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20. The Law and Menopause with Naomi R. Cahn & Emily Gold Waldman
62 Plays9 months ago
September is Perimenopause Awareness Month! And we are diving into all things perimenopause and menopause.
How do policies and laws impact women’s rights during perimenopause and menopause in the workplace? In this episode of Our Womanity with Dr. Rachel Pope, we delve into this important issue with expert guests Naomi R. Cahn, the Justice Anthony M. Kennedy Distinguished Professor of Law, and the Nancy L. Buc '69 Research Professor in Democracy and Equity at the University of Virginia School of Law. Naomi is the author of numerous books, including Fair Shake (2024). Joining the conversation is Emily Gold Waldman, Associate Dean for Faculty Development and Professor of Law at the Elisabeth Haub School of Law at Pace University.
Along with Bridget J. Crawford, a University Distinguished Professor at the Elisabeth Haub School of Law at Pace University, who is the co-author, with Emily Gold Waldman, of Menstruation Matters (2022), among other publications, the three women recently published the book “Hot Flash How the Law Ignores Menopause and What We Can Do About It”, set out to replace the silence surrounding menopause with a deeper understanding.
Hot Flash explores the cultural stereotypes associated with menopause and examines how menopause is handled in both law and medicine. The book positions menopause as one of several key stages in a person’s reproductive life. Using U.S. legislation around pregnancy and breastfeeding as a framework, the authors propose updates to workplace policies and laws that would include menopause. Their work invites us to envision a legal landscape that promotes a more equitable future for all.
Order your copy of Hot Flash: How the Law Ignores Menopause and What We Can Do About It, available through Stanford University Press.
Featured in this episode:
- Millions of women are working during menopause, but US law isn’t clear on employees’ rights or employers’ obligations
- Menopause treatments can help with hot flashes and other symptoms – but many people aren’t aware of the latest advances
Follow us on social media:
- Instagram: @drrpope
- TikTok: @vulvadoctor
- Twitter: @drrpope
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Transcript
Introduction of Guests and Book 'Hot Flash'
00:00:01
Speaker
Hello everybody and welcome back to our romanity. I am so grateful to the two women who are here to speak to us today about their new book and about all things legal with menopause. These are the first lawyers that I'm having on as far as I can remember. Everybody so far have been in the medical world and this is such ah an important way to bring things to light. so I do want to introduce you here to Naomi Khan. She's the Justice Anthony M. Kennedy Distinguished Professor of Law at University of Virginia School of Law. She's the author of numerous books, most recently Fair Shake. It was in 2024, and then of course Hot Flash, which
Origin Story of the Book 'Hot Flash'
00:00:40
Speaker
we'll talk about. And then we will also welcome Emily Goldwaldman, who's the Associate Dean for Faculty Development and and Professor of Law at the Elizabeth Hobbs School of Law at Pace University. They, along with their co-author, Bridget J. Crawford, wrote this book, Hot Flash, and I can't wait to to hear about this. So welcome, both of you, to Arwell Manatee, and thanks so much for being here. Thank you so much for having us. We're delighted to be here.
00:01:04
Speaker
So tell me first, what inspired this book? How did you decide to put this together and put this in print? It starts with something that Emily and Bridget did together. So why don't you start? Bridget and I wrote an article and then ultimately a book about menstruation and the law. But in part of that process, we put together a conference with another law professor named Margaret Johnson at Columbia Law School with their gender law journal.
00:01:33
Speaker
And the conference was called, Are you there law? It's me menstruation. Oh, nice. It's all about unpacking different intersections between menstruation and the law.
How Does Menopause Intersect with Legal Topics?
00:01:44
Speaker
And so we put out a call for proposals for different people to speak and contribute something, a short piece to the symposium issue. And one of the people who got in touch with us was Naomi and Naomi asked if it would fit in to do a piece about menopause and the law. And we said, yes, that would actually be great. And that's such an interesting idea. And Naomi can talk more about her piece if she wants, but she was really sort of outlining big legal questions, sort of almost like a research agenda for where does menopause fit in? There is more focus on menstruation and the law.
00:02:19
Speaker
yeah But where does menopause fit in? A lot of the early focus, at least on menstruation and the law, was about things like the so-called tampon tax, like sales tax on menstrual products. And so there's this interesting question about where does menopause fit into all this? You can see connections, obviously, but it raises different legal questions, and it's not as much about products.
00:02:41
Speaker
right and so she wrote really thought-provoking piece and that grew in into us deciding to work together on a bigger article and then another article and then you know there were so many things to talk about that before we knew it we had some of the material for a book.
00:02:58
Speaker
That's amazing. And I should add that as we were going through this process, it really was one article at a time. And then it was seeing so many connections because our articles weren't just about the law. They were about images of the body and cultural images and just seeing how much there is to explore about menopause. Of course, there's the legal issues about hormonal treatments, et cetera, but just going far beyond that to go into workplace issues, to go into international and comparative issues, as well as, of course, the medical legal issues. And we sort of, I mean, it really was, as Emily said, one step at a time. And then we said, okay, yeah, there's a book.
Growing Openness about Menopause
00:03:40
Speaker
That's so interesting. And I love that this started with menstruation. One of my sisters is actually a lawyer also. And she said to me, you know, of course we don't talk about menopause because we don't talk about periods. So how can you talk about the time when periods stop? And so maybe it's some of that logic that kind of led things to unravel this way. And you've been working on this for the last several years together. It's so timely as it's coming out now and you can pre-order it, right? as Oh, yes.
00:04:09
Speaker
and We'll put links also in the in the show notes to get people um to where they can pre-order it, but it's you know it's so timely in the fact that now there's so much attention towards menopause. When you first started this out, I'm assuming really people weren't speaking that much about menopause as they are now. Yeah. I mean, I don't think there was absolute silence, but I think it's been a steady build where more and more people have started to talk about it. And the more people who do talk about it than other people yeah talk about it, right? So you see sort of really notable people like Michelle Obama or Winfrey, other celebrities. And the more that people talk about it and the more you see it in popular culture, I think it sparks more discussions all over the place, whether it's on TV shows or I've noticed in just novels that I read that
00:04:59
Speaker
more and more novels have that as something that's going on with one of the characters that you know they're
Cultural Focus on Wellness and Menopause
00:05:06
Speaker
experiencing. I just feel like I'm noticing it everywhere. And I don't think it's just that I'm more attuned to it because this book, I think it genuinely is in, it's just much more sort of in our popular culture now.
00:05:17
Speaker
Do you have any suspicion of why the change because I mean, people have been going through menopause forever, right? Is it like people are now more comfortable speaking about it or just the right people are starting to speak about it? Do you have any, any hunches of why this has changed? That's a really good question. And I think, yeah, there are lots of different reasons for this sudden blossoming of of interest in menopause.
00:05:42
Speaker
What is the increasing openness about periods? And so, as you have a generation that is increasingly comfortable talking, I mean, ju Judy Blume, from Judy Blume then on, talking about periods, they also, many of them are starting to go through perimenopause or have experienced menopause. And so, there's much more of a consciousness and an openness about being able to talk about bleeding on a monthly basis or having that bleeding stop. So so that's one aspect of it. I mean, you had Michelle Obama in 2020 being quite frank about her experiences with menopause. And so as an example of that kind of openness, so just an increasing openness about that. There's also been a lot more attention in the tech world to product spur
00:06:30
Speaker
yeah, not a puzzle capitalism, but to the commodification yeah of women's health issues. And so there are more and newer products that are feeding on this openness. So those are two of the factors. I think it's such an interesting question. And I hadn't really thought about this before. But I do wonder if another piece of it is just that there is an increased focus generally, I think, in society now on wellness, and people being more aware of their bodies, you know, whether it's mindfulness or thinking about, you know, different exer exercise routines or vitamins they're taking. I just feel like there's such a focus on wellness and part of wellness is being clued into what's going on with your body. And I do wonder if that's a little piece of it too, like that people want to understand more about what's going on with their body, this sort of in this pursuit of wellness. And you have a lot of people who are approaching the age of menopause who are very into
00:07:29
Speaker
focusing on bodily wellness in all sorts of ways. And so they want to understand more about what's going on. I'm thinking also about in the New York Times magazine, now it was a couple of years ago, but Susan Dominus wrote this big article about different types of um hormone therapy and things like that. And I just think people have an interest in that as part of their general interest of trying to optimize their own wellness.
00:07:50
Speaker
Yeah, and then of course you have social media where bringing things that are intimate or maybe kind of so sort of secret are now a little bit easier to talk about in front of an audience of millions of people because you're just looking at your phone. And maybe COVID played a role like this, a lot of this was happening when people were like in their homes more so it felt a little bit deeperer to talk about things because it wasn't all face to face. It was more people talking from their own home to know what was going on with them.
Balancing Privacy and Openness in the Workplace
00:08:17
Speaker
So interesting. Now I'd love to to get your input from a legal perspective on menopause in the workplace because this is something I have, you know, I feel like I'd like to help corporations, I'd like to help employers understand how to support
00:08:32
Speaker
women going through perimenopause and menopause. But at the same time, as a gynecologist myself, I'm thinking, okay, but it's none of their business, right? Women should have some sort of privacy around this. They shouldn't have to tell or talk about their their health or with their employer. But at the same time, there should be some, you know, potential accommodations or some some things where we're not ignoring the challenges that women are going through. So I would love to hear your perspectives.
00:08:57
Speaker
It's a great question. And I think that sort of paradox between the need for openness, but also the need for privacy is something that we talk about in the book. And that definitely is attention. And I think i think there are some things that employers can do proactively that then make it more comfortable for people to come forward if they want to, or maybe sometimes people don't even need to.
00:09:19
Speaker
to the extent that you have policies that are just sort of broadly applicable to be more accommodating. So for example, rather than having one uniform that's required for everybody, like a long save uniform, you give options at the outset. So someone doesn't have to come and say,
00:09:37
Speaker
Well, I want my own exception. Why? Because I'm going through menopause. I'm having hot flashes. But just generally speaking, there's a range of options and everyone can choose the option that they want without having to justify it or things like flexible scheduling or things like climate control, right? I mean, you can do that as sort of an accommodation if needed, or you can just have sort of a workplace that allows for climate control and anybody who needs it can have it and doesn't have to say why. so Ideally, I think you do have these sorts of policies where it's a more broadly accommodating workplace and then people aren't having to disclose things that they don't want to, not that there's anything to be embarrassed about, but just some people are more private about everything going on in their life.
00:10:20
Speaker
We borrow this also from from the disability studies, legal studies area, that the question of a medical versus a sort of more social model. on is Is menopause an illness that has to be dealt with, disease that has to be dealt with? yeah um Or is it a question of, and is it a question of accommodating? Or is it a question of changing the entire structure surrounding our workplaces?
00:10:42
Speaker
so that people who can't work from home when they're experiencing particular forms of symptoms still have a workplace in which the type of experience may or may not be menopause, but in which menopause is dealt with going beyond accommodation. yeah So we're seeing that it's also something that's been happening in the UK where there's been a great deal more both activism as well as legal responses to menopause and more and more workplaces there are changing
00:11:14
Speaker
in order to make sure that there's still privacy, but on the other hand, there's a way of continuing to perform one's work.
Developing Menopause Policies in the Workplace
00:11:24
Speaker
This tension between privacy and openness, if people don't speak up about menopause, however, that's going to continue to the stigma and the silence. And so, you know, as as Emily just said, there there is this tension that that we deal with throughout the book. and We're seeing, I mean, pregnancy is much harder to hide at least after a certain period of time. And so we are seeing changes in federal law with respect to pregnancy and with respect to lactation. And so part of the difference, right, is those are far more visible. And maybe it's because they're more visible that they're getting a great deal more attention in legal community and with respect to changing laws.
00:12:08
Speaker
I think that's that's kind of where my brain goes because well, I'm postpartum right now and I'm lactating. Thank you. Thanks. But you know, I had a very different work experience with my first two kids. And this is the first time where I actually have to be in clinic while I'm like lactating.
00:12:24
Speaker
It is a really interesting thing where I know that I have the right to ask for time to pump and yet like my office manager is a guy I don't really want to talk to him about pumping and I don't really want to have this conversation with him and you know I did it anyway because I want to be able to feed my child.
00:12:44
Speaker
but at the same time I had thought like gosh if this were just built in with a way that I could say no thank you I don't need it if I didn't want it but that it was assumed that I could use that time or like I'm coming back to work I'm postpartum and this was available and I didn't have to make like a separate meeting to request it I didn't have to like put myself out there to talk about it it would have been so much nicer and I think I kind of feel like that's what you're getting at with menopause too. So that like, this is just part of the system and not something you have to be singled out to request or to ah put your own health information out there or say like, like, look, I'm really experiencing brain fog and then worry about some potential backlash or
00:13:28
Speaker
retaliation because does that mean that the person is not performing as well as they were before, right? Like, so sticky, but if you have it built in, it doesn't have to be so.
Creating Accommodating Environments at Work
00:13:37
Speaker
Am I on the right track? I mean, the more I think that there are just policies set up or thinking about a lactation, right? It's a lactation room. So it's not that you have to say, Oh, where should I go to do this? And same with menopause, right? Like there already just is a menopause.
00:13:51
Speaker
policy or there are already policies where there are different choices, like I said, for a uniform or different places where people can go for climate control, things like that. The more there are the policies there, so you don't have to initiate the conversation and feel sort of alone or feel like what will even happen if I say something, maybe nothing, so I'm not going to put myself out there if I don't know what I'm entitled to. I think the more sort information and policies that are put out,
00:14:21
Speaker
that sort of reduces the stickiness for someone then trying to avail themselves of it. And then I think there's a whole other piece with menopause two, which is separate from accommodations, which is as part of, let's say like trainings about sexual harassment and things like that.
00:14:40
Speaker
workplaces becoming aware that reproductive processes fit into that, like that ah jokes and double harassment related to those things are not okay. One of the things that we saw in our research is that Sometimes the very concept of menopause, even if someone hasn't been said they're menopauseable, like the very concept is almost weaponized as a way to sort of demean or joke like, oh, are you having a hot flash? Or things like that. And but i like the moodiness with PMS. Yeah, right. And you can think about it. I mean, and that comes up with is somebody having PMS or are they going through menopause? Like there are a lot of ways in which the re reproductive processes can be used to sort of
00:15:26
Speaker
mock or demean people. Again, whether or not they even are. I remember actually someone wasn't menopausal, but as a joke, they would sort of turn up the temperature to be like, oh, are you going to have a hot flash? And recognizing that all those things are forms of sexual harassment. Right. or And that's totally separate from people asking for accommodations, which is also important. Yeah, there are two ways, two legal issues I think that we talk about in the book. what One is changing the workplace and recognizing that not everybody experiences menopause in the same way. And so people in the workplace will need different things. And then the second is responding to harassment or to discrimination based somewhat explicitly on menopause.
00:16:06
Speaker
And so for the like employers who are out there listening, you know I think we we can say for the women, like advocate for yourself and read your book because it'll also give them ways of how they can advocate for themselves. But for the employers who want to be compassionate and want to be inclusive, what do you recommend for them? I think one thing that people want, studies have shown this, is they want a menopause policy. They want employers to proactively have a policy where they sort of talk about these things. And I mean, not so much making sure that there isn't harassment, though, of course, that's important, but also different sorts of accommodations that are available. And again, that doesn't have to be just for menopause, that can be sort of broad accommodations that have to do with schedules, uniforms, the climate of the workplace, like the physical climate, the air conditioning,
00:16:57
Speaker
et cetera. But I think sort of being proactive about it, sometimes also it can involve what the health benefits package is. okay That's another place where employers can be proactive. So I think all of those things, thinking about how they can be a more broadly accommodating workplace in general, but then having them as policy and just sort of acknowledging it as a thing that exists.
00:17:17
Speaker
Yeah, and I'm, you know, as a menopause provider, I often wonder how are my working, like, women patients, how are they able to even make an appointment with me when my office is from eight to four, right? Like, I don't know if you have a suggestion for employers for that, or if that's the flexible hours, or, or why. And again, so many of these things are things that I think so many employees would benefit from.
00:17:39
Speaker
Right? Like the ability to go see your healthcare care provider. That's not just an issue for people. men People have so many different medical conditions where they need to be able to see their doctor and like they need to take the appointment that's offered to them because of their doctor's hours or they may not get an appointment for six months otherwise. So that type of broad flexibility I think is important. And then that's also something that benefits all employees. And so it's less of a feeling of why is this one person getting yeah special treatment to see everybody needs those sorts of things, like time to go see their doctor. yeah And it doesn't single out menopause, right? I mean, that that's really important. And that that gets back to to what you were talking about earlier, Rachel, about the the ability to talk about these things, yeah um being able to talk to your coworkers, your supervisors about these issues. If there's a menopause policy in place, that makes it easier. If you have more senior people who are experiencing menopause,
00:18:38
Speaker
talking about menopause more openly. I think that also creates an opening for more junior people to to talk about these issues and for changing policies. So creating a culture of openness and acceptance around menopause, around menstruation, around pumping, etc. I mean, it's these reproductive processes need a lot more openness and acceptance, rather than stereotyping, as we're certainly seeing on the national political scene these days. Yeah, so let's talk about that. So we have JD Vance, you know, coming from my lovely state of Ohio. ah
00:19:17
Speaker
ah making so many comments about about women, without children, about tampons, about, you know, everything. Where do you feel like that is putting us as women?
Political Comments and the Need for Policy Change
00:19:27
Speaker
Let's just love to hear your views and knowing that they do not reflect those of your employer necessarily. And we always have that disclaimer at the beginning of our podcast. But, you know, what sort of light does that paint for a women?
00:19:39
Speaker
I think it's sort of overwhelming right right to think about we're both kind of collecting our thoughts here. But certainly it's drawing a lot more attention to these issues. It's making people much more aware of the stereotypes about these issues. I think it's making people push back a great deal more against these stereotypes. And so hopefully it will feed back into this larger openness about reproductive processes as well as of course about women's rule. And it's been about, it's been a little bit more than two years since the Supreme Court decided the Dobbs opinion yeah on abortion and saying there's no fundamental right to an abortion. And so these conversations about women's status in society, I think reflect some of that rollback of reproductive rights
00:20:37
Speaker
But they also draw attention to larger issues involving the mid-status in society. I mean, some of these things are just you know the childless cat ladies or you know the whole purpose of the post-menopausal female or tampon Tim. It's just speaking about women in ways that feel very reductive to me and sort of othering and not recognizing women as full people and sort of respecting the full range of reproductive processes.
00:21:10
Speaker
yeah and just a full sort of human experience. I think so much about how, you know, people think of these issues as women's issues only. And they're like, you know, but at least for myself, I'm also married to a guy who's going to be affected by these things where our whole family will be affected by these policies, right? And so it's really not even just for heterosexual couples, but for everybody who's influenced by just our community. It's not just women's issues. It's all of our issues. And we keep, you know, half of our population out of the workforce or say that they have no purpose after the reproductive potential. And, and we're going to be limiting what our workforce is, which is, is totally against the US philosophy and our culture of, I guess, production in a way. We're also limiting, I think, men's roles, right? It's of sole purpose of post bono puzzle women is to provide care for their grandchildren.
00:22:02
Speaker
yeah What does that, not not my words, mind you, what does that do to to fathers, to grandfathers? what does that or What does that do to the role of other second parents and grandparents? So it's it's exclusive as well in terms of familial roles.
00:22:18
Speaker
Yeah, that's a great point, right? Like, for the the father who wants to be involved, that comment just said, Oh, no, it's not your place. You should be at work. Well, postmenopausal grandmother is taking care of that. It's so limiting for everybody to have something so black and white and the interesting thing to me is some of these ideas like there's a kernel of it that I know where it's coming from because we also have looked at you know that anthropological and historical research about menopause and this idea this hypothesis which is actually a nice idea that one of the ideas is after someone is post-menopausal, then also one thing they may do is be helpful with their grandchildren. That seems like a nice thing. It's like that's one of things that we're able to help with. But then when you phrase it is, well, that's their purpose, it sounds, yeah it has a totally different sort of connotation and feels sinister as opposed to like a nice thing that that's something that can happen just as part of their life as a grandmother.
00:23:17
Speaker
No, that is truly the heart of it and that we should all have the opportunities to pursue what we want to pursue and write. That's what America's about. Well, I think this has been really interesting. I really appreciate the time and the effort that you've put into this. I can't wait to read your book and put the link in the show notes where you can pre-order their book. hot flash to have these incredibly smart women taking the time to research this and put this into paper. And I hope all the corporations out there take a note.