Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—Wash. App.: Boeing faces negligence claim for ‘preconception’ exposure, (May 20, 2026)

By Kathleen Kapusta, J.D.

“If Boeing’s conduct involves an unreasonable risk of injury to workers’ children, the timeline bears little import to the existence of a duty.”

Rejecting Boeing’s arguments to the contrary in a case brought by the wife of a former manufacturing plant employee on behalf of their son, who was born with significant birth defects allegedly due to the employee’s exposure to hazardous materials at work, a Washington state appeals court held that an employer, subject to foreseeability limitations, “may be liable for negligence towards an employee’s not yet conceived offspring.” Further, said the court, the exclusivity provision of the Washington Industrial Insurance Act (IIA) does not bar the child’s claim when “the not yet conceived offspring of the employee suffers a separate and distinct injury, even though causally connected to the employee’s employment” (Bauer v. The Boeing Co., No. 87593-1-1 (Wash. App. May 18, 2026)).

Chemical exposure. As an electrical installer at a Boeing plant since 2011, the employee alleged that he was regularly exposed to a mixture of chemicals that can harm unborn children and future offspring, “including through genetic, epigenetic and/or other mechanisms that damage sperm and/or otherwise impair the processes of conception and pregnancy.” While working at Boeing, he conceived a child who was born in 2017 with numerous permanent and disabling birth defects.

Since the 1970s, the court observed, peer reviewed epidemiological studies in medical literature have reported significant associations between paternal exposures to workplace chemicals and birth defects and since at least 1980, scientists have recognized that paternal exposure to chemicals can cause genetic damage in an unborn child. Moreover, according to a Boeing corporate representative, by at least 1984, the company knew that paternal exposures to workplace chemicals could cause birth defects.

Internal chemical list. Indeed, by 1986, Boeing toxicologists maintained an internal list of chemicals that caused developmental toxicity, including chemicals with which the employee worked. And in 1996, a Boeing toxicologist wrote several memoranda on the potential for paternal exposure to organic solvents causing birth defects.

Duty of care. In their lawsuit against Boeing, the plaintiffs alleged the employee reasonably relied on Boeing’s superior knowledge of potential workplace hazards and its ability to warn of those hazards and enforce appropriate safety measures. Boeing, they asserted, owed them a duty of reasonable care and breached that duty when it failed to provide adequate warnings, education, and training, to prevent chemical exposures, to monitor, and to investigate.

Certified questions. Boeing moved to dismiss and the superior court denied the motion and certified two questions to the state appeals court for discretionary review: (1) whether Washington law recognizes a duty on the part of an employer to the not-yet-conceived offspring of its employees (i.e., a “preconception” duty), and (2) if so, whether a claim for breach of such a duty is barred by the exclusivity provision of the Washington Industrial Insurance Act (IIA), title 51 RCW, when it arises from an occupational disease that impairs the employee’s reproductive system.

Preconception duty. Addressing Boeing’s assertion that Washington law does not recognize a preconception duty in the employment context, the court first considered precedent. According to Boeing, Washington law has recognized such a duty in only one case—Harbeson v. Parke-Davis, Inc., a 1983 state supreme court decision that recognized claims for wrongful birth and wrongful life. The case was brought by a woman who had been prescribed Dilantin which she took during her pregnancies, and which resulted in birth defects in her children. According to the Harbeson court, “a duty may extend to persons not yet conceived at the time of a negligent act or omission.”

While Boeing argued that Harbeson confined the duty to the context of reproductive healthcare, the court here, disagreeing, pointed out that Harbeson confined the duty to “those contexts which are foreseeable, ‘[a] provider of health care, or anyone else, will be liable only to those persons foreseeably endangered by this conduct.”

And while Boeing also pointed to Elsheref v. Applied Materials, Inc., a California case, which it claimed stands for the proposition that an employer does not owe a duty to its employee’s not-yet-conceived child, the court here noted that Elsheref was “non-binding and of questionable continuing validity, and because of our decisions holding employers liable for take-home exposure to a worker’s family, precedent supports the conclusion that Boeing” owed a duty of care to the employee’s son.

Public policy. Considering next public policy, the court noted that Article II, section 35 of the Washington Constitution provides that “The legislature shall pass necessary laws for the protection of persons working in mines, factories and other employments dangerous to life or deleterious to health; and fix pains and penalties for the enforcement of the same.” This provision, stressed the court, “constitutes a fundamental right of Washington workers to health and safety protection.”

Here the court found that, based on the facts alleged, the employee’s employment at the Boeing plant was “dangerous to life or deleterious to health.” Thus, the court explained, “public policy favors protecting [the employee’s] health and safety, including his reproductive health, because of the nature of his employment.”

Common sense, logic, and justice. Turning to common sense, logic, and justice, the court found Boeing’s claims that recognizing a duty of care here would “create a host of practical problems,” including “unpredictable and potentially unlimited downstream liability for employers,” did not excuse it from owing a duty of reasonable care to the employee’s son. “Employers need not inquire into their employees’ plans for reproduction to satisfy their duty of care. They need only ‘fully inform’ their employees of the risks and not act negligently.” Explaining that Boeing owed the employee’s son a duty of reasonable care, the court reasoned that whether the exposure to the dangerous chemicals occurred before or after conception was not dispositive.

Scope. As to the scope of Boeing’s duty of care, the court found the employee’s son was a foreseeable plaintiff. Noting that Washington has recognized a duty of care for employers to exercise reasonable care in preventing harm to workers’ immediate family members from hazardous workplace exposures, the court explained that the son was the offspring of an employee and the employee’s immediate household members were foreseeably exposed to workplace hazards carried home. “Moreover,” said the court, “the duty we recognize is inherently limited to the employee’s immediate offspring, anchoring it within foreseeable bounds.”

IIA’s exclusivity provision. Boeing next argued that the son’s claims were barred by the exclusivity provision of the IIA, which abolishes “all civil actions and civil causes of action” for workplace injuries. While the provision bars claims by family members that are derivative of the worker’s injuries, the son’s injuries here, said the court, “though a causal result of injuries suffered by [the employee], are legally independent from [the employee’s].”

In 2001, the court here observed, the state supreme court, in Meyer v. Burger King Corp., held that the IIA “does not apply to third parties, family or dependents, who themselves suffer an injury not legally dependent on the employee’s injury.” While that case, and the cases it relied on, all involved pregnant mothers who, in the course of their employment, suffered injuries that also injured their unborn children, the court found its reasoning applicable here.

The employee and his son’s injuries were causally connected yet separate and distinct, said the court, as the employee’s injury was damage to his reproductive system and the son’ s injury was a multitude of birth defects. “[The son’s] injuries are personal to him, they are not derivative of [the employee's],” and thus the exclusivity provision did not bar the son from bringing claims against Boeing.

Accordingly, the court affirmed the lower court’s denial of Boeing’s motion to dismiss.

The case is No. 87593-1-1.

Judge: Birk, I.

Attorneys: Brian D. Weinstein (Weinstein Caggiano) and Michael B. Gurien (Waters, Kraus, Paul & Siegel) for Teela Bauer and Thomas Bauer. Linda T. Coberly (Winston & Strawn) and Kristine Elizabeth Kruger (Perkins Coie) for The Boeing Co., Exotic Metals Forming Co. LLC, Giddens Industries, Inc. dba Cadence Aerospace Giddens Operations, Hytek Finishes Co., and Newco, Inc. dba Newco Columbia Distribution Co.

Companies: The Boeing Company; Exotic Metals Forming Co. LLC; Giddens Industries, Inc.; Cadence Aerospace Giddens Operations; Hytek Finishes Co.; Newco, Inc.; Newco Columbia Distribution Co.

Cases: CoverageLiability StateLawClaims TortClaims WashingtonNews GCNNews