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SHOULD LEAVE DURING PERIODS BE A HUMAN RIGHT FOR FEMALE EMPLOYEES?

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This article is written by Shirsti, a 4th year LL.B. student at RNB Global University, Bikaner.

Introduction

Everyone has the right to work because the right to work is a human right. This can be seen in the provisions of Article 23 of The Universal Declaration of Human Rights stating:

  1. Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.
    1. Everyone, without any discrimination, has the right to equal pay for equal work.
    1. Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
    1. Everyone has the right to form and to join trade unions for the protection of his interests.

This provision provides an understanding that work is the right of both men and women.

But, women are biologically different from men. They face unique bodily challenges. One of them is their hormonal cycle, commonly known as menstruation. They bear both physical and mental stress during that period. Coping with such stress is more difficult for working women. One the one hand, workplaces are becoming progressively inclusive. More women are joining the workforce and are contributing to the growth of the economy. On the other hand, organizations have not been very sensitive to this unique need of women. During menstruation period, more than work, what women need is rest. But there are no policy initiatives to take care of such a need. This subject has been debated in the parliament, but no law has yet been passed. A law mandating Menstrual Leave or Period Leave in every organization can be a step in the right direction.

Menstrual leave is a type of leave where a person may have the option to take paid or unpaid leave from their employment if they are menstruating and are unable to go to work because of this[1]. The menstruating period can cause severe discomfort, pain, emotional problems and other health issues, having such a measure at their disposal allows women to be at the comfort of their home instead of at the office[2]. Throughout its history, menstrual leave has been associated with controversy and discrimination against women, with very few countries enacting policies; it is associated with low uptake in those countries that have enacted policies. It is seen by some as a criticism of women’s work efficiency or as sexism. Supporters of menstrual leave policies compare its function to that of maternity leave and view it as a promoter of gender equality[3].

There is the need for a period leave policy for the working women which will either be formulated by the legislature or by the institution in which the women are be employed because it will lead to better working conditions, promote healthy mental and physical environment and further uphold the right to a dignified life to the women. So, now it is a time when the leave during periods shall be considered as human rights[4]

How is menstruation related to human rights?

Human rights are rights that every human being has by virtue of his or her human dignity. Menstruation is intrinsically related to human dignity – when people cannot access safe bathing facilities and safe and effective means of managing their menstrual hygiene, they are not able to manage their menstruation with dignity. Menstruation-related teasing, exclusion and shame also undermine the principle of human dignity.

Gender inequality, extreme poverty, humanitarian crises and harmful traditions can all turn menstruation into a time of deprivation and stigma, which can undermine their enjoyment of fundamental human rights. This is true for women and girls, as well as for transgender men and no binary persons who menstruate.

Over the lifetime of a person who menstruates, they could easily spend three to eight years menstruating, during which they might face menstruation-related exclusion, neglect or discrimination. A variety of factors affect how people are treated during menstruation (and other times when they experience vaginal bleeding, such as during post-partum recovery)[5].

One of these factors is the perception that menstruation is dirty or shameful. This view contributes to restrictions women and girls face during vaginal bleeding, which exist in many, if not most, countries. Some restrictions are cultural, such as prohibitions on handling food or entering religious spaces, or the requirement that women and girls isolate themselves. (See examples of menstruation taboos and discrimination here.) Some restrictions are self-imposed; women or girls may fear participating in activities like school, athletics or social gatherings. Together, these practices can reinforce the idea that women and girls have less claim to public spaces, and that they are less able to participate in public life.

Another common misconception is that women and girls have diminished capacities, whether physical or emotional, due to their menstrual cycles. These ideas can create barriers to opportunities, reinforcing gender inequality. In truth, most women and girls do not have their abilities hindered in any way by menstruation.

Poverty and humanitarian crises can limit women’s and girls’ access to culturally appropriate, high quality menstrual supplies and safe, private washing facilities. Vulnerable women and girls in middle- and high-income countries can also face poor access to safe bathing facilities and menstrual supplies – including those in impoverished school systems, prisons and homeless shelters.

The onset of menstruation, called menarche, can undermine girls’ human rights. In many places around the world, menarche is believed to be an indication that girls are ready for marriage or sexual activity. This leaves girls vulnerable to a host of abuses, including child marriage and sexual violence. Deeply impoverished girls have been known to engage in transactional sex to afford menstrual products.

Below is a list of universally agreed human rights that can be undermined by women’s and girls’ treatment during menstruation[6]:

Why do women need period leave?

The world has become faster. Women from the past few decades have entered the workforce and many young women are still entering and building up their carrier. After struggling for centuries, women are now getting opportunities in various fields of their interest. Balancing between home and work, women have achieved a lot. The contribution from the female workforce in the economy is as good as the male workforce. It is important to create an environment where menstruation ceases to be a taboo and women can comfortably take a period leave when they face discomfort and not state that they are sick. Sick leave and period leave aren’t the same. Menstruation is not a sickness. Today, at workplaces conditions remain unhygienic. The availability of the sanitary napkin at workplaces is almost nil. Keeping aside the workplace, when it comes to the public places, there are no provisions made for sanitary napkins or its disposal. Women need to go whispering from one women to other to find the same. Not all women do desk job, there are many women who need to Field work. It becomes very difficult for such women to manage during their periods.

Because of the unhygienic conditions of the restrooms, many women are prone to and often get Urinary tract infections and other diseases. Many areas be it urban or rural, face the problem of water shortage. Water is an essential. When it comes to the disposal of sanitary napkins it is also important to understand that waste management is done adequately. Menstrual hygiene is a constitutional issue. Article 21 of the Indian Constitution guarantees right to sanitation. However, it is not expressly mentioned under Article 21. It is the duty of  the government to make policies related to sanitation and implement them effectively. Sanitation at workplaces, educational institutions and public places must be taken care of. Article 21 also guarantees Right to Health. Right to Health and Right to Sanitation are related to each other. Abridging of Right to Sanitation is abridging Right to Sanitation[7]. Right to Sanitation includes access to clean water, personal hygiene, waste disposal and management.

Men and women have biological different. It is important to accept it, embrace it and be comfortable with it. Many women face painful periods i.e. Dysmenorrhea, some of them have Endometritis, some of them are on medications for the hormonal imbalance, some face problems like PCO. The percentage of women suffering from this is high. And unfortunately many consider such women to be “weak” or “inefficient” and so are overlooked and made to feel ashamed of it. In the era of women empowerment biology cannot be made a point of bias.

As of Today, are there women who can confidently and comfortably ask for leave for the unbearable pain during their periods to their boss? The only answer to this question is very few. The reason behind this is nothing else then the stigma and thought that a women shall be mentally prepared that they will have to go through this and hence should not “glorify their pain” or make it a big deal. Here it is important to understand that even though not all women experience painful periods, but the women who experience a painful one need rest and proper hygiene. Other than painful periods, many women experience other problems like nausea, vomiting, menstrual migraine, fatigue, fever, hot flashes etc. It is not easy for all women to pop a pill and get back to work, some need extra care and rest. This is another important reason why women need period leave.

Indian Perspective on menstrual leave

There is no legal infrastructure in India to allow women the right to take menstrual leave. There are, however, some private companies, including Byju’s, Zomato and Culture Magazine that provide their female employees this benefit.

Bihar is the only state in the country that has government-approved period leaves. In January, 1992, a state government order declared that all women employees would get two consecutive days of leave every month, apart from their usual offs. Similarly, a Kerala girls’ school has provided menstruation leave to its students since 1912.

For any Bill to stand a chance of approval in Legislature, it has to be Legally Sanctioned and Constitutionally Valid. The Menstruation Benefit Bill, 2017 was introduced in Lok Sabha (Lower House of Parliament) by MP Ninong Ering from Arunachal Pradesh. Under the Bill, women employed by both public and private establishments registered with the Central and/or state governments, would have been entitled to two days of menstrual leave every month, which would amount to 24 days of leave annually. Throughout the nation an opinion was wandered if such a bill is legally valid, or if it’s discriminatory in nature or the impugned bill being Constitutionally Invalid.

Part III of the Constitution of India, talks about the Fundamental Rights provided to people and that they are sacrosanct in nature, to put a light over the impugned bill being discriminatory or hampering equality, Article 15 of the Constitution directs state to not discriminate against a citizen on grounds only of religion, race, caste, sex, or place of birth or any of them. The Exception to the said law has been provided in the Clause 3 of Article 15 (Article 15(3)), which explicitly states that anything mentioned in Article 15 shall not prevent the state from making any special law or provision for protection and upbringing of Women and Children in the society. The rationale behind the said law is that women’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence and her physical wellbeing becomes an object of public interest and care in order to preserve the strength and vigor[8].

As aforementioned the State has Right to make and amend laws for uplifting and protecting women and children as there are considered to be the most vulnerable section of the society and hence any laws made that are for the abovementioned reason are not deemed to be discriminatory and form equity as a base for equality. Hence, the Menstruation Benefit Bill, 2017 is just in order to empower women in the society by providing certain benefits and adequate working conditions to women.

As per a research done by University College London published earlier this year, period pain can be as “bad as having a heart attack.” Also that in addition. most women face a hard time, especially on the first and second days of the menstruation cycle due to obvious discomforts[9].

Article 21 of the Constitution of India promises Right to Life and Personal liberty except according to procedure established by law.” Prior to Maneka Gandhi case[10] the ambit of the term personal liberty was highly constrained and the first time Honorable Supreme Court took the term ‘personal liberty’ and its ambit into consideration in the case of A.K. Gopalan v. Union of India[11] where the court took a very strict interpretation of the term.

Article 14 of the Indian Constitution grants the states the authority to provide equality to all citizens within the territory of India in the form of equal protection of the law and equality before the law. The concept and the principle under Article 14 do not amount to the laws being uniform and universal always but state that the laws can be provided to persons and classes, if there are special circumstances or specific reasons behind the introduction of such laws, or if such laws can benefit the society at large. Similarly, the Supreme Court in the case of E.P. Royappa v State of Tamil Nadu, 1974[12] has drifted from the traditional concept of equality which was based on the reasonable classification, and laid down a new concept of equality, stating it to be dynamic with various distinctive aspects and dimensions. Hence, it can be stated that the right to equality, being dynamic is also read with other provisions of law, and it makes no point that period leave is held to be discriminatory, as these are accorded to them for providing them with basic health requirements.

As per the research aforementioned the Period pain is as bad as having as an ‘heart attack’ and the Article 21 provides right to life to all the citizens and Non-Citizens of the Nation, but one cannot expect a women to attend an office when she is going through her Menstrual Pain and hence also that it would wrong to make the leaves in account to the nominal paid sick leaves entitled to all the employees. Also to the matter of fact as prior mentioned women contribute 50% of workforce in the country and these jobs are not only white collar jobs or desk job or jobs at managerial level but there are women who contribute largely in labour force too, They are paid wages that are necessary for them to meet their daily needs and necessity and hence during period also, when not provided with paid leave, they have to work which causes them physical strain and affects their health, whereas Article 21 of the constitution also includes right to Health under the ambit of personal liberty, where Healthy working conditions and such rules necessary to ensure health of the workers shall be made, and hence Article 21 also ratifies the Menstruation Benefit Bill, 2017.

Part IV of the constitution of India provides us with the Directive Principle of State Policy, which are commonly known as those objectives that the state has to achieve, in other words to be mentioned, any policy that is formed shall be formulated keeping in mind the Directive Principle of State Policy, thought these are not fundamental in nature and also not enforceable, but they pay a very crucial role into formation of laws and policy structuring. As per article 37 of the Constitution of India:-

The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws[13].

Hence it can be truly inferred that it is the duty of the state to apply these principles while making laws or formulating policies. In Kesvananda Bharti v. State of Kerala, the court has taken a view that there is no conflict between Directive Principle and Fundamental Rights and that they work hand-in-hand while having a common goal to achieve which is Social Revolution and establishing of a welfare state that has been envisaged in the Preamble of the Constitution[14]. In view of the court, it is the responsibility of the court to interpret the provisions of the constitution in such a way so as to ensure the implementation of the Directive Principles and to harmonize the social objectives underlying the directives with the individual rights. This is the mandate of the constitution not only to the Legislature and Executive but also to the court[15].

Granville Austin had said that Directive Principles and the Fundamental Rights are the conscience of our Indian Constitution. Hence as per Article 42 of the Constitution:-

The State shall make provision for securing just and humane conditions of work and for maternity relief[16].

And as aforementioned that Directive Principles are to be kept into consideration while forming laws and they are as important as Fundamental rights and Article 42 explicitly states that it shall be the aim of the lawmakers to make law which aims at maternity relief, and therefore the impugned bill is not only constitutionally valid but also concurs to one of the Objective of the constitution enshrined under Article 42.

It can be said that period leave is constitutionally valid.

Global perspective on menstrual leave

Period leave or leave due to Menstrual pains have been followed since World War two by various nations and that there are explicit laws made and mandatory for not only government sector but also the Private sector of those nations have to implement these laws. Nations such as Japan, Taiwan, Indonesia and South Korea have already been far-sighted in terms of legally and mandatorily providing 2 day leave to the Women suffering through Period pains.

In Japan under their labour law, have explicitly stated under Article 68 that –

Article 68. When a woman for whom work during menstrual periods would be especially difficult has requested leave, the employer shall not employ such woman on days of the menstrual period[17].

When this law was written in 1947, women were employed in high numbers in labour driven workforce, mines, Bus Stand and also Sanitary Facilities and hence also that the law aimed of providing physiological leave to women. The law has nowhere mentioned about the women who have taken up administrative Role.

In South Korea, female employees are entitled to menstrual leave according to the Article 71 of the Labour Standards Law, and are ensured additional pay if they do not take the menstrual leave that they are entitled to[18].

Taiwan being another country that too has a law that is in favour of Menstrual leave, but in relation to the laws in japan, this is a very recent law, implemented in 2013. Which guarantees women workers basic three days of menstrual leave a year, in addition to the statutory 30 days of Half-Paid Sick leave allowed to all the workers. The Act of Gender Equality in Employment gives women three days of “menstrual leave” per year, which will not be calculated toward the 30 days of “common sick leave”, giving women up to 33 days of “health-related leaves” per year. The extra three days do not come with half-pays once a woman employee exceeds the regulated 30.

In Indonesia 2003 law brought together much of basic regulations of labour force, replacing or overriding many existing laws and regulations. It retained clauses providing special protection for women, in spite of demands to exclude them. Article 81(1) states that: ‘Female Workers/labourers who feel pain during their menstruation period and notify the entrepreneurs are not obliged to come to work on the first and second day of menstruation’[19].

In Europe, as of 2021, there was no country with a national menstrual leave. A proposal by the Italian Parliament to introduce a menstrual leave policy in 2017 sparked debate in Europe on how menstrual health impacts women in the workforce. The bill would have introduced a policy for companies to offer three days paid leave for women who suffer severe menstrual cramps; the policy was not enacted. But, Spain has proposed a new legislation to allow women to take several days of “menstrual leave” each month. If the legislation is approved, Spain will become the first Western country to have such a legal measure for menstruating women. The proposed law would introduce at least three sick days each month for women who suffer from severe period pains.

In Zambia, as of 2015, women are legally entitled to a day off each month due to their menstrual leave policy, known as “Mother’s Day”.[21] If a woman employee is denied this entitlement, she can rightfully prosecute her employer.

The aforementioned laws explicitly mention 2 basic and fundamental factors of the law, firstly that leave shall only be asked in case of severe pains and other being that such a leave is granted only on the First and Second days of her periods.

Case laws and Petitions filed regarding menstrual leave across the world

A recent Human Rights Commission complaint highlighted the confusion around using sick leave for menstrual pain. The complaint concerned a manager who criticised an employee for using one day of sick leave for period pain[20]. The complainant argued this constituted gender discrimination under the Human Rights Act 1993. The matter was referred to the Human Rights Review Tribunal and the parties reached a confidential settlement. Many consider the settlement to be an important recognition of the legitimacy of paid sick leave for illness and pain caused by menstruation. However, some argue the case illustrates the need for dedicated menstrual leave that is additional to sick leave. Additionally, despite being able to use sick leave for menstrual symptoms, some people argue employees should not have to use their sick leave for biological symptoms beyond their control.

In Delhi Labour Union vs UOI & Anr[21], The High Court of Delhi asked the Centre and the AAP government to treat as a representation a PIL seeking grant of paid leave to women employees during menstruation in accordance with the law, rules, regulations and policy applicable to such matters as soon as possible and practicable. The PIL that was filed by Delhi Labour Union(Petitioner), also sought directions to the respondents to provide special casual leave or paid leave as well as to ensure separate and clean toilet facilities, periodic rests and free sanitary napkins to women employees during their menstruation period.

Women employees have been fired, demoted, and have suffered harassment on the job because of menstruation and its intersection with gender, race, class, disability, and other identities. Women  have claimed that such adverse treatment is illegal and a violation of their civil rights. Because menstruation in general is under discussed in society and law, there are only a few case decisions involving employment discrimination claims by women.

In US, the earliest federal case appears to be Harper v. Thiokol Chemical Corp.[22] decided in 1980 by the Fifth Circuit. Since then, the Equal Employment Opportunity Commission (“EEOC”), which hears federal public employees’ complaints of discrimination, issued a decision in a harassment claim[23]. In addition, there are two federal court cases that discuss claims of disability discrimination due to menstruation. And most recently, in a federal case, an employee alleged that her employer fired her because she unexpectedly bled through her clothes on the job[24]. In the case, employees have had some success under these theories, such as in the Harper case. In Harper, the employer precluded Bertha Harper from returning to work after her maternity leave until she had a “normal menstrual cycle.” The employer eventually terminated Harper, who then sued claiming sex-based discrimination. The district court found the employer had in fact discriminated against Ms. Harper because of sex. Accordingly, the court held, a company policy conditioning employment on an employee’s menstrual cycles without any business justification is sex-based discrimination.

In Jirak v. Federal Express Corp, the Southern District of New York[25] determined that “menstrual cramps are not a medical condition related to pregnancy or childbirth.” Therefore, the court ruled against the plaintiff because it found that discrimination on the basis of menstruation was not sex-based discrimination.

In Hart v. Malabar Pharmacy, LLC[26], an employee sought medical treatment for a “prolonged, five-month period of menstruation.” She received a blood transfusion and diagnosis of PCOS. She was given a doctor’s note instructing her to “stay home for ten days and avoid strenuous work thereafter.” On the eighth day, her employer instructed her to report to work, which she did. While at work, she was asked to mop, an activity prohibited by her medical condition. As a result of her refusal to mop, she was fired. The court held that the plaintiff’s five-month menstrual period and accompanying PCOS diagnosis sufficed as a disability under the ADA.

In Schmidt v. Solis, Janet Schmidt[27] sued her employer, the Department of Labor, under the Rehabilitation Act for discriminating against her because of her disability, adhesive disease of the pelvis and endometriosis. This disability caused her menstrual cycles to be “abnormal, painful, and often accompanied by profuse and uncontrollable bleeding” as well as loss of bowel control. Her employer provided her the accommodation of “flexiplace,” a flexible location to work, and “flexitime,” a flexible work schedule, which permitted her to avoid commuting and periodic rest as required due to her painful and uncontrollable bleeding. The District Court found that the Department of Labor discriminated and retaliated against Ms. Schmidt when it revoked her flexible work schedule despite having proper medical documentation of the need for the accommodation for her disability. She received the maximum amount of compensatory damages, $300,000.

Accordingly, from the review of publicly available cases, it appears that some employees are being discriminated against in the workplace due to menstruation. Employees and employers need to understand that discrimination on the basis of menstruation may be actionable. It is important to consider if flexibility can be extended to other stigmatized health conditions (for example, irritable bowel syndrome, mental health disorders, HIV), so that the menstrual leave do not perpetuate discrimination.

Conclusion

Although, there have been many pro-women policies introduced by the successive Governments around the world for equal participation and equal treatment of women employees, the aspect of period leave has mostly remain untouched. Menstrual leave is a labor protection policy, especially for the female workers. This policy is based on consideration of the concept of a welfare state and the protection of human rights. In the laws and regulations around the world, the menstrual leave policy is contained while concerning Manpower. Nevertheless, the implementation of the menstrual leave still requires a number of requirements that tend to cause discrimination for women. Menstrual leave on the one hand is a gender sensitive policy, but on the other hand it places women as secondary workers. Taking menstrual leave has an effect on performance appraisal and wage deductions. As a result, the female workers work by taking painkillers during their menstrual period, or even taking menstrual delayers in order to work optimally.

WRITTEN BY: SHIRSTI

References

[1] Melican, C., & Mountford, G. (2017). Why we’ve introduced a menstrual policy and you should too. https://www.vwt.org.au/blog-menstrual-policy/

[2] Cox, J. (2017, July 11). Menstrual leave: Indian company offers women day off on first day of their periods. The Independent. 

www.independent.co.uk/News/business/news/mestrual-leave-indian-company-culture-machine-period-women-workers-first-day-off-holiday-a7834796.html

[3] “Policy Brief: Women and Menstruation in the EU”. Eurohealth.

[4] Price, Catherine (11 October 2006). “Should women get paid menstruation leave?”

[5] Vrinda Aggarwal, Leave to Bleed: A Jurisprudential Study of the Policy of Menstrual Leaves, 8 JILS 1,8-9 (2017)

https://livewire.thewire.in/author/sanjukta-bose/

[6] UNFPA, Menstruation and human rights

https://www.unfpa.org/menstruationfaq

[7] Raju Majhi, Right to sanitation-a human right,Vol.6 Issue 6, FRCIJ,1 (2018)  https://medcraveonline.com/FRCIJ/FRCIJ-06-00255.pdf

[8] Muller v. Oregon, 52 L.Ed. 551

[9] Ninong Ering and abhishek Ranjan, Menstruation bill is necessary for gender equality in workplace, striking Balance between health and career, firstpost, (Jan 10, 2018, 05:04 PM),

https://www.firstpost.com/india/menstruation-bill-is-necessary-for-gender-equality-in-workplace-striking-balance-between-health-and-career-4296599.html

[10] Maneka Gandhi v. Union of India, AIR 1978 SC 597

[11] A.K. Gopalan v. Union of India, AIR 1950 SC 27

[12]  E.P. Royappa v State of Tamil Nadu, AIR 1974 SC 555

[13] INDIA CONSTI. Art. 32

[14] Kesvananda Bharti v. State of Kerala AIR 1973 SC 1461

[15] J.N. Pandey, Constitutional Law of India 474 (55th ed. 2018)

[16] INDIA CONSTI. Art. 42

[17] Labour Standards Law (Law No. 49 of 7 April 1947)

https://www.ilo.org/dyn/natlex/docs/WEBTEXT/27776/64846/E95JPN01.htm#a064

[18] “Once again, court orders menstrual leave payout”

[19] Kuntala lahiri-dutt and Kathryn robinson, ‘period problems’ at the coal face, 89 FR 108 (2008)  https://crawford.anu.edu.au/pdf/staff/rmap/lahiridutt/JA3_KLD_Robinson_Period_Problems.pdf

[20] Josephine Franks, Women  criticised by manager for taking sick day for period pain settles complaint

https://www.stuff.co.nz/business/127875957/woman-criticised-by-manager-for-taking-sick-day-for-period-pain-settles-complaint

[21] Delhi Labour Union vs UOI & Anr, 2022 LiveLaw (Del) 665

[22] Harper v. Thiokol Chem. Corp., 619 F.2d 489, 493 (5th Cir. 1980).

[23] EEOC v. H.S. Camp & Sons, Inc., 542 F. Supp. 411, 449-50 (M.D. Fla. 1982).

[24] Schmidt v. Solis, 891 F. Supp. 2d 72, 75-77 (D.D.C. 2012); Complaint

[25] Jirak v. Fed. Exp. Corp., 805 F. Supp. 193, 195 (S.D.N.Y. 1992)

[26] Hart v. Malabar Pharmacy, LLC, No. 6:19-cv-2347-Orl-31LRH, 2020 WL 1665869, at *2 (M.D. Fla. Apr. 3, 2020).

[27] Schmidt v. Solis, 891 F. Supp. 2d 72, 81 (D.D.C. 2012).

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