MENSTRUATION DISCRIMINATION AND THE PROBLEM OF SHADOW PRECEDENTS.

• Author: Widiss, Deborah A.
• Position: Symposium Conference: Are You There Law? It's Me, Menstruation

The burgeoning menstrual justice movement highlights that women, girls, transgender men and boys, and non-binary persons may face discrimination or harassment due to their menstruation in workplaces, schools, prisons, and many other aspects of life. (1) In recent years, a few courts have suggested such discrimination may violate Title VII, the federal law that prohibits sex discrimination in employment. (2) Their analysis focuses on the Pregnancy Discrimination Act (PDA), an amendment to Title VII passed in response to a Supreme Court case holding that pregnancy discrimination was not sex discrimination. The PDA overrode the decision by explicitly defining sex as including "pregnancy, childbirth, or related medical conditions." (3)

The menstruation discrimination cases thus implicate more general questions of how statutory overrides should be interpreted, a subject I've explored extensively in prior work. (4) My research suggests that this nascent litigation campaign may face two distinct challenges. The first is that courts will simply deny the claims, reasoning that menstruation is not directly addressed by the text of the PDA and therefore should not be recognized as sex discrimination. The second--which is more subtle, and also perhaps more likely--is that courts could find such discrimination to be actionable, but do so relying solely on the PDA's explicit reference to "medical conditions" related to pregnancy. While that would be helpful for addressing discrimination in workplaces, it could open the door to arguments that menstruation is outside the ambit of sex discrimination laws that were not amended in a manner analogous to how Title VII was amended.

To avoid these potential risks, theorists and advocates should seek to establish that menstruation discrimination is discrimination on the basis of "sex" itself, in that it is a condition linked to female reproductive organs and associated with stereotypes about women's inferiority. That reasoning, which suggests that the PDA is properly interpreted as signaling Congress's disapproval with the Supreme Court's unduly narrow understanding of what constitutes sex discrimination in the earlier pregnancy case, should apply not only to Title VII, but also to the interpretation of statutory and regulatory prohibitions on sex discrimination in non-employment contexts.

1. Overrides and Shadow Precedents

   Under our tripartite system of government, Congress has ultimate authority over the meaning of statutory law. If Congress disagrees with a judicial interpretation of a statute, it can amend the statute, or enact a new statute, to supersede the judicial decision. This is known as enacting an "override." Although often described as the equivalent to a judicial overruling, overrides tend to be far less effective at ending reliance on the prior precedent. (5) This is partially because courts may not even realize an override has been enacted, as Lexis and Westlaw are often slow to flag overrides. (6)

   Even when courts are aware of the change in the law, however, overrides can pose difficult interpretive questions. This plays out along two "vectors." The first is whether and how enactment of the override changes interpretation of the preexisting language in the statute actually amended. Overrides are often written relatively narrowly to respond to a particular judicial decision. When faced with a new factual scenario that is similar to the issue addressed in a precedential case--but arguably not addressed by the language of the override--courts must determine whether the rationales expressed in the prior decision continue to control. My prior research shows that in these instances courts often continue to rely on overridden precedents, or what I've called "shadow precedents." (7)

   The second set of interpretive challenges is whether and how enactment of an override affects interpretation of language in other statutes that include similar language to the language interpreted in the overridden decision, but that were not themselves amended. In the employment discrimination context, this has led to extensive litigation over what causation standard applies to various statutes, because Congress responded to a Supreme Court decision on point by amending Title VII but did not amend other statutes modeled on Title VII. In several recent cases, the Supreme Court has held that Congress must have therefore "intended" a different causation standard to apply to these other statutes. (8) While I have argued this inference is unwarranted, (9) it is now firmly established in Supreme Court precedent.

   In earlier writing, I've suggested that reliance on overridden precedents is frequently improper. I've proposed that courts should adopt a rebuttable presumption that preexisting language in a statute that is subject to an override, and similar language in other statutes, should be interpreted in line with the meaning Congress signals it prefers. (10) However, as discussed in the parts that follow, advocates can also structure litigation to minimize the problem.

2. Gilbert, the Pregnancy Discrimination Act, and Sex-Based Conditions

   Cases challenging discrimination based on menstruation build on fifty years of litigation and legislation addressing pregnancy discrimination...