Q&A: Is providing menstrual leave discriminatory?

There is no federal law requiring menstrual leave, and little U.S. case law on it. A menstrual leave policy limited to female employees carries litigation risk under Title VII because employee benefits are a term of employment. Employers can reduce that risk by making the benefit symptom-based or folding it into general paid leave.

Question

We currently offer a paid menstrual leave benefit providing up to eight hours of paid leave per month exclusively to female employees experiencing menstrual symptoms.

Does a paid menstrual leave policy available only to female employees present legal risk under Title VII or other applicable federal laws? Has the Equal Employment Opportunity Commission (EEOC) or any significant case law addressed employer-provided paid menstrual leave benefits? Are there any best practices or drafting recommendations if an employer wishes to maintain a menstrual leave benefit?

Answer

A policy providing up to eight hours of paid menstrual leave per month exclusively to female employees presents novel legal issues under federal law. There is currently no federal law requiring menstrual leave, and there is little U.S. case law directly addressing employer-provided menstrual leave benefits. However, because the benefit is expressly limited based on sex, it carries some litigation risk under Title VII.

In fact, only 2% of U.S. employers currently offer menstrual or menopause leave above what is already provided through standard sick time, according to the benchmark SHRM Employee Benefits Survey.

Does a menstrual leave policy create Title VII risk?

While there is no federal prohibition on menstrual leave itself, limiting a paid leave benefit solely to female employees creates potential exposure under Title VII because employee benefits are considered a term, condition, or privilege of employment. The EEOC has long taken the position that employers generally may not determine eligibility for employee benefits based on sex unless a specific statutory exception applies.

The primary concern is that male employees (or employees who do not qualify under the policy’s definition of “female”) could argue they are being denied a compensation or leave benefit solely because of their sex.

How does Bostock affect who qualifies?

Following Bostock v. Clayton County, 590 U.S. 644 (2020), Title VII’s prohibition against sex discrimination also encompasses discrimination based on sexual orientation and gender identity. A policy that limits eligibility to “female employees” without careful drafting could raise additional questions regarding transgender employees, nonbinary employees, or others who menstruate but may not identify as female.

What does the PWFA require for menstruation?

The federal Pregnant Workers Fairness Act (PWFA) regulations categorize “menstruation,” “perimenopause,” and “menopause” as “related medical conditions” to pregnancy. This means employers are legally required to provide reasonable accommodations for severe menstrual symptoms (such as flexible scheduling, telework, or unpaid time off). However, the PWFA requires accommodations — it does not grant the right to create an exclusive, sex-restricted paid leave bank.

Under the PWFA, the phrase “pregnancy, childbirth, or related medical conditions” is defined broadly to include current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions. Unlike the ADA, an employee doesn’t have to show a limitation meets a specific level of severity to be covered under the PWFA.

The PWFA borrows definitions from the Americans with Disabilities Act (ADA), including the terms “essential function,” “reasonable accommodation,” and “undue hardship,” as well as adopting the same interactive process. Employers are required to provide reasonable accommodation to individuals with known disabilities or pregnancy-related conditions.

Generally, this includes modifying work schedules, job restructuring, or modifying the facility or equipment, so long as it does not constitute an undue hardship on the business. It might also include leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

Do other leave laws apply?

In some cases, individuals experiencing severe symptoms related to menstruation may qualify for leave under the Family and Medical Leave Act. Employees may also be covered by state paid family and medical leave or sick leave laws that can be used for menstruation- or menopause-related reasons.

How can employers reduce risk in a menstrual leave policy?

If the employer wants to continue offering menstrual leave, several drafting changes could reduce—though not eliminate—legal risk:

Consider making the benefit symptom-based rather than sex-based. Rather than limiting leave to “female employees,” consider providing leave to employees who experience qualifying menstrual symptoms or related medical conditions. This approach better aligns eligibility with the medical condition rather than the employee’s sex and may reduce potential Title VII concerns following Bostock.
Consider integrating the leave into an existing paid leave program. Instead of creating a separate category of paid leave available only to certain employees, the employer could provide a small bank of flexible wellness leave or medical leave that may be used for menstrual symptoms, migraines, medical appointments, or other short-term health needs. This approach substantially reduces disparate treatment concerns because all employees receive the same benefit while allowing employees experiencing menstrual symptoms to use the leave when needed.

Define qualifying circumstances. If the employer maintains a dedicated menstrual leave benefit, the policy should clearly describe:

the purpose of the leave;
the amount of available leave;
whether intermittent use is permitted;
whether documentation may be requested in limited circumstances; and
how the leave interacts with other paid leave policies.

The employer should avoid language suggesting the leave is an automatic monthly entitlement regardless of need.

Coordinate with ADA and other leave obligations. Some menstrual disorders—such as endometriosis, adenomyosis, or severe dysmenorrhea—may qualify as disabilities under the ADA depending on their severity. The menstrual leave policy should expressly state that it does not limit employees’ rights under applicable federal or state leave laws.

Apply the policy consistently. Managers should receive training regarding:

confidentiality;
appropriate documentation practices;
avoiding intrusive medical inquiries; and
consistent administration.

Inconsistent administration may create greater litigation risk than the policy itself.

Bottom line

Because there is no controlling federal authority approving or prohibiting menstrual leave policies, the legal risk is difficult to quantify. The greatest potential concern is that a paid leave benefit available only to female employees could be characterized as facially sex-based under Title VII, particularly because employee benefits generally must be provided without regard to sex.

If the employer wishes to continue supporting employees experiencing menstrual symptoms, the most legally conservative approach would be to reframe the benefit around the qualifying medical condition rather than the employee’s sex or, better yet, incorporate the leave into a broader wellness or flexible paid leave program that is available to all employees but may be used for menstrual symptoms when needed. This approach preserves the employer’s supportive intent while reducing the likelihood of a discrimination challenge.

Frequently asked questions

Is menstrual leave legal in the United States?

There is no federal law requiring menstrual leave and no federal prohibition on offering it. Little U.S. case law directly addresses employer-provided menstrual leave benefits. The legal question is not whether the benefit is allowed, but whether restricting eligibility by sex creates exposure under Title VII.

Can a menstrual leave policy be limited to female employees?

It can, but doing so carries litigation risk. Employee benefits are a term, condition or privilege of employment, and the EEOC’s position is that eligibility generally may not be determined by sex absent a statutory exception. Male employees could argue they are denied a leave benefit because of their sex.

Does the PWFA cover menstruation?

Yes. PWFA regulations categorize menstruation, perimenopause, and menopause as related medical conditions to pregnancy, so employers must provide reasonable accommodations for severe menstrual symptoms, such as flexible scheduling, telework, or unpaid time off. The PWFA requires accommodations, though. It does not authorize a sex-restricted paid leave bank.

Can menstrual symptoms qualify under the ADA or FMLA?

Sometimes. Menstrual disorders such as endometriosis, adenomyosis, or severe dysmenorrhea may qualify as ADA disabilities depending on severity, and individuals with severe menstruation-related symptoms may qualify for FMLA leave. State paid family, medical, or sick leave laws may also cover menstruation- or menopause-related reasons.

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