Hot flash, p.11
Hot Flash, page 11
Employment discrimination law, therefore, has a key role to play in ensuring that none of these processes unnecessarily impedes employees’ ability to remain at work. Indeed, the legal protections for pregnancy and breastfeeding can be used as a baseline that the legal treatment of menopause should also meet. The next part explores that issue, before turning to broader questions about how we might raise that baseline for all such processes.
EXTRAPOLATING FROM PREGNANCY AND BREASTFEEDING PROTECTIONS TO MENOPAUSE
In measuring how employment discrimination law’s treatment of menopause differs from its treatment of pregnancy and breastfeeding, it is helpful to return to the three basic categories of menopause discrimination cases discussed in Chapter 4: those involving (1) harassment or discrimination based on menopausal status; (2) punishment for menopausal symptoms; and (3) accommodation refusals for menopausal symptoms. Doing so helps highlight where the law’s current treatment of menopause is lacking, as well as where there are particular needs for workplace change.
Menopausal Status. With respect to status-based harassment, there is not much difference—at least on the face of employment discrimination law—between the treatment of menopause-based harassment, pregnancy-based harassment, breastfeeding-based harassment, and other forms of sexual harassment. In all such instances, a “hostile work environment” claim of sex discrimination can be brought under Title VII. Such a claim would only be successful, though, when the harassment was severe or pervasive enough to change the very terms and conditions of employment. This high bar is not mandated by Title VII itself, which simply states that discrimination on the basis of sex is unlawful. Rather, it comes from Supreme Court precedent: the 1986 decision in Meritor Savings Bank v. Vinson.25
The most helpful legal change here would be a lowering of this steep threshold for harassment claims. That could happen either legislatively—akin to Congress’s passage of the Pregnancy Discrimination Act in response to a Supreme Court interpretation of Title VII—or through the Supreme Court’s reexamination of its prior precedents. Additionally, nothing prevents states or municipalities from adopting lower thresholds for what counts as actionable sexual harassment under their own employment discrimination laws. Indeed, New York State passed legislation in 2019 that makes harassment legally actionable in the state whenever it subjects an individual to inferior terms, conditions, or privileges of employment.26 Essentially, any harassment that goes beyond “petty slights or trivial inconveniences” is illegal under New York law; it need not be “severe or pervasive.”
Moreover, even without legal change, more could be done to raise awareness about menopausal harassment. As Chapter 4 describes, menopause-based harassment often intertwines aspects of sex-based, age-based, and disability-based harassment. In this way, it differs from more commonly recognized forms of sexual harassment, such as groping, repeated unrequited romantic advances, or lewd comments and pictures. The New York City Human Rights Commission, for example, developed a free online “Sexual Harassment Prevention Training” that employers can use to fulfill the city’s requirement of providing annual sexual harassment trainings to employees.27 The training video includes numerous skits dramatizing various forms of sexual harassment, such as a supervisor’s threat to fire a subordinate who does not have sex with him, or a practice of holding work social gatherings at a strip club. But there is little focus on harassment connected to reproductive processes other than one skit. That skit involves a breastfeeding employee who receives suggestive comments when she takes a break to pump milk, like “How about you do one, and I’ll do the other?” The training goes on to state that “offensive comments about pregnancy or breastfeeding are sexual harassment,” but does not mention menstruation or menopause.
By including menopause-based harassment in sexual harassment training programs for employees, employers can raise awareness of this phenomenon—and, more broadly, challenge the silence around menopause itself. Indeed, one of the key recommendations offered by the European Menopause and Andropause Society in its 2021 “Global Consensus Recommendations on Menopause in the Workplace” is that employers and organizations should communicate a “zero-tolerance policy to bullying, harassment, victimization, or belittling of women with menopause symptoms,”28 as many U.K. menopause policies now do. Bank of America’s 2023 Break Through the Stigma: Menopause in the Workplace report likewise encouraged employers to “talk about menopause openly and often to help increase awareness and understanding of menopause and create a culture of caring.”29
Menopausal Symptoms. In contrast to harassment, there is a clear disparity between the law’s approach to menopausal symptoms and its approach to manifestations of pregnancy and breastfeeding. As noted above, the Pregnancy Discrimination Act specifically amended Title VII in 1978 to state that discrimination on the basis of pregnancy or related conditions is actionable sex discrimination. A pregnant employee who was fired because her water broke and she went into labor at work, or a breastfeeding employee who was fired for leaking milk, would therefore have a very clear sex discrimination claim.
That is not true for menopause. Recall that when Alisha Coleman’s employer fired her for her unexpected perimenopausal bleeding, the federal district court accepted her employer’s argument that this was not sex discrimination but merely a termination for “failing to maintain high standards of personal hygiene.” Title VII certainly does not require that illogical result, as a different federal district court later recognized.30 But this is an area where Title VII’s silence about menopause (and menstruation), as compared to its explicit references to pregnancy and childbirth, has created legal confusion. More clarity here would be helpful, whether from courts, Congress, or agency guidance.
Accommodations. The gulf between the law’s treatment of menopause on the one hand, and pregnancy and breastfeeding on the other, widens even further when it comes to accommodation mandates. Thanks to the 2022 passage of the PWFA and the PUMP Act, the workplace accommodation requirements for pregnancy and breastfeeding are now quite strong. But no such legislation requires accommodation of menopausal symptoms. Given the years that it took for the PWFA to become law, it seems unlikely that a parallel act for menopause will be passed in the near future, although that would certainly be one solution.
In the meantime, the EEOC could issue “best practice” guidelines for employers about how to address menopause in the workplace. Indeed, just as the U.S. Education Department’s Office of Civil Rights has encouraged schools to go beyond legal mandates in supporting pregnant and parenting students—for instance, by designating lactation rooms for students and reaching out to “pregnant and parenting students who have dropped out of school and encourag[ing] them to return”31—the EEOC could encourage employers to proactively support menopausal employees.
As a starting point, the EEOC could advise employers to consider having a clear menopause policy—which, as Bank of America’s Break Through the Stigma: Menopause in the Workplace report found, is the most commonly identified “menopause benefit” that employees want. The EEOC could then offer concrete suggestions for what such a policy might include. Here, the menopause policies from the U.K.’s private sector—along with the menopause guidance furnished by Acas (the U.K. entity that offers workplace guidance and mediation services)—provide useful examples, from climate-controlled break spaces, to dress codes that incorporate short-sleeve options, to flexible scheduling. Even though such EEOC guidance would not be mandatory for employers to follow, it would further challenge menopausal silence and help push forward workplace discussions.
Additionally, the ADA remains a potential source of accommodation mandates for menopause, at least in the case of significant symptoms. The first step is for the EEOC to revisit its 2015 “Pregnancy and Related Issues” guidance, in which it stated that pregnancy “is never on its own a disability,” but that “some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA.”32 The PWFA, which covers all pregnancies, has now rendered that guidance largely irrelevant to pregnant employees. But the guidance remains a problematic precedent for menopausal employees, who are still reliant on the ADA. As Chapter 4 explains, courts have used this guidance to hold that only “abnormal” menopause—that is, early surgical menopause—can be covered by the ADA.
The notion that menopause cannot be a disability for purposes of the ADA, unless it is “abnormal” in origin, is misguided. The ADA makes no reference at all to “normal” versus “abnormal” conditions. Rather, its text focuses on whether there is a substantial limitation of a major life activity. Even “normal” symptoms of menopause, such as hot flashes, can be significant enough to interfere with work, and should thus qualify for protection under the ADA standard.
Relatedly, as journalist Maya Dusenbery observes in Doing Harm,33 the very notion of viewing reproductive processes in terms of “normality” has sexist undertones. As she puts it: “either women’s reproductive functions are pathologized as innately abnormal—in which case any symptoms they bring are ‘normal’—or else it is claimed that they’re normal, so if they cause symptoms, it’s only because an individual woman’s response to them is abnormal—she’s just especially sensitive or overreacting.”
Dusenbery’s focus is on the medical system, but her critique also applies to law. Menopausal symptoms that rise to the level of interfering with work should be reasonably accommodated, regardless of how “normal” they are. In connection with “best practices” guidelines regarding menopause, the EEOC should issue specific guidance that rejects the idea of an abnormal/normal binary. Such guidance would be consistent with the ADA’s definition of disability, which does not include a prerequisite of “abnormality.”34
BROADER WORKPLACE SOLUTIONS
The above discussion has focused on menopause-specific approaches, in part by considering how the law’s treatment of menopause could be put on the same footing with its treatment of pregnancy and breastfeeding. Ultimately, however, the best solutions would be more systemic in nature.
Indeed, disability theory articulates two models for framing difference.35 The first and more traditional model is the medical model, under which the analysis centers on whether the employee is impaired enough that the employer must provide accommodations within a workplace that is otherwise inhospitable. The second is a social model, which conceptualizes disability as constructed in the interaction between the workplace and the individual employee. The social model helps us see that challenges of menopause can be exacerbated precisely because workplaces are inhospitable, designed without taking menopause into account—for example, by not offering climate-controlled spaces or flexible dress code policies. Under the social model, the ultimate goal is not necessarily one-off accommodations for specific employees, but rather the redesign of the workplace environment to ensure integration for all.
Indeed, in the context of reproductive processes, the shared symptoms cutting across pregnancy, breastfeeding, menstruation, and menopause point toward overlapping workplace solutions that go beyond one-off accommodations. Hot flashes, for instances, occur not only during menopause, but also during pregnancy—due in both cases to significant hormonal shifts, particularly with estrogen.36 Migraine headaches, too, are often linked to the hormonal changes associated with menopause, first-trimester pregnancy, and various stages within the menstrual cycle.37
Similar psychological symptoms, particularly those relating to depression and anxiety, are common across these processes as well. Indeed, psychiatrists Laura Miller, Christina Girgis, and Renu Gupta have explained that although “most women do not develop depressive symptoms during reproductive transition,” the “evidence is accumulating to support the hypothesis that some women have a heightened vulnerability to emotional disturbance at a time of rapid hormonal flux.”38 Premenstrual dysphoric disorder and depression (PMDD), perinatal depression, postpartum depression, and perimenopausal depression all exemplify this phenomenon. So do anxiety disorders that start or worsen in connection with these hormonal shifts.39
Sleep deprivation is another common effect of pregnancy, menstruation, menopause, and breastfeeding. For pregnancy, menstruation, and menopause, this typically stems from the physical and psychological effects of hormonal shifts, back pain, and/or middle-of-the-night bathroom visits due to menstrual bleeding or frequent urination. For breastfeeding, it additionally stems from the concrete need to feed or pump in the middle of the night.
These common symptoms and effects indicate the potential for broadly applicable workplace adjustments. Workplace temperature control—particularly access to cool spaces—is one clear need that cuts across reproductive processes. Flexibility on dress codes and uniforms is another obvious solution, to address not only hot flashes but also varying needs for expandable waistbands, nursing-friendly tops, and stain-concealing bottoms. Extra bathroom access and break time, too, is important for those who are pregnant, menstruating, or going through perimenopause, in terms of both frequent urination (especially in the first and third trimesters of pregnancy) and potentially heavy menstrual bleeding. Relatedly, breaks for pumping are clearly essential for breastfeeding employees. Sleep deprivation similarly raises the need for break times, as well as for flexible schedules.
The fact that the PWFA and PUMP Act now require employers to implement these sorts of workplace changes as reasonable accommodations for pregnant and breastfeeding employees may well have beneficial spillover effects for menstruation and menopause as well. Once an employer is allowing pregnant employees to wear short-sleeve shirts to avoid overheating, for instance, it may become harder (at least practically, if not legally) for an employer to refuse the identical request from a menopausal employee who is experiencing hot flashes. After all, the notion of a uniform dress code for all has already been breached. Similarly, once an employer goes to the effort of developing a new flexible scheduling or break policy for pregnant and breastfeeding employees, it may not be as burdensome to fold additional employees into it.
While one approach is for employers to offer these sorts of changes on an as-needed basis, upon individual request, there are numerous benefits to making them available more generally, beyond those who disclose their pregnancy and breastfeeding—or, indeed, their other reproduction-related conditions—to their employer. Many people have physiological needs, unrelated to reproductive processes, that require cooler temperatures, dress code modifications, or regular bathroom breaks. Flexible schedules and remote options, too, tend to be widely desired.
Indeed, just as it is helpful to contextualize menopause among the other reproductive processes, it is also helpful to contextualize and broaden the very concept of workplace accommodations. Specific, one-off accommodations put the burden on the individual employee to request those accommodations. They can also make that employee stand out as “different,” which is problematic for both individual and workplace morale. Transitioning to flexible policies that are more broadly applicable not only address such privacy concerns, but also reduce the potential for resentment about “special treatment” for certain employees.
Indeed, in a comprehensive study evaluating U. S. attitudes about the related topic of menstrual leave, researchers Jessica Barnack-Tavlaris, Kristina Hansen, Rachel Levitt, and Michelle Reno found that participants had predominantly negative reactions to the idea of such leave, particularly because of concern about unfairness to other employees.40 Barnack-Tavlaris and Levitt thus suggest, in a subsequent work, that more effective strategies involve broadly applicable workplace policies that provide greater flexibility, as well as the reevaluation of “attitudes surrounding absenteeism and work ethic.”41
In other words, it is the workplace that should itself change, as opposed to change that occurs on an ad hoc basis, one worker at a time. In addition to beneficial effects on workplace camaraderie, such policies may well have widespread appeal that boosts recruitment and retention.
In a 2021 New York Times opinion piece entitled What If Disability Rights Were for Everyone?, disability activist Ari Ne’eman traced the way that legal mandates and workplace culture build upon themselves and each other.42 Ne’eman observed that although “[p]regnancy is not a disability under the A.D.A. . . . disability law has inspired a more expansive vision of workplace rights,” leading to the passage of the PWFA. This observation suggests the possibility of future change: as Ne’eman puts it, “Can a movement born to address discrimination against a particular minority evolve into something greater—a larger push for rights for all?” This framing, of course, echoes and extends the social model of disability discussed above, whereby the individual and workplace are viewed in a more interactive, mutually constitutive way.
To be sure, legal mandates that require all employers to become broadly “accommodating”—as opposed to mandates that require “accommodations” for a potentially broadening pool of eligible employees—remain unlikely. That said, as the U.K. menopause policies illustrate, once the dialogue gets started, employers sometimes go beyond the minimum required by law. And the COVID-19 pandemic has opened the door to a reimagining of the workplace in numerous ways, particularly in terms of greater flexibility about where and when work gets done by some employees. Between the increased cultural visibility of menopause, the rise of workplace menopause policies, the new accommodation entitlements for pregnancy and breastfeeding, and the increased availability of remote work, we may well be at an inflection point whereby working through menopause—something that millions of employees already do—becomes more common and less challenging.
