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October 31, 2023 HUMAN RIGHTS

The Right to Dignified Menstruation at Work?

by Marcy L. Karin

Systemic barriers related to stigma and subordination at work exist because of menstruation and related conditions. This results from the failure of many workplaces to acknowledge, anticipate, or accommodate the needs of people who menstruate or are in perimenopause or menopause—approximately half of today’s workforce. Unfortunately, without access to affordable, safe menstrual products and locations to apply and dispose of them, some people are likely to miss work, experience presenteeism problems, or be pushed out of the workforce. Menstrual stigma, shame, a lack of lived experiences of people in power, and poor menstrual education also make some workers susceptible to indignities at work related to their menstrual cycle, including discrimination, harassment, and bullying. This also could lead to lost wages, privacy violations, health implications, and other harms. Both voluntary employer actions and the law are (slowly) changing this reality. But we are far from a universal right to engage in dignified menstruation for all workers.

Menstruation and Related Conditions: A Biology Primer

Menstruation is not a universal experience—nor is it experienced universally the same. Instead, from approximately the ages of 10 to 51, some people with a uterus shed roughly two to five tablespoons of blood and tissue for around five days every 21 to 35 days. Menstrual cycles also vary over the course of one’s life and from person to person. Even “normal” cycles change in terms of rate and amount. Some people also experience pain (of various degrees) and other symptoms like anxiety, backaches, concentration problems, hot flashes, insomnia, and mood changes.

Most people who menstruate are cis girls and women, but not all women menstruate, and not all menstruators are women. Transgender men, genderqueer, and intersex individuals also may menstruate or be in perimenopause or menopause.

Menopause is the permanent cessation of menstruation, measured retroactively as 12 months after someone’s last period. Perimenopause, which is often characterized by erratic, unexpected heavy bleeding, is seven years before menopause on average. Regardless of age, hysterectomies and other procedures also cause menopause, and people may choose to medically suppress menstruation.

In addition to sex, gender identity, and age, lived experiences with menstruation intersect with people’s race, religion, class, and disability. Menstruation and menopause are not usually disabilities. Nonetheless, symptoms of some people’s cycles or related conditions such as dysmenorrhea or endometriosis (which impacts 1 out of 10 menstruators) may be a disability or a serious health condition. Further, some conditions disproportionality impact certain groups. For example, Black women are more prone to polycystic ovary syndrome and uterine fibroids; they also undergo hysterectomies and myomectomies at substantially greater rates. 

Workers need access to a workplace free from indignities, harassment, and bullying based on menstruation and related conditions.

Workers need access to a workplace free from indignities, harassment, and bullying based on menstruation and related conditions.


What Structural and Individual Modifications May Be Needed?

People are taught to conceal all stages of the menstrual cycle—from menarche through menopause. This means that people will manage their bodies at work (to try) to mask that they are bleeding. Following this concealment norm costs money as products must be purchased to absorb menses, and time away from work will be needed to use those products and/or clean and change clothes if menses leak. (Of course, these are expenses that not all workers have to pay.) The concealment imperative also extends to conversation—meaning workers do not want to talk about menstruation and may fear consequences if they do.

Accordingly, there are two types of menstruation-related needs at work: accommodations and anti-discrimination protections. Menstruation-related accommodations modify workplace structures to allow workers to access the physical products and spaces needed to safely manage menstruation. For example, paid break time to travel to and use a toilet that is stocked with menstrual products. (Or to search for an absorption product if the employer does not provide them and a period arrives unexpectedly.) Other examples include changing khaki-colored uniforms, providing control over a thermostat, or the ability to open windows or carry water if someone is experiencing a hot flash.

Workers also need access to a workplace free from indignities, harassment, and bullying based on menstruation and related conditions. This should reduce the number of jokes related to “the gift” or being forgetful, which workers may experience, or at least cause supervisors to pause before responding to employee questions by suggesting the worker is too old to be interested in a menstruation policy. It also involves providing environments where workers are comfortable reporting this type of bad act and are able to bring their whole selves to work without being afraid that they will be penalized—or fired—if they fail to conceal their period and accidentally bleed on company property.

Employers Breaking the Taboo

An increasing number of employers are taking note of the menstrual movement and talking about what they can do to support current and former menstruators. For example, employers can—and increasingly are—making products available, letting people change worksites to be closer to toilets to minimize lost work time, or providing paid breaks. Other workplaces have created first day of period leave or established wellness rooms that allow menopausal workers to rest. Some have trained human resources and line managers about menopause and how its symptoms may manifest at work. Others have included menstruation as an example in their nondiscrimination policy or adopted menopause policies as part of comprehensive gender justice and health initiatives. Unions also have actively bargained for menstruation-supportive policies and obtained free tampons in toilets and telework options that allow workers to manage their symptoms in their own spaces while working.

More voluntary practices are surely coming.

Existing Legal Protections

These voluntary employer practices are important, but gaps remain. No federal law explicitly provides rights that comprehensively fill in these gaps and address needs related to menstruation and related conditions for all workers at all worksites. Nonetheless, some labor standards and anti-discrimination protections apply.

Specifically, state laws may offer break time or paid sick leave that can be used for period purposes. Nationally, time off may be available to workers with a serious health condition related to menstruation (or its cessation) under the Family and Medical Leave Act. Similarly, menstruation-related accommodations may be available under the new Pregnant Workers Fairness Act (menstruation, perimenopause, and menopause are “related medical conditions” to pregnancy) or the Americans with Disabilities Act (for menstruation-related disabilities). Further, the Occupational Safety and Health Act requires employers to provide a workplace free from known hazards and offer regular access to toilets, running water, and waste disposal—all of which are necessary for dignified menstruation.

Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act protect workers from discrimination on the basis of sex, gender identity, race, age, and disability—categories that intersect with the menstrual cycle and may protect workers accordingly. State and local human rights laws also offer protections, as demonstrated by the New York City Human Rights Commission guidance that unequivocally states that “discrimination based on menstruation is a form of gender discrimination.”

The words “menstruation” and “menopause” are not found in the text of these laws. Nonetheless, proposed regulations, cases, guidance, and statutory interpretation principles demonstrate their application. Advocates also are pushing for clearer statutory and regulatory protections moving forward.

Movement around the World

The United States is not the only country with menstruation and menopause on its mind. Effective in August 2022, Scotland kick-started a worldwide conversation about the role of law in improving the lived experiences of people who menstruate when it enacted the Period Products (Free Provision) (Scotland) Act. This new law requires localities to arrange for a reasonable choice of products to be available for free to anyone who needs them. More broadly, the United Kingdom requires statutory sick leave, the right to ask for flexibility, and reasonable workplace adjustments for menstruation-related disabilities. It also is in the midst of a robust conversation about the gendered ageism and taboos that accompany menopause at work, which has involved government consultations, the appointment of a workplace menopause champion, published research about the costs of inaction, and the promotion of best practices through a new British Standards Institution standard on menstruation, menstrual health, and menopause. Beyond the United Kingdom, Canada requires menstrual products in government and federally regulated workplaces. Spain enacted Europe’s first menstrual leave requirement, joining Taiwan, Japan, Zambia, and a handful of other countries with such protections. Further, countries as diverse as Australia, China, Chile, and Zimbabwe are considering new protections in this space.

The Path Forward

Menstruation and menopause need not be dirty words at work. Existing U.S.-based legal supports already apply some support to workers addressing the menstrual cycle, but more comprehensive coverage is needed. Legislation like the proposed Menstrual Equity for All Act could clarify and expand existing accommodation and discrimination protections to destigmatize periods and afford real menstrual justice at work. Until explicit statutory or regulatory language is created, agencies could clarify coverage in guidance to help workers understand the scope of their rights related to dignified menstruation—and also to help employers know about potential legal liability. In the meantime, employers should look at their existing workplace structures and modify them to create a more supportive environment for workers who menstruate or are in menopause.

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Marcy L. Karin

Jack and Lovell Olender Professor of Law and Director of the Legislation/Civil Rights Clinic at the University of the District of Columbia David A. Clarke School of Law

Marcy L. Karin is the Jack and Lovell Olender Professor of Law and Director of the Legislation/Civil Rights Clinic at the University of the District of Columbia David A. Clarke School of Law. She is a leading expert in gender and workplace justice matters and recently engaged in comparative menstrual justice research as the 2023 Fulbright-Scotland Distinguished Scholar at the University of Edinburgh’s Institute for Advanced Studies in the Humanities.