News & Commentary

August 20, 2023

Will Ebeler

Will Ebeler is a student at Harvard Law School.

In this weekend’s news and commentary, the Fifth Circuit expands the scope of Title VII injuries; a new report explores menopause-specific workplace benefits; and nurses at a Los Angeles based hospital go on strike.

Since 1995, plaintiffs in the Fifth Circuit alleging that they experienced employment discrimination have had to show they experienced an “ultimate employment decision” related to hiring, leave, terminations, promotions, or pay. On Friday, the Fifth Circuit overturned that precedent and established a broader definition of what injuries qualify for Title VII lawsuits. The plaintiffs in the case are female detention center officers employed by the Dallas County Sheriff’s Department. They are challenging a department policy that allows only male detention center officers to have full weekends off. And under the Fifth Circuit’s previous standard, scheduling was not an “ultimate employment decision” and therefore did not establish an injury under Title VII. However, the court on Friday found that discrimination in scheduling was an injury under Title VII. The court explained that the phrase “ultimate employment decision” “appears nowhere in the statute and . . . thwarts legitimate claims of workplace bias.” The Sixth and D.C. Circuits have recently overturned standards similar to the “ultimate employment decision” standard, and next term the U.S. Supreme Court will hear a case about whether discrimination in work transfer decisions is actionable under Title VII. 

Next, a New York Times article published yesterday looks at a new type of workplace benefits: menopause-specific healthcare. According to the Times, more than 40% of female workers are at least 45, the age at which women typically start experiencing menopause symptoms. A recent study by the Mayo Clinic found that 15% of women either missed work or cut back on hours because of menopause symptoms, and that lost productivity from menopause symptoms costs women roughly $1.8 billion per year. In response, some companies have started offering menopause-specific care as one of their workplace benefits. Those benefits include virtual access to the roughly 1,000 certified specialists in the United States—specialists who may be difficult to find locally—and coverage for hormone treatments that are not always covered by health insurance. One menopause-specific care provider opened last October and in the last nine months, 150 companies have signed up to have it provide benefits. However, legal observers have noted that corporate benefits are, at best, “just scratching the surface” of the issue. Liz Morris, the deputy director of the Center for WorkLife Law at the University of California San Francisco College of Law, argues that the Pregnant Workers Fairness Act may require employers to provide accommodations to workers experiencing menopause symptoms. The PWFA requires that employers provide reasonable accommodations for workers experiencing pregnancy, postpartum recovery, and “related medical conditions.”  According to Ms. Morris, “related medical conditions” could include menopause-related symptoms, and if it does reasonable accommodations could go beyond menopause-specific care to include schedule flexibility or spaces for cooling down. Another observer noted that in addition to corporate benefits, there must be laws that explicitly ban discrimination and further research on how to prevent menopause symptoms.

Finally, on Friday nurses at a Los Angeles area hospital began a 10-day strike. The nurses are accusing the hospital’s management of failing to address short staffing, broken and substandard equipment, and inadequate protections from attacks by patients. Members of SEIU 121RN, the union that represents the nurses, said that substandard pay and working conditions have led to high turnover and chronic shortages. The union’s executive director said in a statement that these shortages have affected patient care and that the hospital is not complying with state staffing requirements. In response, the hospital said it does a daily assessment of its staffing needs and that it has “never been penalized by the state for being out of compliance with nurse staffing ratios.” In addition to staffing shortages, union members have reported inadequate equipment and unsafe conditions; one nurse reported that when she was performing a blood transfusion, she had to improvise tubing to complete the transfusion because the appropriate tubing was unavailable.

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