Comment by Holly Coates Keehn
In the twentieth century, employment discrimination based on certain physical and biological factors has become a great concern to legislators, courts, and commentators. Recent years have also seen an increase in concern regarding the issue of occupational safety. In addition to capturing the attention of special interest groups, commentators, and critics, both of these concerns have spawned a myriad of state and federal legislation
The bodies of law surrounding employment discrimination and occupational safety issues have developed, to a great extent, independently of each other. Current federal legislation deals with either the problem of employment discrimination or of occupational safety and does not consider the possibility of overlap between the two areas. Thus, while discrimination and safety issues may overlap, the legislation that regulates them does not. As a result, there are sometimes significant gaps in statutes designed to protect workers' interests. These gaps deny certain individuals equal rights in the workplace. Specifically, individuals who are uniquely susceptible to certain occupational hazards may find themselves facing problems on both sides of the employment fence. On the one hand, they may be denied employment due to their susceptibility. On the other hand, if their current job is hazardous to them, they may not have the opportunity either to protect themselves or to transfer to another job with the same employer. In either situation, these individuals may have no statutory protection.
This Comment discusses the problems of uniquely susceptible individuals in the workplace by examining federal legislation in the areas of employment discrimination and occupational safety and by exploring the gaps in the coverage of these statutes. Part I provides a general background to the growing problem of uniquely susceptible individuals. Part II examines the coverage provided by several federal statutes: Title VII of the Civil Rights Act (Title VII), the Rehabilitation Act, the Occupational Safety and Health Act (OSHA), the Toxic Substances Control Act, and the National Labor Relations Act (NLRA). These statutes will be examined regarding the issues of hiring, placing, and retaining uniquely susceptible employees. Finally, Part III examines the two gaps in the protection provided to employees under these statutes. The first gap becomes apparent when a problem that is addressed by the general purpose of a statute is nonetheless left unresolved by statutory interpretation. For example, part of the general purpose of Title VII is to prevent discrimination based on gender. However, judicial interpretation of Title VII has failed to protect women from discriminatory treatment in certain circumstances. The second gap in the federal regulatory scheme occurs when, as in the case of most uniquely susceptible individuals, the legislation simply was not designed to meet the problem posed. For example, OSHA was designed to deal with the issue of worker safety for the average worker, not for someone with special needs. Thus, OSHA cannot effectively deal with the problem of uniquely susceptible individuals.
About the Author
Holly Coates Keehn.
Citation
64 Tul. L. Rev. 1677 (1990)