WORKING THROUGH MENOPAUSE.

• Author: Crawford, Bridget J.

ABSTRACT

There are over thirty million people ages forty-four to fifty-five in the civilian labor force in the United States, but the law and legal scholarship are largely silent about a health condition that approximately half of those workers will inevitably experience. Both in the United States and elsewhere, menopause remains mostly a taboo topic because of cultural stigmas and attitudes about aging and gender. Yet menopause raises critical issues at the intersections of gender equity, disability, aging, transgender rights, and reproductive justice. This Article imagines how the law would change if it accounted for menopause and the associated unequal burdens imposed.

This Article makes four contributions to legal scholarship. First, it identifies the intersections of menopause and the law in a way that counters the larger culture of silence, stigma, and shame. Second, it analyzes the uneasy fit between menopause and existing U.S. antidiscrimination doctrines. Third, the Article uses a comparative lens to explore how and why menopause is becoming a priority issue for the government, private employers, and workers in the United Kingdom. Finally, the Article situates menopause in U.S. equality jurisprudence broadly and suggests a place for menopause in employment law in particular. It sets out a normative vision for menopause equity in the workplace and suggests possible pathways for achieving it.

INTRODUCTION I. AN OVERVIEW OF MENOPAUSE A. Biology and Terminology B. Symptoms and Treatment C. Perceptions 1545 D. Subjective Experiences II. MENOPAUSE'S UNEASY FIT WITHIN U.S. ANTIDISCRIMINATION LAW A. Overview of Applicable Antidiscrimination Laws B. Discrimination/Harassment Based on Menopausal Stereotypes 1. Discriminatory Motives 2. Hostile Work Environments C. Discrimination Based on Menopausal Symptoms D. Discrimination Based on Disability/Failure to Provide Accommodations III. LESSONS FROM THE UNITED KINGDOM A. Applicable U.K. Law and Cases 1. Harassment/Discrimination 2. Disability B. Government Initiatives C. Developments Outside of Government IV. THEORIZING MENOPAUSE EQUITY A. Feminism 1. Methods 2. Goals B. Menstrual Equity C. Disability D. Queer and Trans Theory E. Aging F. Intersectionality V. DIRECTIONS FOR UNITED STATES LAW CONCLUSION 1590 INTRODUCTION

Flexible work schedules. Desk fans. Access to a quiet and cold room. Paid leave when unable to work. These are not the practices of a fictional company or even a Silicon Valley start-up technology company firm. (1) They are features of a formal "menopause policy" adopted in October 2019 by the British television station Channel 4. (2) No formal law in the United Kingdom requires employers to address menopause, (3) but tribunals there have taken a broad view of discrimination that includes treating a worker unfairly due to menopause. (4) There is now national-level attention, especially in Scotland and England, directed toward menopause-related issues in the workplace. (5)

By contrast, U.S. legal discourse remains mostly silent about menopause, a stage of life that approximately half the population will experience. (6) There have been relatively few U.S. cases involving alleged discrimination on the basis of menopause, and even fewer in which the plaintiff has prevailed; menopause fits uneasily into existing U.S. legal models for addressing discrimination. (7) There has also been little attention to this issue by employers or human resources professionals in the United States, and menopause has only just begun to receive real attention in national popular publications. (8)

The legal silence surrounding menopause may initially seem surprising, given that menstruation itself has gained new prominence in popular and legal discourse. Grassroots organizing, legislative initiatives, and even class action litigation have taken aim at issues like the tampon tax; (9) period poverty; (10) and the lack of menstrual products in many schools, (11) jails, (12) and other public facilities. (13) Moreover, reproductive issues appear frequently on the Supreme Court's docket and in the scholarly literature. (14)

But in other ways, the specific silence around menopause is not surprising at all. The continued absence of real discussion about (and scholarly attention to) menopause suggests its persistent status as a taboo topic, arising from not only discomfort with frank talk about bodily functions, but also stigmas around aging. To the extent that menopause is even discussed in public, its most well-known symptoms, like hot flashes, usually are fodder for jokes, caricature, ridicule, or derision.

This Article assesses menopause as a unique site for intersectional discrimination on the basis of identity axes, including sex, gender, age, and disability. (15) Accordingly, the Article counters the culture of silence, stigma, and shame that typically surrounds the subject, showing how that culture provides a partial explanation for the paucity of legal approaches. The Article also reveals gaps in U.S. antidiscrimination laws, showing how menopause illustrates long-running tensions in the scope of employment discrimination laws. But those tensions, and the lack of legal recourse for most menopausal employees, are not inevitable. The Article uses a comparative perspective to demonstrate how the United Kingdom's different legal approach not only has led to successful discrimination claims by individual menopausal employees but also has sparked broader attention to best workplace practices. Finally, the Article locates the discussion of menopause in the larger are of U.S. equality jurisprudence and the continued debates about how to take account of biological differences. In concluding that the law has various options for addressing menopause-related inequities, the Article has broader implications for the shape and interpretation of antidiscrimination theories, too.

Part I of the Article provides a brief overview of menopause, discussing its biology and symptoms, as well as the stereotypes about it. Part II turns to existing U.S. employment law, demonstrating that even though sex, age, and disability are each legally protected characteristics, employees going through menopause--which implicates aspects of all three categories--often find themselves without recourse. In particular, while U.S. antidiscrimination law provides a relatively clear framework for analyzing cases stemming from negative stereotypes about menopause, cases involving menopausal symptoms have a less obvious trajectory. This is particularly true for cases involving "normal" menopausal symptoms that, without any workplace adjustments or accommodations, have the potential to interfere with workplace performance.

Part III provides a comparative perspective, looking to the United Kingdom. Although the (U.K.) Equality Act 2010 does not specifically address menopause, a growing body of U.K. case law applies that Act broadly in deciding what it means to treat menopausal employees equally. (16) That case law, in turn, has prompted supervisors, human relations professionals, employment law practitioners, and even government entities to think more seriously about formulating policies that enable employees to work through menopause.

Part IV turns to a more theoretical consideration of how issues at the intersection of gender, menopause, aging, and disability fit into, challenge, or complicate existing legal theories. A focus on menopause at work raises familiar jurisprudential tensions between sameness and difference. In one sense, it seems axiomatic that all people should receive equal treatment under the law, without regard to biology. In another sense, though, this Article's discussion of menopause demonstrates how the failure to take into account biological differences can be an obstacle to success at work, and how the U.S. binary between "normal conditions" and "disabilities" is overly reductive, particularly as applied to menopause. Workplace policies that assume, often unconsciously, that the baseline employee is a cisgender man can end up putting other employees at a disadvantage by making the workplace inhospitable.

Part V suggests multiple ways the law might better address menopause and promote true workplace equity. The Article concludes by identifying related intersections of menopause and law that merit further inquiry.

1. AN OVERVIEW OF MENOPAUSE

   In a 1972 episode of the popular television sitcom All in the Family, Edith Bunker experiences mood swings and hot flashes, to the bewilderment of the men in her family. Archie, her impatient and bullying husband, has no sympathy for Edith's condition, exhorting her, "If you're gonna have the change of life, you gotta do it right now! I'm gonna give you just 30 seconds. Now, c'mon and change!" (17) Edith blithely responds, "Can I finish my soup first?" (18) As one critic has remarked about this particular episode of the show, "It was a big deal to see the topic [of menopause] out in the open on television, as menopause was kept hush hush in the public eye. But All in the Family took a sledgehammer to that social barrier and the episode will live on forever because of it." (19) That award-winning episode made visible to a wide audience the most stereotypical symptoms of menopause. (20)

   Beyond the symptoms that were played for laughs in the episode of All in the Family in 1972, (21) menopause is a complex and highly variable process. To provide context for our later analysis, this Part begins with an overview of the basic biology and symptoms of perimenopause and menopause. (22) For some people, "the change" comes and goes without much notice, but for others, the symptoms can be mentally and physically debilitating for a lengthy period of time--and, of course, there are many variations along that spectrum. (23) This Part then explores the culture of stigma and shame around menopause and considers the ways that negative stereotypes affect how...