I thought by now that we’d basically covered the bases in terms of unlawful, unfair, and unprofessional nonsense that women face in the workplace. Between sexual harassment, the gender pay gap, pregnancy discrimination, and lack of statutorily mandated family leave policies, women face a lot of hurdles in their quest for professional advancement and financial security. Unfortunately, this week, we have to add an unexpected hurdle to that list: menstruation. You heard me right, menstruation – a natural and necessary function of the human reproductive system.
On June 8, 2017, a federal district court in the state of Georgia ruled that an employer who terminates a female employee for “excessive menstruation” does not violate the federal prohibition on gender discrimination.
This case arose when Bobby Dodd Institute terminated Alisha Coleman after she suffered from two accidental menstrual leaks while on the job at a 911 call center. Ms. Coleman was nearing menopause and, as a result, suffered a common symptom – unexpectedly heavy periods. Sadly, in addition to dealing with understandable embarrassment related to these incidents, Ms. Coleman was also forced to deal with discipline at work. After her first menstrual leak, she was sent home to change and issued a disciplinary notice which stated she would be terminated if it happened again. After the second, she was terminated for failing to “practice high standards of personal hygiene and maintain a clean, neat appearance while on duty.”
Ms. Coleman filed suit against the company, alleging that her termination amounted to unlawful gender based discrimination. Specifically, Ms. Coleman pled that Bobby Dodd had terminated her as a result of a symptom of her pre-menopausal state, which violates Title VII’s prohibition on discrimination based on pregnancy, childbirth, or related medical conditions. Ms. Coleman’s former employer filed a motion to dismiss and the district court granted that motion, explaining that an employer is justified in terminating an employee for failing to control her “excessive menstruation” and “soiling company property.” The court acknowledged that the property was soiled as a result of Ms. Coleman’s “uniquely feminine condition,” but argued that that feminine condition was not related to pregnancy or childbirth and, thus, did not fall within the act.
Significantly, Ms. Coleman had pled that she suffered from pre-menopause, not from “excessive menstruation.” Instead, those words were the court’s characterization of her condition and, frankly, they represent a misreading of Ms. Coleman’s complaint as well as a lack of understanding of menstruation (assuming that there is some “normal” or “nonexcessive” quantity of menstruation for any given woman). Regardless, it seems pretty straightforward that terminating an employee because of her menstruation – excessive or otherwise – is the epitome of gender-based discrimination. There is no biological function more specific to being female than the reproductive system. Terminating an employee because of pregnancy, menstruation, or any other condition related to that system amounts to terminating an employee because of her sex.
While we feel pretty confident that the lower court got the decision wrong, we are happy to hear that the American Civil Liberties Union has signed up to appeal the dismissal on Ms. Coleman’s behalf. You can read the full appellate brief, which was filed last week, here. We plan to keep an eye on this one and we’ll update you when we hear how it all shakes out. In the meantime, we hope that employers faced with similar incidents in the future will do the decent (and lawful thing) and won’t issue their female employees discipline for suffering from gender-related conditions which are outside of their control. We would have thought that goes without saying, but here we are saying it anyway.
