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Three federal judges in Chicago let it be known in irrepressible detail Aug. 3 whether a utility company’s failure to provide a portable potty for a female and other linemen who work “in the field” constitutes a hostile work environment and is a form of sexual harassment. In a 2 to 1 decision, two former chief judges, Richard A. Posner and William J. Bauer, insisted the legal argument made on behalf of the female plaintiff was too much of a stretch for them. And the all male majority upheld a trial judge’s recent decision to throw the case out of court. DeClue v. Central Illinois Light Co., No 00-1117. According to the majority opinion written by Posner, it’s not the defendant-company’s fault under Title VII of the Civil Rights Act that men have an easier time going to the bathroom in the open air than their women counterparts who are more inhibited due to “social or psychological” factors. To be sure, Posner said that the lack of a portable potty for field workers, be they male or female, was an “intolerable” working condition. And it could even have constituted sexual discrimination under a “disparate treatment” theory, he noted, had a privy been made available to male workers only. But, concluded Posner, he could find no “hostile environment” in this case, since the plaintiff’s male co-workers were without the means to relieve themselves in privacy, too. In response, the lone dissenting judge on the panel, Ilana Diamond Rovner, made it clear she had no more use for the majority’s reasoning than she did for a two-dollar pay toilet. “As [even] 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. Not simply because women may be more reticent about relieving themselves in the open, I might add. “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.” As a result, argued Rovner, the “refusal to provide female employees with restrooms can be understood as creating a hostile work environment” and, therefore, tantamount to illegal sexual harassment. The attorneys involved in the case could not immediately be reached for comment. The losing side, heading by David O. Edwards and Carole Hansen Posegate of Springfield, Ill.’s Giffin, Winning, Cohen & Bodewes, has until early September to file an appeal to the U.S. Supreme Court. The lawsuit had been brought on behalf of Audrey Jo DeClue who was the first female lineman for Central Illinois Light Company when she started her new career in 1994. As it so happens, Rovner is also a pioneer of sorts in that she was the first woman to be appointed to the federal appellate court in Chicago. “When my nomination to the Court of Appeals was announced in 1992,” she reminisced at one point in her dissent, “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!” Nevertheless, insisted Posner, Rovner’s view that a sexual harassment case had been made was legally dangerous because it would make the judicially recognized disparate impact theory “synonymous” with the separate hostile work environment doctrine, thereby “erasing” the important and equally-established “we did everything we could to prevent sexual discrimination” defense normally available to employers.

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