Menstruation Discrimination

A woman has been fired for a bleeding through her clothing at work. Alisha Coleman, Georgia a mother of three, had a common symptom of pre-menopause: sudden-onset, heavy periods. My wife alerted me to this and asked about her prospects of winning her lawsuit.

In a nutshell, this looks like a textbook case of “disparate treatment” (intentional discrimination), and therefore, her odds of prevailing look very good.

But in my cursory search for precedent on this, I found nothing.

I found two recent law review articles on more general treatment of menstruation, and recommend them. I have excerpted very brief “teasers” from these articles (quoting below):

“Reconstructing Pregnancy,” SMU Law Review (2016), by Saru M. Matambanadzo, Tulane Law School:

Discrimination by employers on the basis of menstruation both is and is not prohibited discrimination under Title VII, as amended by the PDA (Pregnancy Discrimination Act). Policies requiring that women have a regular menstrual cycle before returning to work have been viewed by some courts as violating Title VII’s prohibitions against pregnancy discrimination. However, in other cases, courts have held that menstrual cramps are not a medical condition related to childbirth or pregnancy for the purpose of the PDA and therefore disparate treatment on the basis of menstrual cramps is not sex discrimination. (Click here for the article: http://scholar.smu.edu/cgi/viewcontent.cgi?article=1085&context=smulr)

“Tampon Taxes, Discrimination, and Human Rights,” Wisconsin Law Review, by Prof. Birdget Crawford, Univ. of Penn Law School and Prof. Carla Spivack is the Oxford Research Professor of Law at Oklahoma City University School of Law (2017) (Click here for the article: http://wisconsinlawreview.org/wp-content/uploads/2017/05/Crawford-Spivack-Final.pdf).

In finding for the taxpayers in Geary, the Illinois Supreme Court also held that the City of Chicago should interpret its taxing ordinance to include menstrual hygiene products in the definition of “medical appliances,” and thus exempt them from taxation. In fact, the Illinois Department of Revenue and its Chicago counterpart were working with virtually identical statutes, but the State of Illinois adopted a regulation under which it interpreted the phrase “medical appliances” in its sales tax statute to include menstrual hygiene products (thus exempting tampons and sanitary napkins from taxation), but the City of Chicago did not interpret the phrase the same way. The Geary court ruled that the Chicago City Council had a policy of administering and enforcing municipal tax statutes in a manner that was consistent with the State of Illinois' interpretation of state tax statutes. Thus, for purposes of the Chicago city sales tax, tampons and sanitary napkins should be classified as “medical appliances” and were exempt from taxation.