say they're representing more than 50 children of employees. Some children have no arms or legs, they say. Some have skin that blisters spontaneously, they say, while others have no reproductive organs or more than one. Two birth-defect cases are expected to go to trial this year, and another case was settled out of court for an undisclosed sum.

"This is a very, very serious problem, and it's the tip of the iceberg," says William DeProspo, one of the lawyers representing the families and other IBM employees who say workplace toxins caused their health problems.

In the case of Heather Matthews, whose son was born with digestive and other birth defects, family members say they weren't adequately informed of the risks. Logan died at home in 1998 at 6 months old.

"He was a very delightful child, a very happy baby," says Matthews, 27. Her husband, Adam, died in a 1999 car crash while she was pregnant with their fourth child. "Right from the beginning, I was worried an outside factor caused this."

Researchers are trying to get a better understanding of potential risks to the reproductive system and to a developing fetus.

They've learned that health care workers can be exposed to cancer-treatment drugs that have been linked to infertility, miscarriage, low birth weight and birth defects. Veterinarians and those who work with animals risk exposure to toxoplasmosis, which can cause such problems as developmental disorders and miscarriages. Construction workers can be exposed to lead, which has been linked to infertility, low birth weights and developmental disorders.

But as knowledge builds, experts say, employers must take the next step of making employees aware of the risks. Some do, but most don't have reproductive health and safety programs.

"Employers shy away from dealing with these issues," says Dan Markiewicz, an environmental health and safety consultant in Toledo, Ohio. "If an employee asks, 'Is it safe for me to have a baby?' they refer them to a doctor. No one pays attention to what the risks are."

That's why Shari Desser, 45, of Poughkeepsie, N.Y., says she and her daughter are taking legal action: to make more workers aware of potential risks.

She worked at IBM's semiconductor plant in East Fishkill, N.Y., from 1978 to 1993. Desser says the chemicals were so heavy she could smell them. She blames that exposure on the health problems of her daughter, Holly, now 18.

Born with spina bifida, Holly needed surgery as a baby because her spine was exposed. Holly also has bladder problems and must catheterize herself daily. A shunt in her head relieves cranial pressure.

IBM officials deny their plant caused the health problems, and they say all workers are told about possible risks.

"I was always wondering if those chemicals had an effect," Shari says. "I wasn't aware how many other people had had problems. I hope this will stop companies from hiding things from employees."


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