Deborah A. Widiss, Indiana University Maurer School of Law, is publishing Menstruation Discrimination and the Problem of Shadow Precedents in the Columbia Journal of Gender and the Law. Here is the abstract.
A burgeoning menstrual justice movement calls attention to menstruation-related discrimination in workplaces, schools, prisons, and many other aspects of life. In recent years, a few courts have suggested such discrimination could violate Title VII, the federal law that prohibits sex discrimination in employment. Their analysis focuses on the Pregnancy Discrimination Act (PDA), an amendment to Title VII passed to override a Supreme Court case that had held pregnancy discrimination was not sex discrimination. This essay, written for a symposium at Columbia Law School, applies my earlier research on the statutory interpretation of Congressional overrides to highlight two potential challenges this nascent litigation campaign may face, and to suggest how to avoid them. The first risk is that courts will simply deny such claims, reasoning that menstruation is not directly addressed by the text of the PDA and therefore should not be recognized as sex discrimination. The second—which is more subtle, and also perhaps more likely—is that courts could find such discrimination to be actionable, but do so relying solely on the PDA’s explicit reference to “medical conditions” related to pregnancy. While that would be helpful for addressing discrimination in workplaces, it could open the door to arguments that menstruation is outside the ambit of sex discrimination laws that do not include comparable language. Theorists and advocates should instead seek to establish that menstruation discrimination is discrimination the basis of “sex” itself, in that it is a condition linked to female reproductive organs (although transmen and boys and non-binary persons may also menstruate) and associated with stereotypical assumptions about women’s proper role in society. That reasoning, which suggests that the PDA is properly interpreted as signaling Congress’s disapproval with the Supreme Court’s unduly cramped understanding of what constitutes sex discrimination in the earlier pregnancy case, should apply not only to Title VII, but also to the interpretation of statutory and regulatory prohibitions on sex discrimination in non-employment contexts.
Download the article from SSRN at the link.