The Legal Side of Menopause
By Charlotte Marshall, Brooke Razor and Erika Collins 20 February 2024
Charlotte Marshall, Brooke Razor and Erika Collins provide guidance for employers on supporting menopausal workers, including around health and safety and the potential for discrimination
Menopause is something that approximately 50 percent of the workforce will experience during their working lives, but it is infrequently discussed in the workplace and many of us remain unaware of how menopause can affect those experiencing it. However, businesses are seeing an increase in employees concerned about menopause and the way it affects them at work. This is a multi-faceted issue that encompasses a range of potential legal issues and considerations for employers.
Legal issues
While menopause is not specifically recognised as a protected characteristic, employees experiencing menopause may be protected by discrimination laws relating to age, sex, disability and gender reassignment. Generally, people experiencing menopause are women aged between 45 and 55 so any unfavourable treatment or discrimination (whether direct or indirect) towards an employee experiencing menopause could amount to sex and/or age discrimination. Gender reassignment discrimination may also be relevant if the employee experiencing menopause is transgender.
Menopause can bring with it a multitude of symptoms that affect people differently. Depending on the severity and impact of symptoms, menopause can amount to a disability. What constitutes a disability is fact specific but is generally held to be a condition that has a substantial and long-term adverse impact on the individual’s ability to carry out day-to-day activities. Where an employee is experiencing menopause that amounts to a disability, they will benefit from protection under disability discrimination laws, and the employer will also need to consider if any reasonable adjustments need to be made for the employee in light of their disability.
Additionally, issues can arise between colleagues if menopause is not handled correctly as a workplace issue. Unwanted conduct in the workplace involving an employee’s menopause or menopausal symptoms may amount to harassment or sexual harassment, such as ‘banter’ between employees about another colleague’s perceived menopausal symptoms. Likewise, victimization or bullying may occur if an employee who has asserted their rights under discrimination laws is treated less favorably because of their complaint(s).
Health and safety
In the UK, the US and many other countries, businesses are under a duty of care to ensure the health and safety of their employees while in the workplace. This will extend to those experiencing menopause and associated symptoms so employers should consider the mental and physical impact of the work environment on employees experiencing menopause and whether any adjustments are necessary.
Practical steps for businesses
Menopause is experienced differently by each person and is often a sensitive and private issue for those experiencing it. While employers should always consider employees’ privacy, it is also important to foster a workplace culture that allows for conversations about menopause.
Menopause is an area about which many are unfamiliar or unaware, so companies should consider whether workplace training is appropriate, particularly for HR professionals and managers, to gain a greater awareness about the challenges and symptoms that people experiencing menopause may have and how employers can assist in accommodating them.
Organisations should also consider implementing a menopause policy. A menopause policy could cover a range of topics, including setting out the employer’s expectations as to how employees experiencing menopause should be treated, allowing people who are experiencing significant menopause symptoms a certain amount of paid or unpaid time off, etc. Additionally, employers should consider how existing policies may inadvertently adversely affect those experiencing menopause. For example, inflexible requirements for in-office working may be more difficult for some experiencing menopause (and could even amount to indirect discrimination), with many employees reporting they find working from home helpful in coping with menopause symptoms.
Where businesses are made aware that employees are experiencing menopause, they can consider workplace adjustments to assist employees. These might entail altering the workplace temperature, moving the affected employee to a cooler part of the office or adjusting the employee’s working time.
Though it has not happened yet, there has been recent debate about passing employment legislation in the UK that specifically protects people experiencing menopause. Employers should stay up to date with current legislation and consider the issues discussed above.
Charlotte Marshall and Brooke Razor are associates and Erika C Collins is a partner, all at Faegre Drinker