CONCEPTUALIZING MENOPAUSE-RELATED DISCRIMINATION
Author: Camden Jones, Senior Editor
Stephen J. Gould was an influential paleontologist, biologist, and historian of science.[i] In his article for Natural History magazine on cladistics (a taxonomical term identifying “clades”, or organism with a common ancestor), he penned the odd phrase, “I regret to report that there is surely no such thing as a fish.”[ii] Fortunately, this statement was not a consequence of fish-related amnesia on Gould’s part. Rather, Gould goes on to make a semantic argument about the benefits and drawbacks of using categorical terms that may not always have an empirical basis.[iii]
Lawyers, even more than scientists, tend to stretch semantics beyond credulity.[iv] The harm proceeding from lack of rigor in defining terms, however, is compounded when legal professionals discuss scientific concepts. One of the more prominent examples of this comes in the form of imprecise discussion of the broad set of hormonal changes that occurs when women reach a certain age.[v] In the scientific literature, this is split into two broad stages, under the 2001 Stages of Reproductive Aging Workshop (“STRAW”).[vi] The first is perimenopause, which is sometimes called the menopause transition.[vii] This period is itself split into two stages, early and late perimenopause.[viii] After perimenopause, menopause occurs.[ix] Menopause is defined as the cessation of menstruation for a period of twelve months or longer.[x] Importantly, menopause is a physiological status that is achieved, unlike the stages before and after which are defined more broadly using indicators like menstrual cycle length variation and other endocrinological indicators.[xi] Following menopause is postmenopause, itself divided into early and late stages.[xii]
If the reader is an average person with no medical training, much of this information may come as a surprise.[xiii] In 2025, the American Medical Association interviewed three long-time obstetrician-gynecologists about what they wished their patients knew about menopause.[xiv] In the article reviewing their findings, they pointed out at least a dozen misunderstanding, rising out of misinformation or lack of information.[xv] These include uncertainty about what perimenopause is, when it begins, how long it lasts, what symptoms are associated with each stage, or how treatment is conducted.[xvi] Many of these points of concern reveal a critical lack of reliable education being given to the public, so perhaps it is not a surprise that legal professionals are no better in their understanding of menopause and the menopause transition.[xvii]
The menopause transition comes up most often in the legal realm in the context of employment discrimination. The workplace is often a hostile place for women who begin to experience symptoms.[xviii] In 2023, the Mayo Clinic conducted a study of women aged 45 to 60 years, assessing “menopause symptoms, the impact of these symptoms …, the care received for these symptoms, and treatments.”[xix] They concluded that the “severity of menopause symptoms strongly predicted the odds of an adverse work outcome.”[xx]
Despite the growing body of research on the menopause transition and accompanying discrimination, the law continues to lag behind in its understanding of the subject. In modern times, employment discrimination associated with the menopause transition sits uneasily between age, sex, and disability discrimination.[xxi] As courts have pointed out, it is possible to classify postmenopausal women as having a disability by virtue of the infertility which comes naturally with age or by surgical intervention.[xxii] This characterization presents an obvious problem. If any postmenopausal women are protected under the theory that they have a disability, the class of persons with a disability must necessarily expand by around 60 million.[xxiii] Even if one assumes the sheer quantity of people added to the protected class would not undermine the meaning of the class entirely, it does not fit from a scientific perspective to treat all women having reached a certain aged as disabled. The classification is less similar to a category like those with prosthetic limbs than those who have gone through puberty. The menopause transition is not a disease, it is simply a part of life.
Treating menopause discrimination as a form of age discrimination is equally problematic. The first problem is that approximately 50% of individuals who reach ages 40-50 will not undergo menopause—namely, men. Thus, discrimination surrounding menopause cannot be simply a stand-in for disparagement of middle age. The second problem with this framework is lack of fit for women who undergo menopause in their 20s and 30s, most often through surgical removal of both ovaries.[xxiv] These women suffer the same group of symptoms as women undergoing natural menopause: night sweats, hot flushes, vaginal dryness, and insomnia.[xxv] For instance, take an example cited earlier: Mullen v. New Balance Ath., Inc.[xxvi] In this case, a woman had her second ovary removed along with her uterus.[xxvii] Following her surgery, she experienced mood swings which resulted in her crying on the job; her supervisor persuaded her this meant she was unfit for her job.[xxviii] Such cases do not fit into the framework of menopause discrimination being a subset of age discrimination, ultimately this way of thinking does not fit the case law or the science.
Of the three axes on which to view menopause discrimination, the most natural is sex discrimination. All women who live sufficiently long will undergo menopause.[xxix] Unlike disability status or age, sex is also directly protected under the Civil Rights Act.[xxx] Unfortunately, no statute explicitly indicates that menopause discrimination is directly analogous to sex discrimination.[xxxi] Pregnancy, homosexuality, and transgender status have—through legislation or case law—become established proxies for sex; the same is not true of menopause or late-stage reproductive status in general.[xxxii] It may be a symptom of lack of education or taboo around the subject, but national legislation has failed to address concerns about the applicability of anti-discrimination laws to the menopause transition specifically.[xxxiii]
Before the problem of menopause discrimination is addressed, the information around the subject matter must be clarified. Thus far, the law has done a poor job of addressing the fundamentally different aspects of menopause (perimenopause, the final menstrual period, postmenopause, etc.). It may be that the solution can only come through legislation similar to the passing of the Pregnancy Discrimination Act, which directly overturned a Supreme Court case finding pregnancy was not a proxy for sex.[xxxiv] Menopause and the menopause transition have an even stronger basis to be directly linked to sex; unlike pregnancy, every woman who lives long enough will experience it.[xxxv] The tripartite approach which treats menopause variously as a disability, a symptom of age, or of sex has not proven up to the task of creating clarity or positive results for the women who have suffered from discrimination. The solution must be first to educate, and then to establish menopause firmly in the realm of characteristic functions related to biological sex.
[i] Stephen Jay Gould, Interview, Am. Acad. Achievement (Feb. 1, 2022), https://achievement.org/achiever/stephen-jay-gould/#interview.
[ii] Stephen Jay Gould, Hen’s Teeth and Horse’s Toes 363 (W. W. Norton & Co. 1983).
[iii] Id.
[iv] Top 10 Unfortunate Political One-Liners, Time, https://content.time.com/time/specials/packages/article/0,28804,1859513_1859526_1859523,00.html (last visited Mar. 1, 2026).
[v] In the interest of clarity, the term “women” is used as a catch-all for the subset of the population who will experience menopause in their lifetimes. This term is not meant to disparage or delegitimize others who undergo menopause. See Bridget J. Crawford et al., Working Through Menopause, 99 Wash. U. L. Rev. 1531, 1532 (2022).
[vi] M. R. Soules et al., Executive Summary: Stages of Reproductive Aging Workshop (STRAW), 4 Climacteric 267 (2001).
[vii] Id.
[viii] Siobán D. Harlow et al., Executive Summary of the Stages of Reproductive Aging Workshop + 10: Addressing the Unfinished Agenda of Staging Reproductive Aging, 19 Menopause 387 (2012).
[ix] Id.
[x] What is Menopause?, Nat’l Inst. on Aging (Oct. 16, 2024), https://www.nia.nih.gov/health/menopause/what-menopause.
[xi] Harlow et al., supra note 8.
[xii] Id.
[xiii] Sara Berg, What Doctors Wish Patients Knew About Menopause, Am. Med. Ass’n (Oct. 17, 2025), https://www.ama-assn.org/public-health/population-health/what-doctors-wish-patients-knew-about-menopause.
[xiv] Id.
[xv] Id.
[xvi] Id.
[xvii] Id.
[xviii] See, e.g., Lizzy Burden, Women Are Leaving the Workforce for a Little-Talked-About Reason, Bloomberg. (June 18, 2021,12:00 AM), https://www.bloomberg.com/news/articles/2021-06-18/women-are-leaving-the-workforce-for-a-little-talked-about-reason.
[xix] Stephanie S. Faubion et al., Impact of Menopause Symptoms on Women in the Workplace, Mayo Clin. Proc. (2023), https://doi.org/10.1016/j.mayocp.2023.02.025.
[xx] Id.
[xxi] Klein v. Dep’t of Children & Families Servs., 34 F. Supp. 2d 1367 (S.D. Fla. 1998); Cruz-Aponte v. Caribbean Petroleum Corp., 123 F. Supp. 3d 276 (D.P.R. 2015).
[xxii] Mullen v. New Balance Ath., Inc., No. 1:17-cv-194-NT, 2019 U.S. Dist. LEXIS 30967 (D. Me. Feb. 27, 2019).
[xxiii] U.S. Census Bureau, Population Pyramid Data Tables, https://www.census.gov/popclock/data_tables.php?component=pyramid (last visited Mar. 1, 2026) (showing the amount of women in the United States 51 and up is about 60 million).
[xxiv] Cristina Secoșan et al., Surgically Induced Menopause—A Practical Review of Literature, 55 Medicina 482 (2019), https://doi.org/10.3390/medicina55080482.
[xxv] Id.
[xxvi] Mullen, supra note 23.
[xxvii] Id. at 4.
[xxviii] Id. at 5.
[xxix] Jen Gunter, The Menopause Manifesto 28 (2021) (ebook).
[xxx] 42 U.S.C. § 2000e-2.
[xxxi] U.S. Dep't of Labor, Let’s Talk About It: Menstruation And Menopause At Work (2024).
[xxxii] 42 U.S.C. § 2000e(k); Bostock v. Clayton Cnty., 590 U.S. 644 (2020).
[xxxiii] Diane Dygert & Maria Rossi, Exploring Menopause Benefits: A Guide For Employers (2024) citing 42 U.S.C. § 2000gg.
[xxxiv] 42 U.S.C. § 2000e(k); General Elec. Co. v. Gilbert, 429 U.S. 125 (1976).
[xxxv] See Geduldig v. Aiello, 417 U.S. 484 (1974).