International Law Protecting Women Lawyers: Gender Equity for Occupational Safety and Health (OSH)
NOTE: This MsJD BLOG IS BASED ON MY June 2016 professional development course (PDC) Session No. 769 at the AMERICAN SOCIETY OF SAFETY ENGINEERS (ASSE) SAFETY 2016 entitled: Remember the Ladies: Gender Equity for Occupational Safety and Health (OSH) Programs under International Law
Special thanks to my co authors! Morgan M. Bliss, M.S., CIH, EOC Safety Officer, Dignity Health and Aubrey HB, Ph.D. Chief Data Scientist, Sirius XM Canada.
READ the entire document and the video after the course will have been given at the Body of Knowledge (BOK) LINK at asse.org
First Lady Abigail Adams was the wife of the second United States (U.S.) President and the mother of another U.S. President; she was also a remarkable businesswoman who successfully ran a farm while her husband was away writing the Declaration of Independence.
Abigail Adams wrote a letter to her husband, John Adams, 95 days before Mr. Adams signed the Declaration of Independence. In her letter, Abigail wrote: “[…] in the new code of laws which I suppose it will be necessary for you to make, I desire you would remember the ladies and be more generous and favorable to them than your ancestors” (Adams, 1776).
Gender equity in the workplace is therefore an old problem, but one that has garnered significant attention in recent decades. Unfortunately, current international and U.S. workplace policies still reflect many of the dilemmas that were confronted by Mrs. Adams at the birth of the U.S. in 1776, despite success stories and great strides in gender equity around the world.
As women become an increasingly large percentage of the legal profession, it is for the first time necessary and appropriate to examine the questions of occupational health that were long ignored
According to WHO, some risks faced by women in the workplace can appear “deceptively
unremarkable.” However, the risks of pressure on limbs in sewing machine operators, exposure to
chemicals in cleaning or hairdressing jobs, and exposure to pesticides in agricultural work are
more likely to be chronic and have an impact on the women’s reproductive health as well as
overall health status. WHO found that job and task segregation by gender results in different
hazards in their respective workplaces, with attendant different impacts on health status. It is well
known that heavy tools and work equipment are usually designed for men’s bodies and can be
unsuitable for an average woman or a small man.
International law and the law of every nation requires that employers bear responsibility for
workplace health hazards, regardless whether they impact only men or only women. If one were
to look at the economic force of women as a market share, it is surprising that gender equity
should be such a struggle because:
Women make up 40% of the paid workforce worldwide.
In developed countries, women account for nearly half of all paid workers.
The gender gap is gradually shrinking as the share of women in paid work increases and the
share of men in paid work decreases.
Women on average continue to earn less than their male colleagues, even for the same job,
and tend to perform more unpaid work at all levels including professional tasks.
Issues of concern in occupational health and safety for female lawyers include: whether there is or ought to be a separate agenda for women’s health protections at work, elements of reproductive health at work that may impact men and women differently, and the resulting health disparities that may arise from inadequate protection. Achieving goals of gender equity in the workplace under international law requires the same opportunity to work without an adverse impact on womens health.
Operationalizing this goal may require constructing programs that meet women’s unique needs, rethinking job hazard analyses of traditionally “female” jobs and tasks, and then embedding those needs into compliance programs that monitor workplaces, even if the program must be retooled to meet the needs of women who were previously absent from the workforce.
One key area for women workers across many job descriptions that especially impacts lawyers is satress. By focusing on reducing health hazards and improving the psychosocial environment
Defining the international legal Context for Gender Equity
“Is equity the same as equality?” was a long-standing question in international meetings
throughout the 1990s. This question impacts the legal definition of “gender equity.” This term is
often confused with similar terms like “gender equality,” “occupational inequality,” and “gender
inequality,” but “gender equity” has a specific meaning under international law. The term
“gender” has evolved to replace terms such as the language in U.S. law for differences “based on
sex” because people may find themselves in gendered roles despite the sex of their birth that are
the cause of inequality or discrimination by people around them.
It is important to note that “equity” is not “equality.” This subtle change of terms compared to
early UN documents reflects a recognition of the contribution of the disability community to the
jurisprudence of human rights under international law. Specifically, disability is a confounder that
militates against making everybody “equal.” For example, one cannot be fair to a person who is
missing a leg by requiring everyone equally to walk up a flight of stairs in order to obtain free
medical care. Conversely, making people equal by making everyone ill from workplace
exposures would be a perverse endeavor.
Thus, the law has evolved to seek fairness in outcome, even when “all things being equal, they aren’t,” by creating policies that attempt to have fair results. By using the term “gender equity,” international law recognizes the reality that there are biological, cultural, and perhaps legal differences between men and women. The existence of gender differences means we cannot make everything “equal.”
Instead, international law strives to render the differences between genders to become so unimportant that the results of our policies are inherently fair.
Health in the workplace is an excellent starting point for ensuring fairness regardless of gender,
so that the greater society is served by our work. The WHO Constitution provides a clear
definition of “health” that has been recognized as international law for over 70 years. Ratified by
the U.S. and nearly 200 other nations, the definition of “health” has been incorporated into many
national constitutions (World Health Organization, 2006): “Health is a state of complete physical,
mental and social well-being and not merely the absence of disease and infirmity.”
In the 20th session of the Human Rights Council of the UN General Assembly, the Special
Rapporteur, Anand Grover, provided a report that describes the right of every person to enjoy the
highest attainable standards of physical and mental health, even in the workplace. This report
states that occupational health must be considered an “integral component” of the right to health
for every human. When explaining the conceptual framework of the right to occupational health,
the report identified the following basic elements of occupational health:
Member States of the UN must improve prevention, treatment, and control of occupational diseases.
Preventive measures include minimization of health hazards inherent in the work
environment using available technology and epidemiology.
Women have a right to health and safety at work, including “safeguarding of the function of
reproduction,” and should be provided special protection during pregnancy if the work they
are doing has been proven to be harmful to them.
Workers must be protected against sickness, disease, and injury resulting from employment –
this is identified as a fundamental human right.
The World Health Organbization(WHO ) Constitution of 1948 signed by the USA and over 200 nations defines“Health” as not just the absence of disease or injury, but including physical, mental and “social well-being”.
An international framework for gender equity has been established by the many treaty bodies
of the UN, and the presence of anti-discrimination laws promoting gender equity exist in every
nation, sometimes simultaneously at the local and national level. These issues are addressed in many international documents such as: UN Charter; Universal Declaration of Human Rights; International Covenant on Economic, Social and Cultural Rights; International Convention on the Elimination of All Forms of Discrimination Against Women; Beijing Declaration on Occupational Health for All; WHO Constitution; Cairo Conference on Population and Development. The U.S. Pregnancy Discrimination Act of 1978 prohibits discrimination on the basis of pregnancy, childbirth, or related illness in employment opportunity, health or disability insurance
programs, or sick leave plansUnder international law, there is a plethora of global mandates for women’s health protections, present programs promoting gender equity and workplace health, introduce the effect of chemicals on women’s health in the workplace, and examine recommended improvements to the psychosocial work environment. As revealed by the 20-year review of the United Nations (UN) Beijing Platform Document regarding the role of women, previously discussed in two publications from the American Society of Safety Engineers (ASSE), international and U.S. regulations associated with gender equity have been in place for several decades, but implementation is slow and in some regards society
has regressed. International initiatives such as the International Labour Organization (ILO) “Safe Maternity” programs, including the ILO Maternity ProtectionConvention, have set standards for pregnancy protections in the workplace, as a “shared responsibility of government and society” . For example, the requirements of the ILO Maternity Protection Convention are now followed at Macy’s Inc. in their stores throughout the U.S.
Many instruments have been ratified by the UN member States through the ILO relating to occupational health and safety, including the Convention on Occupational Safety and Health, No. 155 (1981); the Working Environment (Air Pollution, Noise and Vibration) Convention, No. 148 (1977); the Occupational Health Services Convention, No. 161 (1985 The UN Convention on the Elimination of All Forms of Discrimination against Women(CEDAW) is widely considered an “international bill of rights for women” since 1979. The UN report “Progress of the World’s Women 2015-2016,” rights at work for women include:
safe and healthy working conditions;
rest, leisure, and reasonable limitation of working hours and periodic holidays with pay;
“[h]ealth hazards of women workers have
been traditionally under-estimated because occupational safety and health standards and exposure
limits to hazardous substances are based on male populations and laboratory tests.” Women’s
multiple roles in society and the effects of gender on health need to be further researched to
understand the relationship between work and women’s health.
As in the case of discrimination laws, occupational health and safety laws are universally
available in every country and in many treaties.
Mentioning the Unmentionable: Improving the Psychosocial Work Environment
Stressors in the workplace are an important example of One of the few aspects of health where a clear but unaddressed difference in the impact upon health of men compared to women is stress. Yet, male paradigms for stress at the
workplace have dominated occupational epidemiology for years, and few studies take into
account the important role of household and family stressors that impact women’s health at work;
sometimes the stressful demands of work and family members are inseparable.
Unfortunately, thse data are the basis of most national and international occupational healthand safety laws, nonetheless, despite their embedded and almost subconscious gender bias. There are also gaps in occupational epidemiology when considering the effect of gender –according to an article on work-related inequalities in health, there has been a “lack of consideration of sex and gender differences” in work exposures and hazards. A lack of analysis or measurement of domestic work hazards, part-time or flexible work arrangements, long working hours, has also contributed to the paucity of information about gender inequalities in workplace health.
– many women participate in paid work while continuing to do the unpaid work of caring for family and household chores after their paid work, resulting in long hours and high stress
The psychosocial work environment can include elements like work organization,
organizational culture, work-life balance, and communication pathways. WHO provides the
following ideas on how employers can improve the psychosocial work environment for both
women and men, as summarized below (World Health Organization, 2011).
Evaluate and address potential differential impacts of work organizational factors on health
and well-being of both women and men workers.
Encourage a zero-tolerance policy towards all forms of violence and discrimination that
encourages the reporting of violent incidents.
Without restricting women’s access to jobs, address women’s concerns about working alone,
working late, and provide access to safe parking facilities.
Perform periodic training for managers and supervisors on work-family balance, workplace
violence, and health and safety issues from a gender perspective.
When possible, have formal flextime arrangements, self-scheduling, schedule exchanges,
telework or virtual work, compressed workweeks, predictable working hours, paid or unpaid
leave for family emergencies or prolonged illness of a family member, and parental leave
after the birth or adoption of a child.
a key issue is the lack of sufficient analysis and studies addressing how potential workplace health risks uniquely impact women versus men. data is collected, the raw material for such research is undoubtedly available.
respiratory ailments, cancer, and skin reactions7 – may take many years to progress, making
shorter-term statistics such as “missed work days” less valuable to a realistic assessment of longterm
health impact, including potential variations between such impact on the sexes. Therefore, to
understand if the exposure has different effects on men versus women, one would want to have
access to the long-term medical records of the men and women identified as workers within each
exposed role as identified by the U.S. Department of Labor. Proper assimilation of data can be
achieved with collaboration between data engineers at the respective government agencies, and
attention to detail so that the gender of each industry worker is connected to their respective
This could be done by looking at the number of physician visits, the diagnosis codes, the medical
procedures performed on each patient, the dose and frequency of certain medications, and so on.
Clearly, if one gender exhibits a higher rate of physician visits and riskier medical procedures
performed, then it can be inferred that gender equity needs to be addressed in the materials for
safety. If the distributions are indistinguishable in the case of a specific hazard, safety issues may
not be gender specific with regard to that hazard, and the materials can be gender non-specific. Of
course, the analyses should be continued and the current and future populations of exposed
workers should be followed for years to come for two substantial reasons. One, it should be
determined whether any latent medical issues have been introduced into the analysis that could
change the respective outcome. By continuing the analysis over time, it can also be determined if
pregnant women and their respective offspring develop additional diseases not seen during the
original population study. Two, monitoring this population over the years to come will allow
researchers and policy makers to have a tangible, quantifiable ability to see that policies have
effected safety within the workplace, with or without gender equity being a confounding factor.
Only then will there be a method of identifying empirical success for any safety policies and laws
put in place for current and future workers.
Bringing Gender Equity Under Law to Effective OSH
A compliance program must: (1) expand the scope of audits beyond policies, to include
procedures; (2) take affirmative steps to “find out what’s going on”; (3) empower compliance
personnel; (4) discipline with vigor; and (5) clearly document activities in the compliance
program; without documentation, the program never happened. The difference between “genuine”
or “meaningful” compliance and “sham” compliance programs, however, is found in their
implementation. Enhancing in-house occupational health compliance infrastructure involves
describing the “how to” of in-house compliance programs to each member of the staff, from the
top of the organization to the lowest echelons.
Effective management systems use approaches honed by regulators to prevent, detect, report
and correct failures in occupational safety and health. For example, OSHA’s Voluntary Protection
Program (VPP) requires identifying occupational health problems to prevent future harm, by
requiring job hazard analysis, management commitment and employee involvement (Feitshans &
Compliance staff must have a command of occupational health laws, health insurance
regulations, laws prohibiting discrimination based on age or disability, and perhaps even federal
entitlements to social security for workers near retirement as part of routine compliance practices.
Staff must have the good sense to apply sound information about immediate dangers, despite the
undercurrent of pervasive risks, in order to steer clear of danger. Compliance staff must also have
the power and professional integrity in order to use sound occupational health information, even
in the face of a storm of controversy regarding the potential economic loss or other costs
associated with withdrawing or changing plans.
Compliance programs therefore provide the constant, although ever-changing means, for an
employer to demonstrate due diligence, by offering the in-house blueprint to conduct
simultaneous oversight in several areas of law: preventing discrimination based on age, gender,
race, ethnicity, religion, or disability combined with health insurance requirements and laws
preventing environmental harm. Technology and the impact of globalization have dramatically
altered the nature and organization of work in the United States and throughout the world
“The Nuts and Bolts of Compliance Programs: Occupational Health Management Systems in Australia and
the USA,” a presentation at the International Workplace Health and Safety Forum and 33rd Ergonomics
Society of Australia Conference in 1997.
(Feitshans I. L., 2004). This requires a new approach taking into account a wide variety of special
individual needs, custom tailoring work protections rather than a “one size fits all” approach.
Due Diligence Is Your Best Friend
To be effective, a compliance program must be able to prove itself. This requires that the program
be documented in order to prove that the employer has complied with the law. Each in-house
compliance program must decide for itself the area of emphasis that will best foster compliance,
specific to the workplaces and the demands of the tasks at hand. This requires examining the
relative advantages and weaknesses of different components of effective occupational health
Due diligence requires developing committee structures and the regular use of a smoothflowing,
on-going infrastructure for improved communications for training and for reporting
compliance problems. The in-house compliance program for safety and health cannot be treated
as if it were a trade secret. A clear organizational structure allocates in-house compliance tasks
and make in-house staff accountable for the achievement of compliance program goals and
objectives. These goals and objectives should be stated by the employer’s actions and in its
Implementation of the compliance approaches in these programs can assist organizations to
anticipate areas where compliance failures may arise employing hotlines, committees and other
compliance tools to prevent systemic failures. One key tool is the internal audit, and there are
several examples of the major components of audit systems offered in legislation. According to
the Texas Environmental Health and Safety Audit Privilege Act:9 “Environmental or health and
safety audit means a systematic voluntary evaluation, review, or assessment of compliance with
environmental or health and safety laws or any permit issued under those laws.”
Audit reports typically include:
- a report prepared by an auditor, monitor, or similar person, which may include:
- a description of the scope of the audit;
- the information gained in the audit and findings, conclusions, and recommendations; and
- exhibits and appendices;
- memoranda and documents analyzing all or a portion of the materials discussing
implementation issues; and
- an implementation plan or tracking system to correct past noncompliance, improve current
compliance, or prevent future noncompliance (Feitshans I. L., 1997).
Due Diligence is Your Best Friend
Due diligence is the fundamental concept for crafting and implementing effective in-house
management systems for occupational health compliance that avoids liability. In many legal
systems, the strongest systems are cyclical as noted in Exhibit 3 by Dr. Mark Hoover, et al., the
American Industrial Hygiene Association (AIHA) and NIOSH (Hoover, et al., 2011).10
This framework should include training, documentation, and continuous improvement between each element. NIOSH and AIHA use the term “ARECC” as shorthand for the five elements of risk management, “Anticipate, Recognize, Evaluate, Control, and Confirm” as identified below.
The notion of a cyclical system makes reporting normal as well as required, with built-in
follow up as well as long term accountability. With the help of corporate anthropologists and
outside consultants, staff can be briefed about key issues, when designing the overall in-house
approach to occupational safety and health right to know training, tailored to corporate culture of
a specific enterprise and thereby creating a specialized system with effective results.11
Compliance programs offer concrete proof of due diligence, and thus allow an employer to enjoy
a legal presumption of compliance in litigation or regulatory enforcement actions where the limits
are unknown. To do so requires candid ongoing detailed scrutiny of internal problems within the
worksite, as well as documentation of every reasonable effort for troubleshooting and creating the
most reasonable solutions to those problems.12
Effective in-house OSHA compliance programs require the best possible lines of
communication in order to be successful. In order to work, lines of communication must be
established long in advance of any emergency. Such efforts can also facilitate compliance with
new changes or modifications in the federal law because of their inherent flexibility. The socalled
“paper trail” is dependent entirely upon proving this concept of “due diligence”.
Embedding compliance values into the corporate culture and its infrastructure may be viewed
as an essential step towards constructing and implementing a system of mandatory procedures
integrated into operations, designed to ensure that proper compliance with the law is actually
achieved to the maximum extent practical. When it works perfectly, an embedded value will also
function as a safety “valve” that prevents the flow of inappropriate concepts from gaining
currency throughout the system. Embedding compliance therefore extends beyond operating
divisions, and embraces everyone affected by the system, from the chair-of-the-board to the
custodial staff, ensuring that all employees are subject to policies and procedures that are
applicable to their particular functions.
Significantly, if the correct values have been embedded into the infrastructure, illegal or
irresponsible activities will be prevented by the system itself. This applies not only to
manufacturers, chemical plants, and steel mills – or any businesses that have a greater degree of
physical risk for workers – it also applies to all other businesses that have an established
workplace with key staff. The concept of embedding values into the employer’s infrastructure is not novel or new; strategies and programs are required to comply with the UN’s commitment to
these fundamental structural values. The MDGs and SDGs are not mere add-ons that one inserts
carefully to retrofit existing standards. The value added by these goals improves the economic
well-being of workers, their employers, and their health and their families immeasurably. In order
The result, however, will not be “one size fits all.”
Effective communication is the blood that circulates to turn “management commitment” into
“active involvement” under OSHA’s compliance ethos. Communication means frequent, readerfriendly
reminders that are to the point, attractive, and brief. Often a few lines in normal staff
communications (emails, newsletters, social media, etc.) are more effective than a standard
lecture or training.
International legal documents using the term “gender equity” rather than “gender equality,” suggests
recognition of the fact that there are biological, cultural, and perhaps legal differences between
men and women that cannot make everything inherently equal. However, in the workplace and
the greater society that is served by our work, we want that difference to become unimportant, so
that the results of regulations and policies are fair. This means making sure that every worker,
regardless of gender, has the safety and health protections necessary to enjoy the right to a safe
and healthful working environment. Achieving the goals of gender equity while providing a safe and healthful working environment is not only required, but an important feature of due diligence in every employer’s compliance program. The future of personalized/individualized medicine, including using genetic engineering and nanotechnology for precision medicine, may change the focal points of these questions of gender equity. One unresolved and insufficiently researched issue is the impact of unpaid domestic and caregiving work and its associated stressors on the health of paid working women. Another insufficiently researched issue is the long-term impact of reproductive toxins from workplaces on the health of our posterity
The famous letters from Abigail Adams to her husband urged him to “remember the ladies” when declaring independent suffrage for humans who lacked the divine right of kings, and also described the hard work of managing a family business while raising and educating several children while combatting illness. She demanded suffrage for women and the right to own property. But unfortunately, neither of these legal powers came to women in her own lifetime
In sum, the employment targets of the UN Entity for Gender Equality and the Empowerment of Women (UN Women) provide insight to a changed political climate favoring laws to enforce equitable
employment for women that embraces safe and healthful working conditions with freedom from
workplace discrimination. Implementation putting gender equity into practice? Let’s get to work!