Flight Attendants and Spontaneous Abortions: a New Study
By Ronald Turner
Do working flight attendants experience increased rates of spontaneous abortions? This question is addressed in James E. Cone et al., "Reproductive Health Outcomes Among Female Flight Attendants," Journal of Occupational and Environmental Medicine 210 (March 1998).
The study begins by noting that flight attendants are exposed to circadian rhythm disruption, increased gravitational forces, ozone, noise and vibration, decompression, fatigue, chemicals (including hydraulic fluid, jet fuel, and pesticides), cigarette smoke, viral infections, and cosmic and other ionizing radiation exceeding the National Council on Radiation Protection and Measurements' recommended exposure limits for pregnant women flying at high altitudes.
Seeking to determine the frequency of adverse reproductive outcomes, the researchers conducted a random sample of 9,392 of the more than 30,000 persons listed as active members of the Association of Flight Attendants as of January 1, 1990, and surveyed flight attendants who were pregnant at any time during the period beginning on January 1, 1990 and ending on December 31, 1991. More than 5,600 flight attendants surveyed (86% of whom were female) responded to a preliminary eligibility questionnaire, and 718 female flight attendants answering the questionnaire indicated that they had been pregnant during the January 1990-December 1991 study period.
The study found that the percentage of spontaneous abortions (defined as a fetal loss occurring at up to 28 weeks of gestation) for flight attendants not working outside the home during the first pregnancy of the study period was 8%. Fifteen percent of flight attendants working outside the home during the first pregnancy of the period under study experienced a spontaneous abortion, a figure comparable to the proportion of spontaneous abortions reported for the general population of the United States and for other working women (specifically female attorneys, veterinarians, and resident physicians). The study thus concluded that "flight attendants who worked outside the home during pregnancy experienced a nearly two times estimated increased relative risk of spontaneous abortion, compared with flight attendants who did not work outside the home during pregnancy . . ." (See page 213 of study). In addition, flight attendants "who experienced a spontaneous abortion during their first pregnancy during the study period reported working significantly more flight hours per month during their pregnancy (74 hours per month) than flight attendants who delivered a live birth (64 hours per month) . . ." (Study, page 212).
Can an airline concerned about the increased rate of spontaneous abortions discussed above lawfully reduce the working hours or otherwise limit the employment opportunities of pregnant flight attendants? Any such restriction or limitation would appear to be a facially discriminatory policy violative of Title VII of the Civil Rights Act of 1964. Title VII provides, in pertinent part, that an employer shall not discriminate against employees on the basis of sex; that prohibition includes the federal Pregnancy Discrimination Act's ("PDA") ban on discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions."
In International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), the United States Supreme Court held that Title VII, as amended by the PDA, forbids sex-specific fetal protection policies. In that case, the employer's policy excluded fertile women from certain jobs because the company was concerned that the occupational exposure to lead used in the manufacture of batteries entailed a risk of harm to a fetus carried by a female employee. Holding that the policy explicitly discriminated against women on the basis of their sex, the Supreme Court noted that the employer's policy would be unlawful unless the employer could show that the policy was a "bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business or enterprise." In the Court's view, "permissible distinctions based on sex must relate to ability to perform the duties of the job," and "women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job." The Court concluded that with the PDA "Congress made clear that the decision to become pregnant or to work while being either pregnant or capable of becoming pregnant was reserved for each individual woman to make for herself." Accordingly, the employer's moral and ethical concerns about the possibility of fetal harm caused by detrimental occupational exposure did not establish a BFOQ. "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. . . ."
In sum, federal antidiscrimination law mandates that the question whether a pregnant employee should continue to work where there is a risk of work-related spontaneous abortion is to be answered by the employee and not the employer. Under the Johnson Controls analysis, an employer cannot restrict the employment of pregnant flight attendants who are capable of performing their job duties.