By Lian Blake, JHBL Staff Member
Catherine Balsam-Schwaber was eligible for an important media executive position at her company, but she turned down the role.[i] Why would she turn down the opportunity to serve in upper-level management? Balsam-Schwaber was experiencing symptoms associated with the onset of menopause, such as feeling tired and achy, and thought that it would impact her ability to perform the role effectively.[ii]
In other cases, women experience discrimination and/or harassment from employers or others at the workplace. One woman was terminated for heavy menstrual bleeding that accidentally got on a carpet, and another woman was denied a workplace modification to accommodate her menopause symptoms.[iii] Additionally, older women, who may or may not have reached menopause, experience denigrating comments from coworkers relating to menopause or its symptoms.[iv]
Menopause may be caused by certain medical procedures, but most people who experience menopause will do so during their forties or fifties as part of the natural course of aging.[v] The process begins with perimenopause which may take eight to ten years, and include symptoms, such as hot flashes and night sweats, insomnia, and mood changes.[vi] During this time, a person’s hormone levels are changing and their menstrual periods become irregular. Menopause is diagnosed when a person has not had a menstrual period for one year.[vii]
While the effects of menopause symptoms on workplace performance are not commonly discussed, the experience is not uncommon. In a survey, fifty-nine percent of women said that their physical symptoms were the most challenging part of menopause.[viii] Approximately twenty-seven million people in the United States’ workforce are experiencing menopause symptoms and around twenty percent of those people have considered leaving their jobs due to the symptoms.[ix]
Menopause in the workplace deserves more discussion for two reasons. One, the legal pathways available to people who experience menopause are not clear and leads to mixed results. Two, it is a workplace equity and retention issue that would benefit from employers implementing menopause benefit plans for their employees.
The three pathways for a plaintiff to bring a menopause discrimination claim fall under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act, and the Americans with Disabilities Act (“ADA”).[x] Most of these cases are brought under Title VII or the ADA, but plaintiffs may find it challenging to bring a successful claims under these statutes.[xi] To bring a successful claim under Title VII, the sexual harassment must be extreme and severe before a court will find the harassment to create a hostile work environment.[xii] Similarly, the ADA protections are limited because the statute does not state which reproductive functions are protected and courts have not been willing to apply ADA protections “normal” menopause (age induced rather than medically induced).[xiii]
While some people may turn to the legal system to address menopause discrimination, there are others who may not experience workplace discrimination, but still feel the impact of menopause on their workplace productivity. Women who are forty-five and older make up forty-three percent of the female workforce and are the fastest growing sector in the workplace.[xiv] Additionally, people are working later in life than previous generations, resulting in more people working through perimenopause and spending one-third of person’s career occurring after menopause.[xv]
While the portion of the workforce that will experience menopause has increased, a recent survey found that only eight percent of employers in the United States offered menopause benefits.[xvi] Common benefits from the few employers that offer support include work from home opportunities or flexible scheduling, counseling or therapy, medical care, and time off from work.
The lack of support from employers creates an equity and retention issue and has financial costs for employers. Access to benefits, such as flexible work scheduling and access to medical care, will demonstrate that an employer supports its employees and help with workplace retention.[xvii] Additionally, the increased worker retention will save companies money in recruiting and training costs.
The United Kingdom provides a model that the United States could implement to provide more protection under discrimination statutes as well as examples of what employers can do independently to support workers.[xviii] In the United Kingdom, menopause is increasingly viewed as a legal issue in addition to a medical and social one.[xix] In the U.K., the Equality Act prohibits discrimination and harassment for protected classes.[xx] However, the legal approach in the U.K is more inclusive and only requires the harassment to “violate the recipient’s dignity or create an offensive environment.”[xxi] The definition of disability under the Equality Act is also less stringent than the ADA and does not required the impairment to affect major life activities or be abnormal.[xxii]Additionally, many large employers in the U.K acknowledge the importance of menopause in employment and offer benefits.[xxiii]
The United States can and should do better to support its employees working through menopause. Advocates should argue for changes to statutes that would offer clear protection menopausal workers. Employers do not have to wait for legislative orders to support their employees and should create protections for menopause benefit plans that include flexible work hours, access to medical care from specialists, and educational materials.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School
Lian Blake is a second-year day student at Suffolk University Law School. She graduated from University of Massachusetts Boston in 2018 with a degree in Political Science and a Chinese minor.
[i] See The Push for Menopause Benefits, CNBC (Oct. 18, 2022, 8:16 PM) https://www.cnbc.com/video/2022/10/18/women-leaders-leave-workplace-faster-than-ever-and-a-push-for-menopause-benefits.html.
[ii] See id.
[iii] Emily Gold Waldman et. al, Contextualizing Menopause in the Law, 45 Harv. J.L. & Gender 1, 16 (2022).
[iv] Id. 17.
[v] Menopause, Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/21841-menopause (last visited Nov. 11, 2022).
[vi] See id.
[vii] See id.
[viii] Menopause in the Workplace, Carrot (Sep. 27, 2022) https://www.get-carrot.com/blog/menopause-in-the-workplace-a-report-from-carrot-fertility.
[ix] See Matt Gonzales, Menopause: What Employers Need to Know, SHRM (Jul. 6, 2022) https://www.shrm.org/resourcesandtools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/pages/menopause-what-employers-need-to-know.aspx.
[x] See Bridget J. Crawford et. al, Working Through Menopause, 99 Wash. U.L. Rev. 1531, 1551-52 (2022).
[xi] See id. See also Emily Gold Waldman et. al, supra note 3 at 18-23.
[xii] See Crawford et. al, supra note 10 at 18.
[xiii] See id. at 21.
[xiv] The Push for Menopause Benefits, supra note 1.
[xv] See Sarah Carter et. al, Talking About menopause in the Workplace, National Library of Medicine (Apr. 30, 2021) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7995468/.
[xvi] See Menopause in the Workplace, supra note 8.
[xvii] See Sophie Barton, The Menopause at work: Designing supportive spaces, WorkMind (Oct. 2021) https://workinmind.org/2021/12/07/the-menopause-at-work-designing-supportive-spaces/.
[xviii] See Crawford et. al, supra note 10 at 1564-74.
[xix] See Emily Gold Waldman et. al, supra note 3 at 16.
[xx] See Crawford et. al, supra note 10 at 1564.
[xxi] Id. at 1565.
[xxii] See id.
[xxiii] See Crawford et. al, supra note 10 at 1573-74; Cloey Callahan, Why menopause benefits need to become common in workplaces, Worklife (Oct. 21, 2022).