by ALISON GREEN
MAY 9, 2022

A reader writes:

I’m a manager in an overseas office of an American company. About two-thirds of our employees were hired locally, with the remainder (mostly managers) having relocated from the United States.

Under local law, women are allowed one day off per month to care for menstrual symptoms. Women wishing to use this benefit are required to give notice by the start of the workday that they will be absent, manager approval is not required, and it will not count against their leave balance.

Our legal division, based back in the the States, determined that this local rule is unfair because it: (1) constructively requires women to disclose their menstrual/health status by virtue of invoking that leave category, and (2) it is discriminatory because it provides a benefit to women that men do not receive. I disagree with point 1 on the basis that one is technically disclosing their health status anytime they request sick leave and no one seems to mind that. Point 2 feels very “why is there no white history month?” to me, but okay.

Anyway, the legal division advised that we have to extend this benefit to all local employees. So now, even though local law does not require it, our branch has a policy that any locally-employed member of staff can take an unscheduled day off every single month, no questions asked. (Note: This law was the result of years of women’s rights advocacy. The letter of the law is not perfect since obviously not all women menstruate, and not all people who menstruate consider themselves women. Local law controversially does not acknowledge transgender, nonbinary, and intersex persons. But the spirit of it was definitely meant to accommodate menstruation and did not contemplate cisgender men availing themselves of period leave. Women workers here use an honor system and take very seriously the need to only invoke this leave category when they truly need it for fear of ruining it for others.)

It is becoming a mess. I have had no issues with the women on my team, but a locally-employed man on my team (who has made it clear he is not a trans man) is clearly misusing this leave category. For example, we were closed for a local holiday on Thursday and again the following Monday. He took “period leave” the Friday in between, even though it left us in the lurch for a big meeting that day in which he had a key role. Everyone knows he did that just to give himself an extra long weekend, during which he openly went on a pre-planned vacation. When I tried to level with him offline as in “Dude, you know this leave category is meant for women, what are you doing?” he looped in HR, who warned me that I’m not allowed to question an employee’s use of period leave. I feel like I’m taking crazy pills!

(Women had started calling these leave days “mother’s day” to be delicate. When my male direct-report called out last week, he said he was taking a “father’s day,” but HR confirmed that’s not a thing. It’s still period leave, it’s just that men are also entitled to it.)

Are we really just stuck with this ridiculous rule? I’m ready to write to legal to suggest an alternative interpretation, but I’m not sure what alternative will satisfy both the spirit of the local law and U.S. non-discrimination laws. A local friend in another industry told me her company has a rule that “period leave” cannot be taken on a Friday, Monday, or adjacent to a holiday. While that solves part of the problem, what if someone really does happen to have debilitating menstrual cramps on one of the blackout days? I’d love to hear your input and that of your readers.

This is ridiculous.

Does your male coworker want cramps too?

I don’t know how I feel about the period leave system in general, but I’m not part of the culture that has it. It apparently works in the culture you’re in. Trying to making another culture’s law comply with U.S. employment law is at the root of this, and it’s unnecessary. U.S. law doesn’t apply where you are; the laws of your jurisdiction do. Your U.S. headquarters isn’t required to impose U.S. rules on your office (just like a London-based employer isn’t required to apply UK vacation minimums to U.S.-based employees).

Your country’s law is saying, “We’re giving this accommodation to everyone with this specific medical condition (difficult periods).” By responding that everyone must get that, your U.S. office is doing the equivalent of saying “if people with wheelchairs get special parking, everyone needs to get special parking.” Moreover, they’re undermining the accommodation for people who do have difficult periods — the very people it was intended for — because now they get a day off when they feel sick, and non-period-having people get a day off for fun. That’s not equal and it’s clearly not what the law was intended to do. (And yes, women in your office could respond by taking a day off every month whether they need it or not, but that sounds totally at odds with the culture of this benefit in your country.)

It might be interesting to talk with a local lawyer about whether your company’s “solution” violates the local law — because if the law is written in a way that requires women to be given an additional day, separate from the rest of the time off the company provides, your company’s policy wouldn’t comply.