What I've Been Saying for 20 Years. First About Pregnancy. Now About Menopause.

Let me tell you about a phone call I had with a defense lawyer about fifteen years ago.

My client had been recruited away from her previous employer. Six-figure role. Senior leadership. She was a top shelf find, and they wanted her. Six months into the job she got pregnant. HR called her in and delivered the news with genuine regret: when her baby was due, she would not have been employed for a full year. She didn't qualify for FMLA leave. She had four days of accrued PTO. That was it.

The HR person wasn't lying. The FMLA does require a full year of employment (and 50 employees). But they were wrong about what the law required of them.

When I called opposing counsel to explain why my client was entitled to protected leave anyway, the lawyer said something I would hear many times over the next two decades: "Explain that to me again."

Here's what I explained.

Postpartum, there's no question a woman is disabled for a period of time. Even tight-fisted insurance carriers know this, which is why they pay a minimum of six weeks for a vaginal delivery and eight weeks for a C-section. If one of your employees had a heart attack or broke a leg skiing and hadn't yet worked a full year, would you tell them they weren't entitled to recover? Of course not. That would be disability discrimination.

So how is it different for a woman disabled by childbirth and recovery? It isn't. It's disability discrimination. It's sex discrimination, because it's only happening to women. And it's pregnancy discrimination. Three overlapping claims. One employer who thought the FMLA was their only obligation.

That case settled. Every case like it since has settled. And then in June 2023 the Pregnant Workers Fairness Act made the argument I'd been making for years the law of the land.

Now I'm having the exact same conversation about menopause.

Different symptoms. Different stage of life. Same skeptical defense lawyers. Same confused HR departments. Same women being told the law doesn't cover them.

It does. Here's why.

If your perimenopause or menopause symptoms affect major life activities, such as sleeping, thinking, concentrating, working, or major bodily functions like your endocrine system, you're already covered under the Americans with Disabilities Act. Your employer is legally required to engage in an interactive process with you. To analyze reasonable accommodations in good faith. To not retaliate against you for asking.

And because menopause happens only to women, adverse action based on those symptoms is sex discrimination under Title VII. And because it typically affects women between 40 and 64, it's age discrimination under the ADEA.

Sex. Age. Disability. Three overlapping claims. One employer who thinks menopause isn't their problem.

I've heard that before. I know how it ends.

We don't yet have a Menopause Workers Fairness Act, though my team presented that legislation to Congress in the summer of 2024, modeled on the very PWFA that vindicated the argument I'd been making about pregnancy for twenty years. That federal protection is coming.

But you don't have to wait for it. The law is already there. The floor already exists.

A law you don't know about is a law you can't use. And a right you don't raise is a right you don't have.

Jack Tuckner | Tuckner, Sipser, Weinstock & Sipser, LLP | Women's Rights in the Workplace | womensrightsny.com | jtuckner@womensrightsny.com