US labor law has come a long way from the “menopause defense"—but now it needs to catch up

While American employers are providing new benefits to workers experiencing menopause, the law leaves them at risk.
Time to keep up.
Time to keep up.
Photo: Kim Kyung Hoon (Reuters)
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Companies have started to support their workers with extensive reproductive health benefits, prioritizing perks like in vitro fertilization, egg freezing, lactation services, and fertility counseling. And thanks to the popularity of these additions, employers are trying a new kind of reproductive benefit: support for menopause, like hormone therapies and in-office cooling stations.

With employees working longer and the workforce getting older, experts say, workplaces serious about supporting pregnancy should also be supporting menopause. But while some employers are considering new benefits for workers experiencing menopause, labor laws have yet to catch up, especially in the US, and workers may be left vulnerable to discrimination.

Women say they need more menopause support at work

64% of American women aged 40–65 say they want their employer to offer menopause benefits, like coverage for hormone replacement therapy, access to menopause healthcare providers, menopause awareness sessions, and cooling rooms, according to a Bank of America–Ipsos poll conducted earlier this year. More than half of US women who have access to benefits like these say it positively affects their work, and 13% say it improves their ability to get promoted within the company.

But menopause-related health benefits still are not the norm. According to a survey by health consultancy Mercer, just 4% of employers in the US say they plan to offer some kind of menopause support in 2023. That matters when the share of workers experiencing symptoms of menopause and perimenopause is growing. People are working longer and retiring later, or even returning to the workforce post-retirement. In just five years, over 25% of the US workforce will be 55 or older.

More than half of American women say they find menopause symptoms challenging. Some report symptoms so severe that they consider reducing their hours or leaving the workforce altogether: One in five women have thought about leaving their jobs or retiring early because they don’t get enough support.

But while menopause-related health benefits may make it possible for more women to stay in the workforce, experts say the current patchwork of laws creates concerning gaps. In the United States, some legislation is likely to cover you in the event of workplace discrimination having to do with menopause and its symptoms, like laws that protect workers based on sex, age, disability, and pregnancy. But none of them explicitly name menopause as a protected condition, and workers can fall through the cracks.

The surprising history of menopause discrimination

In 1946, Louisa Richey was a passenger in a car that was struck by a dry cleaning truck. At the hospital, she had difficulty breathing and complained of pain in her abdomen and chest. Finding no broken bones, the doctor sent her home. Three days later, Richey coughed up blood; the pain in her chest worsened, and the left side of her face swelled. Richey was hospitalized multiple times, sometimes for weeks, in the months after the accident. Richey and her husband sued the dry cleaning company.

The company’s attorneys called Richey’s own doctor to testify against her, and he attributed her injuries to menopause. The strategy has come to be known as the “menopause defense.”

The menopause defense was invoked in more than 50 reported appellate decisions between 1900 and 1985, according to law professors Phyllis T. Bookspan and Maxine Kline—although the actual number is likely higher.

In a 1999 paper, Bookspan and Kline write that “while the menopause defense found its most prolific usage in negligence and divorce actions, employers on several occasions used the plaintiff’s menopause to limit or deny recovery in workman’s compensation cases. As long as a woman was thirty-five or over, efforts were made to blame whatever complaint she had on menopause.” In one 1911 case, a physician testified that during menopause, “women at that period do go insane, sometimes temporary, and sometimes it is permanent.”

As late as the 1960s, female flight attendants were forced by some airlines—including American, Continental, and Frontier—to quit their jobs once they reached age 32 or 35. One justification for the ousting went like this: “The performance of the stewardess’ job requires enthusiasm which is lost with age…[W]omen between the ages of 38 and 50 undergo changes of body, personality, and emotional reactions, which would interfere with their performance.”

Menopause discrimination has modern precedent too. In 2017, the ACLU appealed the case of a woman in Georgia who was fired from her 911 call-taker job for twice having an accidental period leak while at work, a symptom related to menopause. Claiming she damaged company property and failed to maintain personal hygiene standards, the employer terminated her. The case was originally dismissed by a district court, which ruled that sudden-onset heavy menstruation related to menopause is not protected under Title VII. Following the ACLU’s appeal, the case reached a confidential settlement.

How advocates are aiming to protect menopause at work

Which law is invoked to protect workers from menopause-related discrimination depends on the circumstances of the alleged violation, and some can be problematic. For example, pregnancy-related issues have been found to be covered by the Americans with Disabilities Act, but generally, menopause is considered a disability only when it is “not naturally occurring,” like when it’s the result of a hysterectomy.

“It’s really this tightrope of menstruation that women have to walk. We have to have just the right periods in order not to be fired,” says Ming-Qi Chu, deputy director at the Women’s Rights Project at the ACLU. “I think it always makes sense to bring [menopause] as a sex discrimination case,” she says, but more guidance from enforcement agencies would be helpful.

Cynthia Calvert, a senior advisor at the Center for WorkLife Law, says current laws have too many holes, which could be remedied by ones written explicitly to protect workers with menopause-related symptoms. “We find that having a clear bright line for employers to follow is so much more efficient than these patchwork laws where the employers often don’t know if they have any liability until they’re being sued and the court is saying, ‘we find in the favor of the plaintiff,’” Calvert says.

The Pregnant Workers Fairness Act is a recent example of a clear bright line. “There was a bipartisan coalition that got that over the line because the employers realized that they benefit as well from having some bright guidance,” says Calvert. The PWFA covered a gap in the Pregnancy Discrimination Act that had been used to deny accommodations.

Lawmakers in the United Kingdom have been trying to draw those clear bright lines, too. In March 2023, the government appointed its first Menopause Employment Champion, a voluntary appointee charged with pushing for better workplace support. But codified protections are stymied. In 2022, a group of MPs proposed that menopause be classified as a protected characteristic in anti-discrimination laws, but the recommendations were rejected on the basis that such an addition could discriminate against men.

In the US, a bipartisan pair of House representatives introduced The Menopause Act of 2022 in September 2022, a law that would fund medical research in the National Institutes of Health. The bill has yet to undergo a vote.

“Our goal should be, from a policy perspective, to ensure that our menopause experience is as productive and non-intrusive as possible,” says Jennifer Weiss-Wolf, executive director at NYU’s Birnbaum Women’s Leadership Institute and a proponent of the bill. “[We should] ensure we can be in our prime at work.”

Weiss-Wolf argues that a greater medical understanding of menopause and its symptoms would lead to more successful therapies, less stigma, and better workplace support. Too many women have been driven out of the workforce, she says. “We have the most to give. We’re people with experience, we’re people with perspective, we’re people who are at the top of our game.”

Calvert at the Center for WorkLife Law is encouraged by the latest changes to workplace policies, even if they aren’t yet widespread.

“I’m seeing employers using menopause benefits as a way to attract and retain employees, and I love that,” she says. “When I work with employers, I look for those win-win situations. [A]n employer is doing the right thing by an employee, and at the same time, they’re reaping the benefits, because if they can retain that employee, then they’re keeping institutional knowledge [and] relationships.”