Other Than Honorable Discrimination

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the most comprehensive federal civil rights law that exists related to the workplace. Its goal is to help people who serve in the military reintegrate back into civilian work and remain attached to the workforce. It does so by offering a mix of anti-discrimination protection and labor standards. Despite the promise of robust reemployment rights and post-service assistance, Congress has excluded people with a certain “character of service,” including those with “other than honorable” separations, from these protections. This statutory exclusion has a disparate impact on people with service-connected disabilities, servicemembers who have experienced military sexual trauma, and troops with caregiving responsibilities. This Article proposes an end to this discriminatory exclusion along with a way to improve USERRA’s accommodation rights. In so doing, the Article explores how this exclusion contravenes the original congressional intent. It also situates the proposal in an over seventy-five-year history of expanding the law after every major conflict on fairness grounds to reflect the military reality of the time. Finally, the Article counters some anticipated critiques of the proposal and places it within a growing series of military supportive movements (such as the emergence of veterans courts and changes to the way post-traumatic stress disorder, traumatic brain injury, and military sexual trauma are handled) as well as ongoing employment-law efforts (like calls to ban the box)

The Legal Framework for States as Employers-of-Choice in Workplace Flexibility: A Case Study of Arizona and Michigan

Outlines the statutes, regulations, executive actions, and collective bargaining agreements that authorize flexible work arrangements, time off, and career flexibility in the two state workforces; the elements of model programs; and their benefits

The Ground on Which We All Stand: A Conversation About Menstrual Equity Law and Activism

This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis. This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal changes. The authors then turn to conceptual issues about the relationship between menstrual equity and gender justice, as well as the difference between equity and equality. The essay concludes with consideration of the future of menstrual equity and menstrual justice work. The authors envision an expanded, inclusive group of individuals working for greater gender justice

Menstrual Dignity and the Bar Exam

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through bag outs test takers’ menstruation as well as their birth-assigned sex — an especially difficult problem for transgender, genderqueer/nonbinary, and intersex individuals who do not wish to share that information. The authors conducted a study documenting experiences with menstruation and the bar exam and examined BOLE policies and practices relevant to menstruation. The Article uses the data from these studies to delineate the contours and substance of the problem. To guide this analysis, the Article also analyzes BOLE policies under the Equal Protection Clause and local human rights laws, determining that current policies are likely unconstitutional and discriminatory. Finally, the Article proposes a comprehensive Model Policy that appropriately balances BOLE concerns against the important principles of privacy and respect, fairness and non-discrimination, promoting health, providing accommodations, and transparency. If adopted, the Model Policy would bring BOLE policies closer to the goals of the critical intersectional movements urging diversification of the legal profession, bar exam reform, and menstrual justice

Menstrual Dignity and the Bar Exam

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through bag outs test takers’ menstruation as well as their birth-assigned sex — an especially difficult problem for transgender, genderqueer/nonbinary, and intersex individuals who do not wish to share that information.The authors conducted a study documenting experiences with menstruation and the bar exam and examined BOLE policies and practices relevant to menstruation. The Article uses the data from these studies to delineate the contours and substance of the problem. To guide this analysis, the Article also analyzes BOLE policies under the Equal Protection Clause and local human rights laws, determining that current policies are likely unconstitutional and discriminatory. Finally, the Article proposes a comprehensive Model Policy that appropriately balances BOLE concerns against the important principles of privacy and respect, fairness and non-discrimination, promoting health, providing accommodations, and transparency. If adopted, the Model Policy would bring BOLE policies closer to the goals of the critical intersectional movements urging diversification of the legal profession, bar exam reform, and menstrual justice

Menstrual Justice in Immigration Detention

The menstrual injustices experienced by noncitizens detained in immigration facilities – a particularly vulnerable subset of menstruators in carceral spaces – are largely ignored. Menstruating detainees are forced to rely on the immigration system to provide adequate access to menstrual products, and on detention facilities to engage in safe menstrual management and corresponding dignity. Unfortunately, the immigration system fails many detainees, and the defining characteristics of immigration detention— the lack of access to counsel and significant geographic and social isolation that people in custody face—exacerbate the problem. Despite these isolating factors, detainees are finding ways to share their struggles with menstrual injustices. This Essay aims to categorize, amplify, and contextualize these experiences, and the need for thoughtful reform

Title IX and Menstruation or Related Conditions

Title IX protects against sex-based discrimination and harassment in covered education programs and activities. The Biden Administration\u27s recently proposed Title IX regulations do not, however, include discrimination on the basis of menstruation or related conditions as a form of discrimination based on sex. This comment on the proposed regulations explains why the regulations should include conditions related to menstruation and recommends changes for how to do so

Title IX and Menstruation or Related Conditions

Title IX of the Education Amendments Act of 1972 (“Title IX”) prohibits sex discrimination in educational programs or activities receiving federal financial assistance. Neither the statute nor its implementing regulations explicitly define “sex” to include discrimination on the basis of menstruation or related conditions such as perimenopause and menopause. This textual absence has caused confusion over whether Title IX must be interpreted to protect students and other community members from all types of sex-based discrimination. It also calls into question the law’s ability to break down systemic sex-based barriers related to menstruation in educational spaces. Absent an interpretation that there is explicit Title IX coverage, menstruation will continue to cause some students to miss instruction. Other students may be denied access to a menstrual product or a restroom as needed and face health consequences. They also may be teased and bullied after menstrual blood visibly leaks onto their clothes. Employees, who are also covered by Title IX, may be fired for damaging school property as a result of such leaks.1 People in perimenopause may be denied reasonable modifications like bathroom access, water, or temperature control. Collectively, this creates an educational system that prevents students, faculty, or employees from fully participating in educational institutions and causes harm

Title IX and Menstruation or Related Conditions

Title IX of the Education Amendments Act of 1972 (“Title IX”) prohibits sex discrimination in educational programs or activities receiving federal financial assistance. Neither the statute nor its implementing regulations explicitly define “sex” to include discrimination on the basis of menstruation or related conditions such as perimenopause and menopause. This textual absence has caused confusion over whether Title IX must be interpreted to protect students and other community members from all types of sex-based discrimination. It also calls into question the law\u27s ability to break down systemic sex-based barriers related to menstruation in educational spaces. Absent an interpretation that there is explicit Title IX coverage, menstruation will continue to cause some students to miss instruction. Other students may be denied access to a menstrual product or a restroom as needed and face health consequences. They also may be teased and bullied after menstrual blood visibly leaks onto their clothes. Employees, who are also covered by Title IX, may be fired for damaging school property as a result of such leaks. People in perimenopause may be denied reasonable modifications like bathroom access, water, or temperature control. Collectively, this creates an educational system that prevents students, faculty, or employees from fully participating in educational institutions and causes harm. On July 12, 2022, the U.S. Department of Education (“DOE”) issued a Notice of Proposed Rulemaking “to better align the Title IX regulatory requirements with Title IX\u27s nondiscrimination mandate, and to clarify the scope and application of Title IX and [schools\u27 obligations] to provide an educational environment free from discrimination on the basis of sex, including through responding to incidents of sex discrimination.” On September 12, 2022, the Authors submitted the below Comment asking the DOE to modify existing regulations to cover menstruation-related discrimination in three ways. First, the regulations should include “menstruation or related conditions” from menarche through menopause in the scope of discrimination on the basis of sex. Second, the regulations should include reasonable modifications for “menstruation or related conditions.” Finally, the regulations should provide education on “menstruation or related conditions” to all students and employees, regardless of sex, to tackle barriers related to reporting and eliminating sex-based discrimination and to provide equal access. Only then will Title IX be able to fully live up to its nondiscrimination mandate. This Article contains our Comment asking the DOE to make these changes and explicitly include menstruation or related conditions in Title IX\u27s protections. In addition to our Comment, over 150 of the publicly available rulemaking submissions referenced menstruation and over thirty-five mentioned menopause. Collectively, these comments--from other academics, public health scholars, medical practitioners, clinicians, advocates, and individuals--further demonstrate the need for Title IX to cover menstruation-related discrimination