By Rachel Pressdee, Feature Editor
Once upon a time, there was no expectation that employers needed to care about the well-being of their workers. However, throughout American history, women have fought on the front lines of labor reform movements by fighting for better wages, equal rights, and safer working conditions. In 1917, a combination of events occurred that would lead to the establishment of life-saving regulations, and ultimately, to the creation of the Occupational Safety and Health Administration. These events included the United States entering World War I and an exploding demand for luminous watch faces.[1]
The Radium Girls of the 1920s changed the course of occupational disease labor law. These glowing young women brought about the first case in which an employer was held responsible for the health of its employees.[2] Unfortunately, these laws would only help workers moving forward. It is important to know the story of thes courageous young women who fought from their deathbeds to seek justice for workers everywhere.[3]
With war declared, working-class women all over the country entered the workforce. One of the most sought-after jobs for young girls and women in America involved something exciting and brand new: radium.[4] Sparkling, glowing, and beautiful, radium was also, according to the companies that employed these young women, completely harmless.
Radium was widely heralded as a wondrous new substance after it was first discovered by Marie Curie. Radium appeared to have an infinite number of uses, including making the numbers on clocks and watches easier to see. [5] Workers needed to coat the dials with radium paint, and the best and most efficient workers were women and girls, some as young as 14 or 15 years old. The United States Radium Corporation (USRC) and the Radiant Dial company employed hundreds of women in factories in New Jersey, Illinois, and Connecticut.[6] Being a dial-painter was a desirable job among these young women. The job paid well, provided financial and personal freedom, was pleasant and sociable, and came with a bonus perk: access to radium.[7]
Radium’s luminosity was part of its appeal. By the time the dial painters finished their shifts their clothing would be covered with radium dust and the ladies would glow in dark. The women made the most of this perk by wearing their best dresses to work so they would shine when they went out at night. Some would even paint radium on their teeth for a smile that would sparkle.[8] These women were under the impression that radium was perfectly safe for them to be handling in this way. In fact, they were instructed to use a technique called lip-pointing when painting the watch faces:
In order to obtain the fine lines which the work required, a girl would place the bristles in her mouth, and by the action of her tongue and lips bring the bristles to a fine point. The brush was then dipped into the paint, the figures painted upon the dial until more paint was required or until the paint on the brush dried and hardened, when the brush was dipped into a small crucible of water. This water remained in the crucible without change for a day or perhaps two days. The brush would then be repointed in the mouth and dipped into the paint or even repointed in such manner after being dipped into the paint itself, in a continuous process.[9]
The pay was good and the work was easy, but then some of the women started having strange pains in their mouths and bones. Their teeth would loosen and fall out and their jaws, legs, and ankles would develop permanent aches or even crumble.[10] In September of 1922, just shy of her 25th birthday, Mollie Maggia became the first dial painter to die. It started as an aching tooth, progressed to pains in her limbs so severe she was unable to walk, and, less than a year after her ailments began, the disease took her life. Her death certificate said she died of syphilis, later her cause of death would be identified as radiation poisoning. [11] Between 1922 and 1933 twenty-two dial painters are known to have died from radiation poisoning.[12]
The case of the Radium Girls is one of the earliest documented efforts to receive compensation for an occupational disease.[13] These young women faced many obstacles, and many litigants today are facing the same hurdles. Despite the changes in both the legal field and in the culture itself, many of the issues that the Radium Girls faced continue to pop up in other occupational health cases and contribute to the challenges litigants face when trying to receive fair compensation for occupational diseases.[14]
To start with, it was difficult to find an attorney willing to take on such a case. These women had mounting medical bills and could not afford to pay an attorney up front to handle their case and lawyers typically only take cases on a contingency-fee-basis when they believe there is a high chance of success.[15] This means that victims who have legitimate claims will often go without counsel if their case has a low expectation of recovery or is complicated by the facts or legal issues involved.[16] With the help of a worker’s protection organization, five of the Radium Girls were able to secure representation.[17]
Another hurdle the women faced was identifying their injury. In order for an injury to be ripe for litigation, a litigant must obtain a diagnosis for their symptoms and a name for their condition.[18] Once the injury is named, the litigant has to attribute that injury to the fault of another, in this case, the USRC, and demand some remedy.[19] When an injury is unperceived, unnamable, and/or without an identifiable culprit, the victim will never be able to receive compensation for their injury.
The vast array of symptoms produced by the exposure to radium complicated the identification of the disease that afflicted these women. The issue was further muddled by the fact that some dial painters suffered no ill effects.[20] When the symptoms differ and not all parties are affected in the same way, it brings up questions that the litigant is not able to answer. “Surely, if all the symptoms were the result of the same occupational disease, women working at the same plant, doing the same job, would show the same symptoms.”[21] However, the fact that not all workers have the same exposure; work habits, individual susceptibility and resistance, preexisting conditions, and varying lengths of exposure, can explain why it is difficult to identify a single illness.[22]
These same issues can still be seen today. For example, take the case of Stephen Hopkins, an officer in the Army who suffered from chronic lead poisoning.[23] When Hopkins experienced swings in his blood pressure, nausea, muddled thinking, and other abnormal symptoms, medical tests were inconclusive. Doctors believed he was depressed, suffered from post-traumatic stress disorder, or was faking it to get out of duty.[24] Hopkins was the first of many service members to be diagnosed with chronic lead poisoning from exposure to ammunition, but the condition is tough to sell to military physicians and the medical community because of the rarity of lead poisoning in adults. Therefore, the symptoms are often misdiagnosed and the service members are not provided the proper treatment.[25]
Firefighters are exposed to carcinogen-laden smoke and chemicals while performing their jobs and a high percentage of them are afflicted with cancer.[26] Many of these firefighters do not know what caused their cancer, or why some were affected and some were not. James Smith fought fires alongside a lieutenant for many years. Eighteen years later, Smith was surprised to learn that he and the lieutenant both suffered from bladder tumors of the identical type and size. Why did two firefighters have the same rare ailment, while others that fought alongside them did not? Is it a coincidence that Smith spent his life fighting fires, inhaling smoke and chemicals known to cause cancer, and has suffered from prostate cancer, bladder tumors, basil cell cancer, and liposarcoma? Or are they occupational diseases that not every firefighter suffers?
Once the five Radium Girls were able to obtain a diagnosis of radiation poisoning, the next obstacle they faced was how they would claim relief. At the time, the workers’ compensation statute contained an exclusive listing of compensable occupational diseases including anthrax, lead, mercury, phosphorus, wood, and alcohol poisoning. Radiation poisoning was not included.[27] Therefore, the only way these women could obtain a remedy was based on common law. The women claimed that the USRC breached a common law duty to provide a safe work environment. Additionally, the complaint identified the radioactive paint as an ultra-hazardous material that should be subject to strict liability for any injuries associated with its use.[28]
The last big hurdle these women faced was the statute of limitations. Under New Jersey law at the time, the statute of limitations was within two years of the relevant injury.[29] The “discovery rule” that would have tolled the running of the statute until the injury was discovered did not exist at the time. The women’s only recourse was to petition the Court of Chancery, a court of equity, to avoid the consequence of the expired statute of limitations.[30] The court did not reach the statute of limitation issues and the USRC settled out of court, mostly due to the negative publicity created by the story of the five Radium Girls.[31] Within five years of the settlement, all five of the women were dead.[32]
Exposure to toxic substances and injurious practices in the workplace continues to generate unknown occupational disease and continues to be problematic in the legal system.[33] Not all occupational illnesses can be attributed to negligent conduct, but some are certainly caused by the improper handling of toxic substances, insufficient safety standards, or inadequate testing of potentially toxic materials.[34] Just like the Radium Girls, litigants of claims relating to previously unknown occupational diseases face substantial and complex hurdles. Despite the changes in legal doctrine, litigation strategy, and scientific advancements, the same forces that shaped the Radium Girls’ tale continue to surface in other previously unrecognized occupational disease and mass tort injuries.[35]
[1] Christine A. George, Keeping Up with New Legal Titles: More, Kate. The Radium Girls: The Dark Story of America’s Shining Women, 110 Law Libr. J. 413 (2018); Kate Moore, The Forgotten Story of the Radium Girls, Whose Deaths Saved Thousands of Workers’ Lives, BuzzFeed (May 5, 2017), https://www.buzzfeed.com/authorkatemoore/the-light-that-does-not-lie?utm_term=.evY7A2gWZp#.evY7A2gWZp.
[2] Moore, supra note 1.
[3] Id.
[4] Kate Moore, The Radium Girls: The Dark Story of America’s Shining Women (2017).
[5] Id.
[6] Sadie Trombetta, You Have the Right to a Safe Workplace Because of the Radium Girls, Hello Giggles (Mar. 30, 2018), https://hellogiggles.com/news/politics/right-to-safe-workplace-radium-girls/.
[7] Id.
[8] Moore, supra note 1.
[9] La Porte v. United States Radium Corp., 13 F. Supp. 263, 264 (D.N.J. 1935).
[10] Moore, supra note 4.
[11] Moore, supra note 1; Trombetta, supra note 6.
[12] Kenneth A. DeVille & Mark E. Steiner, The New Jersey Radium Dial Workers and the Dynamics of Occupational Disease Litigation in the Early Twentieth Century, 62 Mo. L. Rev. 281, 283 (1997).
[13] Id. at 282.
[14] Id.
[15] Id. at 306.
[16] Id.
[17] Id. at 283.
[18] Id. at 287.
[19] Id. at 286.
[20] Id.
[21] Id.
[22] Id. at 286-87.
[23] Patricia Kime, The Army Thought He Was Faking His Health Issues. Turns Out He Had Chronic Lead Poisoning, N.Y. Times (Apr. 3, 2019), https://www.nytimes.com/2019/04/03/magazine/lead-poisoning-military-soldiers.html.
[24] Id.
[25] Id.
[26] James P. Smith, Cancer and Firefighting, 44 Cygnus Bus. Media 22 (2019).
[27] DeVille & Steiner, supra note 12 at 284.
[28] Id. at 285.
[29] Id. at 286.
[30] Id.
[31] Id. at 303.
[32] Trombetta, supra note 6.
[33] DeVille & Steiner, supra note 12 at 313.
[34] Id.
[35] Id.
