JD

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

health records,

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

Compliance Programs

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 &

Oliver, 1997).

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

programs.

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

written policies.

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:

1. a report prepared by an auditor, monitor, or similar person, which may include:
2. a description of the scope of the audit;
3. the information gained in the audit and findings, conclusions, and recommendations; and
4. exhibits and appendices;
5. memoranda and documents analyzing all or a portion of the materials discussing

implementation issues; and

3. 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.

Conclusion

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!