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Ms. Brenda Redmond CERTIFIED MAIL
Office of Civil Rights
U.S. Dept. of Education RECEIPT REQUESTED
600 Superior Ave. East
Cleveland, Ohio 44114 THIRD (3RD) SUBMISSION
RE: King v. University of Michigan; Banzhaf v. University of Michigan;
Dear Ms. Redmond:
SUMMARY: These joint complaints [THIRD SUBMISSION] allege that:
1. the University of Michigan's renovations of its Hill Auditorium
would provide insufficient rest room facilities for females as compared
2. that this would place a much heavier burden on women who would be forced to wait — solely because of gender — in much longer rest room lines;
3. this disparate impact constitutes unlawful gender discrimination unless it can be affirmatively justified by business necessity;
4. it may also violate the Equal Protection clause of the U.S. Constitution unless the significant disparity in waiting times is substantially related to a sufficiently important governmental interest;
5. this Office, under at least two U.S. Court of Appeals decisions and several additional authorities, has jurisdiction over these issues;
6. therefore your Office should at the very least determine that it has jurisdiction over the general issue and initiate a formal investigation so as to:
A. allow the University of Michigan to be heard formally
B. explore with more precision, and with more detail than is possible in an initial complaint, the underlying factual issues such as the number, location, placement, etc. of different restroom facilities, evidence relating to male and female waiting time both historically at the Hill Auditorium and more generally given different ratios of men's and women's toilet facilities, etc.
C. permit the University to present whatever evidence and arguments it might wish to make regarding the legal key issue of "business necessity"
D. build a record appropriate for eventual judicial review on both the statutory and constitutional issues which are raised.
By this letter I respectfully file a formal complaint of sexual harassment on my own behalf and on behalf of my wife as potential visitors to the Hill Auditorium at the University of Michigan, and in support of the complaint already filed by Jean Ledwith King, Esq., against the University of Michigan and its planned renovations of rest room facilities at the Hill Auditorium.
Ms. King has authorized me to represent to you that she associates herself with my complaint, and adopts and incorporates into her complaint all of its reasoning and arguments under the law. I, likewise, incorporate in my complaint all of her factual allegations.
I most respectfully suggest that failure to provide rest room facilities which take into account the different urinational needs of males and females based upon immutable biological differences may constitute illegal sex discrimination and sexual harassment under a disparate impact theory, and perhaps other statutory legal theories as well. It may also be constitute a violation of the Equal Protection clause of the United States Constitution.
For these two separate and distinct reasons — that imposing a heavier burden on females than upon males with regard to urination constitutes unlawful gender discrimination under federal statute law, and that it also violates the United States Constitution — it appears clear that your office has jurisdiction over these complaints, and should at the very least investigate and/or hold a hearing to provide a complete record upon appeal.
If the University is in violation, this could create liability not only for the University, but also for individual state employees [under 42 U.S.C. 1983] and for federal officials who act in concert [under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)]; see Davis v. Passman, 442 U.S. 228 (1979) (sex discrimination creates a cause of action against a federal official under the U.S. Constitution even in the absence of a violation of any applicable statute).
The following two federal judicial opinions make it clear that this Office has jurisdiction over complaints of this character.
In Lynch v. Freeman, 617 F.2d 380 (6th Cir. 1987), the court held that even providing identical restroom facilities to males and females may constitute sex discrimination because their needs are different for immutable biological reasons. The court held "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.” Id. at 389, emphasis added.
As a result, the Lynch court held that “the plaintiff was entitled to judgment on her disparate impact claim. She established a prima facie case, and [defendant] made no attempt to prove business necessity, the ‘touchstone’ in a disparate impact case.” Ibid., emphasis added. In the instant situation, it is my understanding that the University of Michigan has not – and probably cannot – show that providing restroom facilities which will result in far greater waiting times for females than for males [a "heavier burden"] is justified by any kind of "business necessity."
Similarly, in DeClue v. Central Illinois Light Company, 223 F.3d 434 (7th Cir. 2000), the Seventh Circuit, although declining to rule that providing toilet opportunities unsuitable for female employees but suitable for male employees constituted a "hostile work environment" (a form of sexual harassment and/or sex discrimination), did state that such a set of facts would rather clearly constitute a sexual harassment claim under the theory of “disparate impact.” See, e.g., Spelling Out Relief: Female workers argue lack of job-site toilet facilities is unfair, 86 A.B.A.J. 23 (2002) (“But Judge Richard Posner, writing for the 3-1 majority, chided the plaintiff for not pursuing a disparate-impact claim instead. Posner practically invited a disparate-impact case ‘suggested by the facts.’"); See also, Don't forget about disparate impact, Indiana Employment Law Letter, December, 2000 (“In its written opinion, the Seventh Circuit went to great lengths to say that this case is a ‘classic disparate-treatment claim,’ even though neither party had raised that issue. . . . The fact that the court spent most of its opinion addressing the disparate impact issue when it wasn't relevant to the outcome of the case shows how strongly it felt about it.”)
Although the DeClue case involved a failure to provide any toilet facilities at all, the underlying principle of both decisions is clear: providing toilet facilities which have a significant disparate impact ["place a heavier burden" in the words of the Lynch court] on one of the two genders constitutes sexual harassment, unless the disparate impact can be justified by business necessity. For example, as Larson on Employment Discrimination points out at §15.01, n. 22: “For instance, equal treatment might conceivably require that more toilets per capita be provided women than men, if it can be shown that, because of physical differences, it takes women longer on the average to use toilet facilities.” See also Indiana Employment Law Letter, December, 2000: “Even if you don't intentionally discriminate against your employees on the basis of gender or permit a sexually hostile working environment to exist, you still need to avoid employment policies or practices that have a disparate effect on one gender, . .”
While the issue of where to draw the line regarding different numbers and/or ratios of male and female restroom facilities in places of public accommodation will obviously depend upon the specific facts, it is hard to deny that a some point a significant disparity in waiting times would constitute illegal gender discrimination over which this Office has jurisdiction.
For example. if, after my complaint forced the Cosmos Club to abandon its male-only policy and admit female members for the first time, the Club provided only one female toilet even as the female membership grew to twenty-five percent, this would clearly constitute illegal gender discrimination under the "disparate impact" theory, regardless of the Club's motives.
Similarly, if after my initial complaint helped force The Citadel to admit its first female cadet, the University had refused to add any additional female restrooms beyond those in the visitor's waiting room, this clearly would constitute sex discrimination against female cadets.
In the instant situation, if the University of Michigan planned to increase the number of male restroom facilities from 14 to 22, but planned to add no additional female restroom facilities beyond the existing 10, the resulting disparity in waiting times would be so extreme that a clear prima facie case of gender discrimination would obviously exist. Whether or not increasing the number of female restroom facilities from 10 to 15 or 20 or even 30 goes far enough is a mixed question of law and fact which can only be decided after an factual investigation — but the individual numbers do not affect the fundamental conclusion that this Office does have jurisdiction over the basic issue.
Under the Equal Protection clause of the U.S. Constitution, as made applicable to the states under the 14th Amendment, state actors (including the University of Michigan) cannot treat members of two different classes differently unless the discrimination passes an exacting test. Where the discrimination is based upon gender, the burden is upon the defendant to show that the gender classification is substantially related to a sufficiently important governmental interest. In the instant situation, males and female are required to wait — based solely upon their gender — on two different lines to perform the same bodily function. Presumably the University of Michigan would argue that this difference in treatment is justified by a "sufficiently important government interest" of protecting the privacy of the two different genders.
However, if the clearly foreseeable and inevitable result is that females will be forced to wait significantly longer than males to perform this same basic function in a place of public accommodation owned and operated by the government, it is hard to see what significantly important government interest if any is served by deliberately constructing the ratio of male to female restroom facilities so that this will occur, much less that this interest is "substantially related" to the proportion of the facilities provided to each gender.
In this regard it must be noted that, at any given time, some significant number of females at most public assemblies within the Hill Auditorium will be pregnant. For reasons too well known to require description here, this will mean that many will have to urinate more frequently, and many will suffer additional problems unique to their pregnant condition if they must hold in their urine while they are forced to wait. Thus a governmental decision which forces them to wait on a much longer line to urinate solely because of their gender not only discriminates against all women based upon their gender, but also discriminates [places an even heavier burden] even more seriously against the small class of women who find themselves pregnant at any given time — a susceptibility which is obviously gender related and unique to women.
It must also be noted that, at any given time, a substantial number of females present in the auditorium will be actively menstruating, and must have access to the restroom for that reason as well. This condition — which is also obviously gender related and unique to women — may in at least some cases not only make excessive waiting more difficult and burdensome [a "heavier burden"] than for men of similar age, but it can also lead to medical and health complications related solely to the gender of those forced to wait.
For all of these reasons, it is respectfully suggested and requested that you act upon this complaint promptly and with vigor, or that, at the very least, you conduct an investigation and/or hearing so that whatever claims of "business necessity" are advanced by the respondent can be tested under cross examination and an adequate record established.
At such a hearing, Complainant will also present additional factual arguments including, for example, that the American Society of Theater Consultants, the Building Officials and Code Administrators International (BOCA), and statutes in Massachusetts, Tennessee, Texas, and Virginia all require two female toilet facilities for every male facility in order to equalize the lines, and that the planned renovations fall far short of that emerging standard. This should create at least a prima facie case, subject to any defenses of business necessity, etc. the University may wish to advance
Since this complaint raises serious issues of first impression, and a decision either way is likely to be subject to judicial review, the need for a proper hearing record is even more important than would normally be the case.
Prof. John F. Banzhaf III
PRINCIPAL AUTHORITIES RELIED UPON
Lynch v. Freeman, 617 F.2d 380 (6th Cir. 1987)(even equal restroom facilities for men and women can create prima facie case under disparate impact theory unless differential result can be justified by business necessity
DeClue v. Central Illinois Light Company, 223 F.3d 434 (7th Cir. 2000)(failure to provide restroom facilities for females would be actionable under "disparate impact" theory)
Spelling Out Relief: Female workers argue lack of job-site toilet facilities is unfair, 86 A.B.A.J. 23 (2002) (“But Judge Richard Posner, writing for the 3-1 majority, chided the plaintiff for not pursuing a disparate-impact claim instead. Posner practically invited a disparate-impact case ‘suggested by the facts.’")
Don't forget about disparate impact, Indiana Employment Law Letter, December, 2000 (“In its written opinion, the Seventh Circuit went to great lengths to say that this case is a ‘classic disparate-treatment claim,’ even though neither party had raised that issue. . . . The fact that the court spent most of its opinion addressing the disparate impact issue when it wasn't relevant to the outcome of the case shows how strongly it felt about it.”)
Larson on Employment Discrimination at §15.01, n. 22: “For instance, equal treatment might conceivably require that more toilets per capita be provided women than men, if it can be shown that, because of physical differences, it takes women longer on the average to use toilet facilities.”
Indiana Employment Law Letter, December, 2000: “Even if you don't intentionally discriminate against your employees on the basis of gender or permit a sexually hostile working environment to exist, you still need to avoid employment policies or practices that have a disparate effect on one gender, . .”
NO AUTHORITIES FOR THE VIEW THAT GROSS DISPARITIES IN RESTROOM RATIOS AND RESTROOM WAITING TIMES IS LEGAL, AND THAT THIS OFFICE WOULD HAVE NO JURISDICTION WHATSOEVER OVER THIS BASIC ISSUE, HAVE BEEN FOUND!
To see Prof. Banzhaf's home page, click on: http://banzhaf.net
To see Prof. Banzhaf's page related to "Potty Parity," click on: http://banzhaf.net/pottyparity.html