On November 6, 2025, the NAM filed an amicus brief urging the Washington State Court of Appeals to reject novel claims against an employer for alleged injuries to employees’ unborn children—a significant expansion of potential liability. In Bauer v. Boeing, a class of former Boeing employees (predominantly male) who worked for the company across several decades claim they were exposed to various, unnamed “harmful chemicals” during their employment. They each later had children who experienced some type of birth defect. This lawsuit was filed on behalf of those minor children, as the fathers claim the chemical exposure they experienced at work prior to conceiving the children caused these birth defects. The general rule nationwide is that employers do not owe a duty of care to a person who has not yet been conceived. Unfortunately, the trial court disagreed. The defendants then brought the case to the Washington appellate court to decide the question of pre-conception liability for employers.
Our brief explains that holding employers liable for injuries to individuals who did not exist at the time of the employer’s conduct would be a massive expansion of tort law duty and create a world of uncertainty for employers. Not only would it give rise to open-ended liability for generations as novel theories of medical causation are continually proposed, it also injects employers into the private lives of their employees—unwillingly. Employers would be compelled to inquire about medical histories and potential reproductive plans when making hiring decisions, likely in conflict with many state and federal privacy laws. All manufacturers have an interest in preventing this type of unbounded liability.