Mary Anne Case, “All the World’s the Men’s Room,” 74 U Chi L Rev 1655 (2007)

Read it here, you will be absolutely riveted. Below are the first few paragraphs:

“In August 2000, a panel of the Seventh Circuit Court of Appeals upheld the dismissal of Audrey Jo DeClue’s complaint of hostile environment sexual harassment against her employer, the Central Illinois Light Company, for whom DeClue had completed an apprenticeship as a lineman. The panel was unanimous in holding that most incidents of which DeClue complained,”includ[ing] a coworker’s deliberately urinating on the floor near where the plaintiff was working, repeated shoving, pushing, and hitting her, sexually offensive touching, exposing her to pornographic magazines, and:the point she particularly emphasizes:failing to make adequate provision for restroom facilities for her”had occurred”before the 300-day limitations period”and hence were time-barred. With respect to”[t]he only significant act:omission would be more precise:of alleged sexual harassment that occurred during the limitations period[, . . .] the electric company’s continued failure to provide restroom facilities for the plaintiff, who was the only woman in the crew of linemen to which she was as-signed:in fact the only woman lineman employed by the company,”dissenting Judge Ilana Rovner would have allowed DeClue to pursue her hostile environment claim. But, writing for himself and Judge Wil-liam Bauer, Judge Richard Posner held that the”defendant’s failure to respond to the plaintiff’s request for civilized bathroom facilities can[not] be thought a form of sexual harassment.”Because plaintiff had”insisted on litigating her case as a hostile-work-environment case throughout”and had not so much as mentioned the term”disparate-impact”in her papers, the district court had been right, in the majority’s view, to grant summary judgment to the defendant. According to Posner,”hostile work environment”harassment is:

the form of sex discrimination in the terms or conditions of employment that consists of efforts either by coworkers or supervisors to make the workplace intolerable or at least severely and discriminatorily uncongenial to women . . . . It is a form of, rather than a synonym for, sex discrimination. It is remote, for example, from a simple refusal to hire women, from holding them to higher standards than their male coworkers, or from refusing to make accommodations for differences in upper-body strength or other characteristics that differ systematically between the sexes. The last is the classic disparate-impact claim, and it is the claim suggested by the facts of this case but not presented by the plaintiff.

“At the time the DeClue case came down, I was a newcomer to the law faculty of The University of Chicago and had recently begun my still-ongoing work on public toilets as gendered spaces. I knew Dick Posner only well enough to suppose that he would at least indulge, if not revel in, the inquiries of a colleague about positions he had taken. So I emailed him, explaining my particular interest in DeClue and adding that I:

wondered if I could prevail on you in all seriousness to react to a hypothetical to help me understand the scope of your position in that case that”failure to alter working conditions that just hap-pen, without any discriminatory intent, to bear more heavily”on employees of one sex cannot”be thought a form of sex harassment.”Would you have the same reasoning and the same result if the first and only male nurse in a hospital were required to wear exactly the same uniform as his female colleagues had been is-sued from time immemorial:white shirtdress, bonnet, pantyhose and pumps? If not, why not?

“Although I had emailed my query shortly after 10 pm, I received a response in little more than an hour. It read, in its entirety:

That’s not a good example, because the employer would have no reason to require the male nurse to dress that way. Since male nurses don’t want to dress up as women, the employer would have to pay a higher wage to its male nurses (and hence to the female ones as well, because of the Equal Pay Act) to compensate them for the indignity, with no offsetting benefit to the employer. In contrast, the employer saves money by not making an accommodation to women’s desire for greater privacy. Think of a better example!

“At the time, I was speechless. Now, years later, I would like to take the opportunity offered by this commemoration of Judge Posner’s first twenty-five years on the federal bench to explain why I have always remained convinced the example is a good one. The process will lead me to a number of more general observations about the law and the fact of sex discrimination and some speculation about an even more complicated subject:the way Judge Posner’s mind works. …”

–Ann Bartow