MENOPAUSAL DISCRIMINATION IS LEGAL, BUT…   

Virtually all the case law holds that discrimination against employees because they are in their menopausal period of life is not illegal. But it is normally ILLEGAL to discriminate based on  someone suffering the effects of menopause. This becomes even more significant when you realize, as one association notes, statistics  “show that nearly 1 in 4 menopausal employees suffer from severe menopause-related symptoms that impact their ability to work. “

Among the commonly recognized effects of menopause are the following.

• Needing to take time off work at very short notice (for example if you haven’t slept well the night before or because you have a migraine)
• Finding it harder to get to work on time
• Needing more breaks, or extended breaks
• Struggling to stick to rigid shift or working patterns
• Lacking concentration and/or forgetting things
• Finding yourself being less patient with people, or becoming irritated more easily
• Suddenly finding your working environment less comfortable (for instance if you’re suffering from hot flushes, daytime sweats or headaches)
• Lacking self-confidence
• Suffering from low mood, anxiety or stress
• Hot flashes
• Night sweats
• Extreme fatigue
• Panic attacks
• Headaches
• Dizziness
• Joint pain and muscle stiffness
• Mood changes
• Memory lapses
• Brain fog

Imagine a manager taking action against an employee because of one of these effects, e.g., lowering an evaluation because the employee seems less patient with others, or takes unannounced sick leave, or shows a sudden inability to meet deadlines.  The following laws and related regulations might provide the help the employee needs.

The Americans With Disabilities Act and Rehabilitation Act require that an employer provide reasonable accommodations if an employee is suffering a disability. Common accommodations for those suffering menopause are:

• Flexible working arrangements (remote work, adjusted hours)
• Workplace adjustments (temperature control, uniform modifications)
• Rest areas and access to cold drinking water
• Flexible sickness absence policies for menopause-related absence
• Adjusting workload and providing mental health support
• Moving your desk or workstation to be closer to the toilets
• Providing a quiet space where you can rest
• Moving your desk or workstation to give you better access to natural light or ventilation (or providing you with a fan).

Beyond the obligation to provide a reasonable accommodation, it would likely violate those laws if the employer took action against an employee for behavior that can be attributed to an effect of menopause. Click here for the web site of a law firm devoted to women’s rights for more details on how to set up support a disability claim. If you look you will find other firms around the country that are willing to step up for women suffering from menopause.

Another statute that should help is the Family Medical Leave Act.  It can be used to ask that the employee be allowed to take repeated unplanned leave when the symptoms arise.

As we said at the beginning of this post, there is little case law holding that discriminating against an employee because she is menopausal is illegal. But that is probably due to the lack of a factual situation squarely on point. If management refused to promote an employee simply because she was menopausal, it is hard to imagine that would not be gender and/or age discrimination. If you are filing a case based on discrimination linked to the effects of menopause, think about also alleging discrimination based on menopause.  At worst, the allegation is rejected. At best, it is upheld and that might open the door to additional remedies for the employee. The only case we could find that did uphold charges based on mistreatment of a menopausal woman was Cruz-Aponte, et al., v. Caribbean Petroleum Corporation, et al., 123 F.Supp.3d 276 (2015). For those interested in expanding the use of the law to protect women, we suggest a very thought article in the Harvard Review of Law & Gender entitled, “Contextualizing Menopause In The Law”  and particularly the section “Three Categories of Menopause-Related Employment Discrimination.”

What should unions do with this issue?  Unless they only have men in their bargaining unit, they should let the membership know that the union can help if they are suffering the effects of menopause to the point that it is impacting their jobs.  Identify an understanding union rep, probably another woman, who female members can contact privately for help.  A third step would be to raise this issue with management. A union could ask to negotiate an agreement making it easier for women to get accommodations and consideration for the impact on them. Forbes Magazine wrote a piece entitled “What Employers Should Know About Menopause Discrimination” that should provide a foundation for that conversation.

It could also ask that the agency alert and train managers to recognize and adjust to these situations.