Washington Court Of Appeals Recognizes Employer Duty To Employee’s Future Child In Preconception Exposure Case

In Bauer v. Boeing Co., 590 P.3d 720 (Div. 1 2026), the court held that an employee’s not-yet-conceived child may pursue a negligence claim for alleged birth defects tied to workplace chemical exposure—but the case remains at the pleading stage and is now the subject of a petition for Supreme Court review. If reviewed and upheld by the Supreme Court, the holding has significant implications for employers across Washington State.

The decision: a new Washington ruling on preconception workplace exposure.

A recently published Washington Court of Appeals decision, Bauer v. Boeing Co., 590 P.3d 720 (Div. 1 2026), addresses an unusual but potentially significant question: can an employee’s not-yet-conceived child later bring a negligence claim against the employee’s employer for birth defects allegedly caused by preconception workplace chemical exposure?

The Court of Appeals answered yes—at least at the pleading stage. It held that, at least where the injury was “foreseeable,” an employer may owe a duty of reasonable care to an employee’s not-yet-conceived child. It also held that Washington’s Industrial Insurance Act did not bar the child’s claim if the child suffered a separate injury of his own. The case is not over: Boeing has petitioned the Washington Supreme Court to review and reverse the decision.

Significance of the Bauer decision.

The decision is legally significant for at least three reasons.

First, it applies Washington tort law to the workplace preconception/exposure context and outside medical malpractice. Courts have long wrestled with prenatal injury claims, but this case goes a step earlier: alleged workplace exposure to a parent before conception. The Court of Appeals treated that timing as important but not dispositive.

Second, the decision limits an employer’s workers’ compensation exclusivity defense in this specific setting, where the child alleges a separate physical injury of his own. Employers usually expect that workplace-injury claims by employees will be handled through the workers’ compensation system. But Bauer allows a child’s independent tort claim to proceed where the child alleges a separate injury, even if the causal chain begins with the employee-parent’s workplace exposure.

Third, the case may affect Washington’s toxic-tort litigation involving alleged reproductive hazards. The ruling may give plaintiffs a pathway to allege that employers had a duty to warn, train, monitor, ventilate, provide protective equipment, or otherwise reduce workplace exposures not only to protect employees, but also to protect future children allegedly placed at risk by those exposures.

The alleged facts.

The plaintiffs are Mr. and Ms. Bauer and their son. Mr. Bauer worked as an electrical installer at Boeing’s Everett, Washington facility beginning in 2011. The Bauers allege that Mr. Bauer was regularly exposed at work to a mixture of chemicals—including volatile organic solvents and heavy metals—that could damage sperm or otherwise impair conception and pregnancy. They further allege that after Mr. Bauer’s workplace exposures, he and his wife conceived their son, who was born in 2017 with serious congenital conditions.

The Bauers alleged that the risks were knowable. According to the complaint, medical literature had reported links between paternal workplace chemical exposures and birth defects for decades, Washington had published reproductive-hazard guidance addressing male preconception exposure, and Boeing’s own toxicologists had monitored research on chemically induced birth defects. The complaint also alleged Boeing was aware no later than 1984 that paternal workplace chemical exposure could cause birth defects.

At this stage, those facts have not been proven. The case reached the Court of Appeals on Boeing’s motion to dismiss under CR 12(b)(6), meaning the court had to assume the complaint’s factual allegations were true and decide whether the law could permit the claim to proceed.

The procedural posture.

Boeing moved to dismiss the claims brought on behalf of the Bauers’ son, arguing that it owed no legal duty to a child who had not yet been conceived when the alleged workplace exposure occurred. Boeing also argued that any claim was barred by Washington’s Industrial Insurance Act because the alleged harm flowed from Mr. Bauer’s workplace injury or occupational disease. The trial court denied Boeing’s motion and certified two legal questions for discretionary review: whether Washington recognizes an employer’s “preconception” duty to an employee’s not-yet-conceived child, and whether the Industrial Insurance Act bars such a claim.

The Court of Appeals affirmed the denial of dismissal.

The Court’s first holding: a preconception tort duty may exist.

The Court of Appeals held that Washington law can recognize a duty owed to a person who has not yet been conceived when the defendant acted negligently. The Court relied heavily on Harbeson v. Parke-Davis, 98 Wn.2d 460, 656 P.2d 483 (1983), a Washington Supreme Court case involving alleged negligent medical advice before conception, and rejected Boeing’s argument that such duties are limited to reproductive-healthcare malpractice cases.

The Court framed the issue as one of ordinary negligence: whether Boeing owed a duty of reasonable care and whether the Bauers’ son was a foreseeable plaintiff. The Court concluded that, if Boeing’s conduct created a foreseeable risk that workplace chemicals could injure employees’ future children, Washington negligence law could recognize a duty to those children. The court emphasized that the duty was not limitless; it was bounded by foreseeability and, as the court described it, by the employee’s immediate offspring.

Importantly, the Court did not hold that Boeing is liable. It held only that Washington law does not automatically prevent the Bauers’ son from trying to prove liability merely because he had not yet been conceived when the alleged negligent exposure occurred.

The Court’s second holding: workers’ compensation exclusivity did not bar the Bauers’ son’s separate injury claim.

Boeing’s second argument was that the case belonged within Washington’s workers’ compensation system, not in a civil tort suit. Washington’s Industrial Insurance Act generally replaces employee lawsuits against employers for workplace injuries with a no-fault compensation system. Boeing argued that the Bauers’ son’s alleged injuries were derivative of Mr. Bauer’s workplace injury and therefore barred.

The Court of Appeals disagreed. It relied on Meyer v. Burger King, 144 Wn.2d 160, 26 P.3d 925 (2001), a Washington Supreme Court case holding that a child’s prenatal injury was not barred by the mother’s workers’ compensation exclusivity even though the injury occurred in connection with the mother’s workplace accident. Applying that reasoning, the Court of Appeals held that Mr. Bauer’s alleged injury was damage to his reproductive system, while his son’s alleged injury was his own set of birth defects. The court treated those as causally related but legally separate injuries.

That distinction is central. If the Bauers’ son’s claim were merely a claim for damages resulting from Mr. Bauer’s injury—like a spouse’s loss-of-consortium claim—it likely would be barred. But because their son allegedly suffered his own physical injury, the court held that the Industrial Insurance Act did not eliminate his claim.

What comes next.

For now, Bauer is a pleading-stage decision, not a finding that Boeing is liable or that the alleged exposure caused the Bauers’ son’s injuries. But unless and until the Washington Supreme Court intervenes, the decision gives plaintiffs a pathway to plead preconception workplace-exposure claims where they can allege foreseeability, a separate injury to the child, and a causal link between the workplace exposure and that injury.

Employers facing potential reproductive-hazard issues should watch the case closely. The decision may affect how Washington courts evaluate workplace warnings, protective equipment, exposure monitoring, and training where alleged chemical exposures could pose risks not only to employees, but also to their future children.