Question: Lynch v. Freeman 817 F.2d 380 (6th Cir. 1987)
A female carpenter's apprentice sued her employer for gender discrimination, alleging the failure to furnish adequate sanitary toilet facilities at her worksite. The court found the unsanitary facilities violated Title VII.
Lively , J.
The portable toilets were dirty, often had no toilet paper or paper that was soiled, and were not equipped with running water or sanitary napkins. In addition, those designated for women had no locks or bolts on the doors and one of them had a hole punched in the side. To avoid using the toilets, Lynch began holding her urine until she left work. Within three days after starting work she experienced pain and was advised that the practice she had adopted, as well as using contaminated toilet paper, frequently caused bladder infections. The powerhouse, which had large, clean, fully equipped restrooms, was off limits to construction workers. Lynch testified that some of the men she worked with used them regularly and were not disciplined. Knowing the restrooms were off limits, Lynch began using the powerhouse restrooms occasionally, after her doctor diagnosed her condition as cystitis, a type of urinary infection.
When the infection returned Lynch began using a restroom in the powerhouse regularly and she had no further urinary tract infections. Lynch was eventually fired for insubordination in using the powerhouse toilet. The lower court found that the toilets were poorly maintained. The cleaning was accomplished by pumping out the sewage. This process often left the toilets messy, with human feces on the floors, walls, and seats. The contractors were to scrub down the toilets afterwards, but it appears they often failed to do so. Paper covers were not provided, and the toilet paper, if any, was sometimes wet and/or soiled with urine. No running water for washing one's hands was available near the toilets, although a chemical hand cleaner could be checked out from the "gang-boxes."
The lower court found it credible that most women were inhibited from using the toilets. Further, the inhibitions described were not personal peculiarities, but that Lynch and others reasonably believed that the toilets could endanger their health. Lynch introduced credible medical expert testimony to demonstrate that women are more vulnerable to urinary tract infections than are men. On the basis of that evidence, the court concluded that all increased danger of urinary tract infections may be linked to the practice of females holding their urine and to the use of toilets under the circumstances where the female's bacteria-contaminated hands came into contact with her external genitalia or where a female's perineal area comes into direct contact with bacteria-contaminated surfaces. Few concerns are more pressing to anyone than those related to personal health. A prima facie case of disparate impact is established when a plaintiff shows that the facially neutral practice has a significantly discriminatory impact. Any employment practice that adversely affects the health of female employees while leaving male employees unaffected has a significantly discriminatory impact.
The burden then shifts to the employer to justify the practice which resulted in this discriminatory impact by showing business necessity; that is, that the practice of furnishing unsanitary toilet facilities at the work site substantially promotes the proficient operation of business. Title VII is remedial legislation, which must be construed liberally to achieve its purpose of eliminating discrimination from the workplace. Although Lynch was discharged for violating a rule, she did so in order to avoid the continued risk to her health which would have resulted from obeying the rule. The employer created an unacceptable situation in which Lynch and other female construction workers were required to choose between submitting to a discriminatory health hazard or risking termination for disobeying a company rule. Anatomical differences between men and women are "immutable characteristics," just as race, color, and national origin are immutable characteristics. When it is shown that employment practices place a heavier burden on minority employees than on members of the majority, and this burden relates to characteristics which identify them as members of the protected group, the requirements of a Title VII disparate impact case are satisfied. REVERSED and REMANDED.
1. Are you surprised by this outcome? Why or why not?
2. Does the outcome make sense to you? Explain.
3. What would you have done if you were the employer in this situation?