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Posted on March 11th, 2013, by

In this paper we will consider the case UAW vs Johnson Controls, 499 U.S. 187, 111 S.Ct.1196 (1991), which concern the policy prohibiting women of childbearing age, who work in potentially dangerous conditions in the manufacture of batteries. The Supreme Court stated that “the risk of harm to a pregnant worker or the fetus is not a legal basis for refusing the work of a woman”¯ and stated that: “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. Moreover, the incremental cost of employing members of one sex cannot justify a discriminatory refusal to hire members of that gender.”¯ (Findley et al., 2010)

In this case the optimal solution is that the employer must forewarn the woman about health risks, and get her written consent to such work. In this case the best option would be translated into its more secure and easier work. It is this case shows that maternal health is accomplished by banning or restricting the work, that could be harmful to the health of the mother or to the child. Such a prohibition may be imposed on a general basis or applied to certain types of harmful work. (Hedrick, 1998)
Legal protection of motherhood and health of pregnant women in different countries

In accordance with the Recommendations on Maternity Protection, 1952 (ā„– 95), many countries offer various activities to protect the health of pregnant women and their children, and trying to minimize risks through the reorganization of working time, or to protect a woman from a dangerous or unhealthy work. In some countries (for example, the Netherlands, Panama), the law obliges the employer to organize work in such a way that it does not affect pregnancy. This approach, which answers contemporary occupational health and safety practices, can meet the individual needs of women in appropriate preventive measures and, therefore, is most satisfactory. (Collins, 1992)

More complete maternity care includes prohibition or restriction of work that can be harmful to the health of the mother or child. Such a prohibition may be imposed on a general basis or applied to certain types of harmful work. However, in Mexico women’s work in unhealthy or dangerous conditions are not prohibited, if the necessary measures to protect the health are taken.(Collins, 1992)

However, in Mexico women’s work in unhealthy or dangerous conditions are not prohibited, if are taken the necessary measures for the protection of health. It is not prohibited for women to work in positions of managers, those with a university degree or technical diploma, or the necessary knowledge and experience in implementing the work. But it should be noted that in many countries it is not allowed pregnant women and nursing mothers to carry out “harmful” work “beyond their potential,”¯ “dangerous to their health and their children”¯ or “requiring physical effort, inappropriate for their condition”¯. In some countries there are special lists, which define, sometimes in great detail, the types of activities that are prohibited for pregnant women and nursing mothers (for example, in Austria, Germany). Legislation in some countries specifically prohibits exposure to certain chemicals (for example, benzene), biological agents, lead and radiation. In Japan, working under the ground is prohibited during pregnancy and another within one year after childbirth. In some countries, pregnant workers are not assigned to work outside their place of residence (for example, in Ghana). In Austria it is not allowed to smoke in working places with pregnant women. c

In some countries (for example, in Angola, Bulgaria, Haiti, Germany) from an employer is required to find a suitable job for a pregnant woman, and often the salary must be saved. In the Russian Federation, where the corresponding position is granted to women while she can no longer do her job, her salary is preserved during the time of the new post. In certain cases (for example, in Romania), the difference between the two salaries is paid as social security, what is more preferable because the cost of maternity protection, if possible, should not be borne by individual employers. Also a woman may be moved from her current job, which she doesn’t find dangerous, but which the doctor considers harmful in a particular state of women’s health (in France). In other countries, transfer is possible at the request of the concerned workers (for example, in Canada, Switzerland). When translation is impossible, in some countries, women are guaranteed payment for the disease (for example, in Seychelles), or the maternity leave begins earlier(for example, in Iceland). If there is a disagreement between employer and the worker, the occupational health physician will determine whether there is a medical necessity to change a job and whether the proposed work fits the woman. (Collins, 1992)

Conclusion
In this paper we have addressed the issue of discrimination in the workplace, namely, discrimination against women in pregnancy. It was considered the legal and regulatory framework to protect the rights of pregnant women from discrimination by employers, both in the U.S. and other countries. However, it should be noted that the regulations, which prohibit discrimination and affirms the principles of equality, are necessary but not sufficient conditions. Discrimination in employment will not disappear, even if it is prohibited by law. It is necessary to combine effective enforcement mechanisms of action, affirmative actions, unbiased education, as combination of policies and instruments for its implementation is a prerequisite to combat discrimination in any form.

Elimination of discrimination is an essential prerequisite for people to be able to choose their professional path, develop their talents and abilities, and be rewarded according to their merits and achievements. Discrimination leads to inequality in the labor market and the appearance of unfair advantage, especially against women. The problem of discrimination of women in the workplace and of women during pregnancy is especially acute, as it is in this area women need support from employers and government, to ensure adequate standard of living for themselves and their family. Discrimination also creates stress, lowers morale and motivation to work, affects self-esteem and reinforces prejudices even more. Thus, elimination of discrimination in employment is strategically important step in the struggle against discrimination in all areas that will help to create a more democratic labor market.

 

References
Allen, R., Crasnow, R. Employment law and human rights. Oxford university press Inc, NY. 2002.
Anglim, C.T. Labor, Employment, and the Law. A dictionary. ABC-CLIO. Santa Barbara, California. 1997.
Collins, H. The equal opportunities handbook. A guide to law and best practice in Europe. Blackwell. 1992.
Donohue, J.J.III. Foundations of employment discrimination law. New York,2003.
Findley, H., Dodd-Walker, E., Moten S., Garrott S. (2010).”¯Pregnancy Discrimination: Alive and Well at 30”¯. Proceedings of ASBBS, 17 (1).
Hedrick Alexandra K. (1998). “Pregnancy Discrimination-Rights, Remedies, and Defenses”¯. The Florida Bar Journal, Volume LXXII, No. 6.
Rabin, R.J. Labor and employment law. Problems, cases and materials in the law of work. Third edition. West Group. 2002. 886 p.
Smith, A.B., Craver C.B., Clark L.D. Employment discrimination law: cases and materials. Fifth edition. Lexis Publishing. 2000. 1113 p.
Weirich, C.G. Employment discrimination law. BNA Books. Washington D.C. 2002.

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