DeClue, Audrey J. v. Central IL Light Co ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1117
Audrey Jo DeClue,
Plaintiff-Appellant,
v.
Central Illinois Light Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 98-C-1276--Michael M. Mihm, Judge.
Argued June 9, 2000--Decided August 2, 2000
Before Bauer, Posner, and Rovner, Circuit Judges.
Posner, Circuit Judge. This suit under Title VII
by a female lineman for an electric company
requires us to decide whether an employer’s
failure to alter working conditions that just
happen, without any discriminatory intent, to
bear more heavily on its female than on its male
employees can be an actionable form of sexual
harassment.
The plaintiff, who became an apprentice lineman
in 1994, complains about various acts of sexual
harassment that occurred beginning then. But she
did not file a complaint with the EEOC until
1997, and the judge ruled that she could not
reach back to incidents that had occurred more
than 300 days before that filing, the applicable
period of limitations. Finding insufficient
evidence of harassment during the 300-day window,
he granted summary judgment in favor of the
defendant.
The plaintiff invokes the "continuing violation"
doctrine, but that doctrine comes into play in a
sexual-harassment case only when the plaintiff
was reasonable not to perceive her working
conditions as intolerable until the acts of
harassment had, through repetition or cumulation,
reached the requisite level of severity. E.g.,
Garrison v. Burke, 165 F.3d 565, 569-70 (7th Cir.
1999); Galloway v. General Motors Service Parts
Operations, 78 F.3d 1164, 1167 (7th Cir. 1996);
Bullington v. United Air Lines, Inc., 186 F.3d
1301, 1310 (10th Cir. 1999). The incidents that
occurred in this case before the 300-day
limitations period included 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. Nothing that happened later,
that is, within the period of limitations, added
materially to the conditions of which she
complains; it was just more of the same. The
earlier incidents thus put her on notice, and so
she can no longer base a claim upon them. Miller
v. American Family Mutual Ins. Co., 203 F.3d 997,
1004 (7th Cir. 2000); Minor v. Ivy Tech State
College, 174 F.3d 855, 857 (7th Cir. 1999);
Provencher v. CVS Pharmacy, 145 F.3d 5, 14-15
(1st Cir. 1998).
The only significant act--omission would be more
precise--of alleged sexual harassment that
occurred during the limitations period was 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 assigned--in fact the only woman lineman
employed by the company. Linemen work where the
lines are, and that is often far from any public
restroom; nor do the linemen’s trucks have
bathroom facilities. Male linemen have never felt
any inhibitions about urinating in the open, as
it were. They do not interrupt their work to go
in search of a public restroom. Women are more
reticent about urinating in public than men. So
while the defendant’s male linemen were
untroubled by the absence of bathroom facilities
at the job site, the plaintiff was very troubled
and repeatedly but unsuccessfully sought
corrective action, for example the installation
of some sort of toilet facilities in the
linemen’s trucks.
The question is whether the defendant’s failure
to respond to the plaintiff’s request for
civilized bathroom facilities can be thought a
form of sexual harassment, and we think it can
not be. This is not because no reasonable person
could think an absence of bathroom facilities an
intolerable working condition; in most
workplaces, such an absence would clearly be
thought that. And it is not because Title VII
creates remedies only against intentional
discrimination. An employee may also complain
about an employment practice that while not
deliberately discriminatory bears harder on the
members of a protected group, that is, in the
jargon of discrimination law, has a "disparate
impact" on that group, and the employer "fails to
demonstrate that the challenged practice is job
related for the position in question and
consistent with business necessity." 42 U.S.C.
sec. 2000e-2(k)(1)(A)(i); see, e.g., Griggs v.
Duke Power Co., 401 U.S. 424, 431 (1971); Wards
Cove Packing Co. v. Atonio, 490 U.S. 642, 645-46
(1989); Vitug v. Multistate Tax Comm’n, 88 F.3d
506, 513 (7th Cir. 1996). Therefore, insofar as
absence of restroom facilities deters women
(normal women, not merely women who are
abnormally sensitive) but not men from seeking or
holding a particular type of job, and insofar as
those facilities can be made available to the
employees without undue burden to the employer,
Watson v. Fort Worth Bank & Trust Co., 487 U.S.
977, 998 (1988); Davey v. City of Omaha, 107 F.3d
587, 593 (8th Cir. 1997), the absence may violate
Title VII. Cf. Lynch v. Freeman, 817 F.2d 380,
387-89 (6th Cir. 1987). We need hardly add that
women are not "unreasonable" to be more sensitive
about urinating in public than men; it is as
neutral a fact about American women, even though
it is a social or psychological rather than
physical fact, as the fact that women’s upper-
body strength is on average less than that of
men, which has been held in disparate-impact
litigation to require changes in job requirements
in certain traditionally male job categories.
Berkman v. City of New York, 705 F.2d 584 (2d
Cir. 1983); Blake v. City of Los Angeles, 595
F.2d 1367, 1375 (9th Cir. 1979); cf. Evans v.
City of Evanston, 881 F.2d 382 (7th Cir. 1989).
But this case has not been litigated as a
disparate-impact case. Neither the term nor any
synonym appears anywhere in the record. The
briefs are silent about it too. The plaintiff has
insisted on litigating her case as a hostile-
work-environment case throughout. But it is not.
Sexual 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 ("hostile
work environment" harassment), and also to
efforts (normally by supervisors) to extract
sexual favors by threats or promises ("quid pro
quo" harassment). Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 752 (1998). (Occasionally
men can complain of sexual harassment too, but we
can disregard such cases.) 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.
The requirements for proving, and the defenses
to, charges of sexual harassment have been
configured in light of the distinct nature of
that form of sex discrimination. The principal
defense that the law recognizes to a hostile-
work-environment sexual-harassment charge, the
charge made here, is that the defendant had done
all he could to prevent the harassment, id. at
765; the principal defense to a disparate-impact
claim is, as the statutory provision and cases
that we cited earlier make clear, that the burden
on the defendant of eliminating the disparity
would be too heavy. By failing to present her
case as one of disparate impact, the plaintiff
prevented the defendant from trying to show that
it would be infeasible or unduly burdensome to
equip its linemen’s trucks with toilet facilities
sufficiently private to meet the plaintiff’s
needs. She has waived what may have been a
perfectly good claim of sex discrimination,
though that we need not decide.
Of course, as a purely semantic matter, it might
be possible to argue that an employer who fails
to correct a work condition that he knows or
should know has a disparate impact on some class
of his employees is perpetuating a working
environment that is hostile to that class. But if
this argument were accepted, it would make
disparate impact synonymous with hostile work
environment, erasing the important distinctions
mentioned in the preceding paragraph.
The district judge was therefore right to grant
summary judgment in favor of the defendant.
Affirmed.
ROVNER, Circuit Judge, dissenting in part. When
my nomination to the Court of Appeals was
announced in 1992, the late Judge Walter J.
Cummings wrote me a kind note of congratulations
that ended with the observation, "At long last,
the ladies’ room off the [judges’] conference
room will have some use!"
Thank goodness there was a women’s room! When
women like Audrey Jo DeClue arrive in workplaces
that hitherto were all-male, they often discover
that the facilities for women are inadequate,
distant, or missing altogether. See Gail Collins,
Potty Politics: The Gender Gap (Installation of
Bathrooms for Women), Working Woman, March 1, 1993,
at 93. Women know that this disparity, which
strikes many men to be of secondary, if not
trivial, importance, can affect their ability to
do their job in concrete and material ways. As
recently as the 1990s, for example, women elected
to the nation’s Congress--which had banned gender
discrimination in the workplace some 30 years
earlier--found that without careful planning,
they risked missing the vote on a bill by heeding
the call of nature, because there was no restroom
for women convenient to the Senate or the House
chamber. See Catherine Strong, When a congressman
needs a commode, he strides . . ., Associated Press,
June 22, 1997; Lois Romano, On the Hill, The
Gender Trap; Breaking Into the Congressional
Cloakroom, Washington Post, March 6, 1990, at C1.
As my colleagues acknowledge, when an employer
provides no restrooms at all to its employees and
expects them to relieve themselves outdoors, the
burden falls more heavily on women than it does
on men. Ante at 3-4. Not simply because women may
be more reticent about relieving themselves in
the open, I might add. See ante at 3. The fact
is, biology has given men less to do in the
restroom and made it much easier for them to do
it. If men are less reluctant to urinate
outdoors, it is in significant part because they
need only unzip and take aim. And although public
urination is potentially a crime whether
committed by a man or a woman, see, e.g., People
v. Duncan, 631 N.E.2d 803, 804 (Ill. App. 1994)
(disorderly conduct); Elliott v. State, 435
N.E.2d 302, 303-04 (Ind. App. 1982) (public
indecency), the risk of being caught in the act
is arguably greater for women, for whom it is a
more cumbersome, awkward, and time-consuming
proposition./1 For all of these reasons, I agree
with my brothers that an employer’s failure to
provide restroom facilities for its workforce can
support a disparate-impact claim for female
employees. Ante at 3-4.
But there are respects in which the refusal to
provide female employees with restrooms can be
understood as creating a hostile work environment
as well. See Kline v. City of Kansas City, Mo.
Fire Dep’t, 175 F.3d 660, 668 (8th Cir. 1999) (as
to hostile environment claim, error to exclude
evidence of ill-fitting clothing and unequal
bathroom facilities provided to female fire
department employees), cert. denied, 120 S. Ct.
1160 (2000). Restroom facilities are, after all,
the norm in the workplace, and the refusal to
provide such facilities to workers is, most would
agree, an act which alters the terms and
conditions of one’s employment. See generally
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
67, 106 S. Ct. 2399, 2405 (1986) (describing
elements of hostile environment claim). There may
be some work environments in which it is not
feasible to make any type of relief facilities
available to employees, but DeClue’s was not one
of them. For at least one two-week period, she
was given the use of a "port-a-potty", and
eventually, after she filed a charge with the
EEOC, the company began providing "Brief Reliefs"
(disposable urine bags) and privacy tents for
DeClue and the other lineworkers to use at
jobsites. Granted, the refusal to provide
restrooms and comparable facilities is somewhat
different from the affirmative acts of sexual and
sex-based harassment that we typically see in
hostile environment cases. Cf. 29 C.F.R. sec.
1604.11(a) (2000); Baskerville v. Culligan Int’l
Co., 50 F.3d 428, 430-31 (7th Cir. 1995).
Nonetheless, when, in the face of complaints, an
employer fails to correct a work condition that
it knows or should know has a disparate impact on
its female employees--that reasonable women would
find intolerable--it is arguably fostering a work
environment that is hostile to women, just as
surely as it does when it fails to put a stop to
the more familiar types of sexual harassment. Cf.
Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465
(7th Cir. 1990). Indeed, the cases teach us that
some employers not only maintain, but
deliberately play up, the lack of restroom
facilities and similarly inhospitable work
conditions as a way to keep women out of the
workplace. See, e.g., Catlett v. Missouri Highway
and Transp. Com’n, 828 F.2d 1260, 1265-66 (8th
Cir. 1987), cert. denied, 485 U.S. 1021, 108 S.
Ct. 1574 (1988); Kilgo v. Bowman Transp., Inc.,
789 F.2d 859, 874-75 (11th Cir. 1986); see also
E.E.O.C. v. Monarch Machine Tool Co., 737 F.2d
1444, 1447 (6th Cir. 1980); see generally Vicki
Schultz, Telling Stories About Women and Work:
Judicial Interpretations of Sex Segregation in
the Workplace in Title VII Cases Raising the Lack
of Interest Argument, 103 Harv. L. Rev. 1749, 1832-
39 (1990).
The evidence in this case supports a hostile
environment claim. First, although DeClue
complained about the lack of relief facilities
repeatedly, the electric company did not make
them available on a consistent basis until late
1997 or early 1998, after she filed her EEOC
charge. Second, the alternatives that the company
offered in response to DeClue’s complaints--the
use of a truck to drive to the nearest public
facility, or summoning a supervisor or
troubleshooter to take her to such a facility
when a truck was unavailable--were both
impractical (the nearest restroom might be ten or
twenty miles away from the jobsite, as might be
the nearest supervisor or troubleshooter, see
DeClue Dep. vol. 1 at 120-22) and served only to
stigmatize her. Her co-workers, in fact, made
harassing remarks about this very subject,/2 and
in one of DeClue’s performance evaluations, her
crew leader wrote that "a wom[a]n on the job of
this type makes it hard with restroom
facilities." DeClue Dep. Ex. 11 at 2./3 Third,
on jobsites that were literally out in the open,
with no trees or shrubs to hide behind, male and
female workers were forced to relieve themselves
with almost no privacy whatsoever: DeClue’s male
co-workers regularly urinated in her presence (a
practice that she complained about to no avail);
and on at least one occasion, she discovered to
her chagrin that the bulldozer behind which she
had chosen to relieve herself had given her
privacy from her co-workers and passing traffic,
but not from a crotchety resident who lived
nearby. DeClue Dep. vol. 1, at 126-28. Fourth,
the lack of appropriate accommodations deprived
DeClue of privacy among male co-workers who made
a habit of keeping (and presumably viewing)
pornographic magazines in company offices and in
many company trucks--a practice that could only
have increased the discomfort DeClue (and any
reasonable woman) would have experienced
relieving herself in the open. I dare say that if
the tables were turned, and all but one of the
employees in this environment were women, a
reasonable man would be equally reticent to drop
his trousers in order to relieve himself.
DeClue’s complaints are proof enough that she
found the lack of relief facilities
objectionable, and these circumstances certainly
permit the inference that any reasonable woman
would have felt the same. The defendant’s failure
to remedy the problem in turn could be viewed as
a negligent response that subjects it to
liability for a hostile work environment. Cf.
Guess, 913 F.2d at 465.
Discrimination in the real world many times does
not fit neatly into the legal models we have
constructed. Venters v. City of Delphi, 123 F.3d
956, 975 (7th Cir. 1997); Tomsic v. State Farm
Mut. Auto. Ins. Co., 85 F.3d 1472, 1476 (10th
Cir. 1996). The hostile environment theory itself
was not one that Congress anticipated or provided
for in the express terms of Title VII, but
instead is one that scholars, the E.E.O.C., and
judges have fashioned in acknowledgment of a very
real and invidious form of sex discrimination in
the workplace. See Meritor, 477 U.S. 57, 106 S.
Ct. 2399./4 Because prejudice and ignorance have
a way of defying formulaic constructs, the lines
with which we attempt to divide the various
categories of discrimination cannot be rigid.
DeClue’s complaint, insofar as it concerns the
lack of restroom facilities, may fit more
naturally into the disparate-impact framework
that my colleagues discuss, but it also overlaps
with the hostile environment framework into which
she has placed it. It should be allowed to
proceed within that framework.
Therefore, although I join my colleagues in
concluding that DeClue cannot complain of
discriminatory incidents that occurred outside of
the limitations period (ante at 2), I
respectfully dissent from their holding that the
failure to provide appropriate relief facilities-
-which failure did occur within the limitations
period--cannot be pursued as a hostile
environment claim.
/1 DeClue herself was the subject of at least one
complaint from a customer who saw her urinate
outdoors. DeClue Dep. vol. 1 at 125-29.
/2 Her crew leader, for example, allegedly made the
following types of remarks: "You’re just like my
damn kids. I’m ready to leave and I have to wait
for them to go to the bathroom"; "You’ve got the
bladder of a three-year-old"; and "We’ll never
get to the job ’cause I’m sure we’ll have to stop
in Edwards for you to piss there too." Complaint
at 7 para. 39.
/3 Her employer removed the comment from the
evaluation at DeClue’s request. See DeClue Dep.
Ex. 11A, at 2.
/4 For another example of how our thinking about
discrimination has evolved, consider the
Pregnancy Discrimination Act of 1978, 42 U.S.C.
sec. 2000e-(k), which made clear that Title VII’s
ban on sex discrimination included discrimination
based on pregnancy and so overruled General Elec.
Co. v. Gilbert, 429 U.S. 125, 97 S. Ct. 401
(1976). Gilbert held that a workplace insurance
plan covering non-occupational disabilities other
than pregnancy did not discriminate against women
per se, but simply favored "nonpregnant persons"
over pregnant women. See id. at 135, 97 S. Ct. at
407, quoting Geduldig v. Aiello, 417 U.S. 484,
496-97 n.20, 94 S. Ct. 2485, 2492 n.20 (1974).