The Man Known as the "Father of Potty Parity" [1] Has Filed a Federal Complaint Seeking to Declare Providing Insufficient Restroom Facilities for Females is Sexual Harassment, or Even a Violation of Equal Protection
 

    Potty Parity — also known as Restroom Equity or Squatters' Rights [2] — is a growing movement to eliminate the huge disparity between the time men and women wait to use restroom facilities in public places.  Since I wrote the seminal article on the topic, [3] the movement has made great strides, with several states and plumbing codes now requiring a 1-2 ratio between male restroom facilities (urinals plus toilets) and female restroom facilities (toilets). [4] But, so far, the movement has had to rely solely on persuasion.

    Two recent federal appellate court decisions and several other authorities now suggest that places of public accommodation which routinely and repeatedly force women to wait far longer than men in public places to perform the same basic function may be violating the law, and the first federal "potty parity" complaint has now been filed to test that novel legal theory.  If this or subsequent complaints are sustained, it could establish a new legal right, and provide women with an important new weapon for equality in this often-overlooked and frequently-ridiculed area.

Potty Disparity Under Statutory Law

    In Lynch v. Freeman, 617 F.2d 380 (6th Cir. 1987), the Sixth Circuit 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.  In that case the facilities were filthy, which presented a far more serious health problem to women than to men since men don't have to sit to urinate.

    The court held "anatomical differences between men and women are ‘immutable characteristics,’ just as race, color and national origin are."  "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.”   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.”

    Similarly, in DeClue v. Central Illinois Light Company, 223 F.3d 434 (7th Cir. 2000), the majority, although declining to rule that providing toilet opportunities unsuitable for female employees but suitable for male employees (in this case, urinating outdoors) constituted a "hostile work environment," did state that just such a set of facts would rather clearly constitute a sexual harassment claim under the theory of “disparate impact.” [5] Judge Rovner dissented, stating that it would constitute a "hostile work environment," and presumably also sexual harassment, as the majority had indicated.

    Although the DeClue case involved a failure to provide any toilet facilities at all, the underlying principle of both decisions — as several authorities have recognized — is clear: providing opportunities for urination 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. [6]

    While the issue of where to draw the line regarding different numbers and/or ratios of male and female restroom facilities [7] will obviously depend upon the specific facts, it is hard to deny that at some point a significant and persistent disparity in waiting times would become so serious and extreme as to constitute illegal gender discrimination.

    For example, suppose, after my complaint forced the Cosmos Club to abandon its male-only policy and admit female members for the first time, [8] the Club provided only one female toilet even as the female membership grew to twenty-five percent.  This would rather clearly constitute illegal gender discrimination under the "disparate impact" theory, regardless of the Club's motives, since it would place a major and very serious burden on female members compared with male members, and do so solely on the basis of gender.

    Similarly, if after my initial complaint helped force The Citadel to admit its first female cadet, [9] the University had refused to add any additional female restrooms beyond those in the visitor's waiting area, this would obviously constitute sex discrimination against female cadets since, solely because of their gender, they could not perform basic bodily functions in their dormitories as their male colleagues could.

Potty Disparity Under the Constitution

    Under the Equal Protection clause of the U.S. Constitution, as made applicable to the states under the 14th Amendment, state-owned facilities cannot treat members of two different classes differently unless the discrimination passes an often exacting test.  Where the discrimination is based upon gender, the burden is upon the defendant to demonstrate by an "exceedingly pervasive justification" that the action serves "important governmental objectives" and that the means are "substantially related to the achievement of those objectives." [10] In public places, males and females are required to wait — based solely upon their gender — on two different lines to perform the same bodily function.  Presumably defendants would argue that this difference in treatment is justified by the "important governmental objective" of protecting the privacy of the two genders by having two different restrooms.

    However, if the clearly foreseeable and inevitable result of a particular program of gender discrimination 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 important governmental objective if any is served by deliberately constructing the ratio of male to female restroom facilities so that this will occur.  Surely using the same number of square feet for male and female restrooms, which is a common practice, [11] hardly presents an exceedingly pervasive justification for a policy which imposes a very significant additional burden on half the population based solely upon gender. [12]

    In this regard it must be noted that, at any given time, some significant number of females at most places of public accommodation will be pregnant.  For well known reasons, this will mean that many will have to urinate more frequently, and many will suffer additional health problems unique to their pregnant condition if they must hold in their urine while they are forced to wait on restroom lines.  Thus a governmental decision which forces them to wait on a much longer line to urinate solely because of their sex 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 or condition 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"] for women 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.

The Federal Complaint

    In an effort to test these theories, and in the hopes of establishing a federal statutory and/or constitutional right under which women can force public accommodations to reduce the huge disparities which now often exist in waiting time to use the restroom facilities, I am supporting a complaint originally filed by Jean Ledwith King, Esq.  Her complaint and mine have been filed with the Office of Human Rights in the Department of Education office in Cleveland, Ohio, [13] and allege that the planned renovations will not correct the chronic disparity in restroom waiting times at the University of Michigan's Hill Auditorium which, the Detroit Free Press says, is "notorious for its outdated plumbing." [14]

    Currently, the auditorium as 10 female facilities and 14 male facilities. The planned renovation would result in 22 facilities for men and 30 for women.  However, because both everyday experience and detailed studies show that women take approximately twice as long as men to use a public restroom, [15] the King complaint argues that, in line with current codes, the ratio should be at least two to one.

    Regardless of the specific number or ratio of restroom facilities at this particular auditorium, the underlying and far more important purpose of the complaint is to establish that women have a legal cause of action which they can use to help move towards greater equality in restroom waiting times.  Hopefully, women will be able to stand up for their rights, even if they can't always stand up while exercising those rights. [16]
 

NOTES:

[1] "With technology and social change, more and more is feasible these days, according to the man who might claim 'the father of potty parity' as one of his many titles.  Professor John Banzhaf III, of the George Washington University Law School, was a major force behind legislation around the country that increased the ratio of women's toilets to men's in public restrooms -- to shorten the lines for women.  On similar fronts, Banzhaf has pushed litigation to get equal pricing for men and women for haircuts and dry cleaning, and challenged 'Ladies Night' drink specials in saloons. Carter, Spelling Out Relief: Female Workers Argue Lack of Job-Site Toilet Facilities is Unfair, 86 A.B.A.J. 23 (2000)
  See also, Moore, Facility Hostility?, Sex Discrimination and Women's Restrooms in the Workplace, 36 Ga. L. Rev. 599 (2002) ("Professor John Banzhaf, III of George Washington University Law School has been a major force behind state legislation that increases the ratio of women's toilets to men's in public restrooms in order to shorten lines for women.")

[2] For other names which have been applied — or at least suggested (mostly by women) — related to the phenomena, see Bob Levy, Doing Time in the Ladies' Room Line Makes Cathryn a Winner, Washington Post [01/07/94].  These include: urinequity, sheturnity, pee-gatory, herturnity, peenury, pees and queues, men-no-pause, girliqueue, cannery row, sitscrepancy, stalltification, canaraderie, loodicracy, incontinental divide, whoa de toilette, impeetience, fillybuster, lass rites, stand-up commodey, male pee-rogative, loonacy, women's sufferage, sit down's syndrome, no stallgia, waterwait, express male, menvy, male chauvi-whizm, short seatedness, stall waiting, assault and bladdery, and underprivyleged.

[3] Banzhaf, Final Frontier For the Law?, National Law Journal [04/18/90].

[4] The American Society of Theatre Consultants, the Building Officials and Code Administrators International (BOCA), and statutes in Massachusetts, Tennessee, Texas, and Virginia all require two female restroom facilities for every male facility in order to equalize the restroom waiting lines.

[5] 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 2-1 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.”)

[6] 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, . .”

[7] There may be techniques other than increasing the ratio of female to male restroom facilities which might be considered — and which the law might require defendants to at least explore before permitting them to plead "business necessity" as a justification for having long lines at women's restrooms.
  For example, rest rooms shared by both male and female students are increasingly common on college campuses, and are therefore generally accepted by students.  Therefore, at some places of public accommodation, especially on or near college campuses, it might be reasonable to expect that a rest room open to both genders — especially during periods of high demand such as an intermission — might be a reasonable way of eliminating disproportionately long lines waiting the use the women's room.
  This is especially true since many of the objections women might have to sharing a rest room with men are not related to viewing the backs of men standing before urinals, but rather relates to their legitimate fear of rape, assault, or even verbal harassment if a woman is alone in a rest room with one man.   This, however, is very unlikely to occur in a situation in which a large number of people are both using and waiting to use a rest room; e.g., during an intermission at a show.  Moreover, women who have this concern could simply choose to use a mixed-gender rest room only when there are a large number of people on rest room lines, and use female-only rest rooms at times when waiting times are short or non-existent.
  Another technique for reducing if not eliminating the longer waiting times for women is to have one or more restrooms which can be designated "male" or "female" depending on the relative demand by each gender.  For example, for events of the type which normally attract a higher-than-normal percentage of females in the audience (e.g., ballet or ice skating), one or more of these rest rooms could be designated "female," while for those which traditionally attract a predominantly male audience (e.g., boxing or wrestling), the rest room could be designated "male."  Alternatively, staff who see that women are waiting much longer than men at any particular event could redesignate a particular restroom for "women" rather than "men" on the spot.

[8] See, e.g., Lawrence Feinberg, 18 Women End Cosmos Club's 110-Year Male Era, Washington Post [10/12/88] ("John F. Banzhaf III, a George Washington University law professor who brought the discrimination complaint against the Cosmos . . .")

[9] See, e.g., Reed, Judge's Decision Keeps Women Out of VMI At Least For Now, Houston Chronicle [[05/02/94] ("Banzhaf, whose complaint against the all-male policy at The Citadel, in South Carolina, led to the admission of a woman.")

[10] U.S. v. Virginia, 518 U.S. 515 (1996) (holding that women could not be excluded from the Virginia Military Institute); see also Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142 (1980).

[11]  As I pointed out in my original article, "the new problem of restroom equity arises in part from the custom — often dictated by building-design considerations — of making men's and women's restrooms of equal size.  Since at least two urinals usually can be put in the floor space required for each toilet stall, men's restrooms frequently have a larger number of facilities (urinals and toilets) than do women's.  In addition, it usually requires less time to use a urinal than it does to use a toilet.  Thus, even the provision of an equal number of facilities, rather than simply equal floor space, would still result in considerably longer waits in women's restrooms if demand is comparable." . . .
  "Thus, to provide equality of results, more than equal space, equal access or even an equal number of facilities may be required.  In other words, if women are not to be forced to endure waits much longer than men during intermissions at theaters, for example, it would seem women's rooms may have to be far larger than men's rooms, and have substantially more toilets than the total number of toilets and urinals in the men's room."

[12] Perhaps another way of framing the argument is to note that the doctrine of "separate but equal" was long used to justify having separate restrooms (as well as schools and other establishments) based upon race.  The argument was that the Equal Protection clause mandate of equality of treatment did not necessarily require that different groups be admitted to the same facilities, but only that the facilities be substantially equal for each group.  Although we no longer permit separate restrooms based upon race, we do have separate restrooms based upon gender (because of the importance of privacy).  But surely, at the very least, such gender-separated facilities must provide substantially equal treatment for both genders — i.e., they must be both separate and equal — something which is not true when women have to wait on much longer lines than men, and often must face the difficult choice of missing part of a concert or sporting event, or "holding it in" at least until the event is over.

[13] See, e.g., Professor Joins Case Urging Hill Potty Parity, Ann Arbor News [[07/16/02]; Restroom-Space Complaint Filed, Suit Says U-M Lacks Facilities For Women, State News [07/15/02].

[14] Maryanne George, Complaint Says University of Michigan Auditorium Has Unfair Facilities for Women, Detroit Free Press [06/12/02].

[15] Two scholarly studies have shed some light on the question men always seem to ask women: "What took you so long in there?" The first was a doctoral dissertation by Sandra Rawls about "patterns of behavior in the use of male-female restrooms." The second is a funded study being conducted by Prof. Savannah Day to learn what people do in public restrooms.  According to Professor Day's study, women frequently spend twice as long as men in the restroom. See Baker, Relief Sought From Restroom Traffic, Washington Post [02/04/88].

[16] Actually, some have suggested that one answer to women's demand for equality of waiting time is to require them to follow men's example and give up their privacy for increased speed and efficiently in urination by using a standing position.  Scientific studies have demonstrated that a woman can in fact urinate standing up, probably as well as a man, provided that she tilts her pelvis. (see photographs in Figure 52, [Comparative Male and Female Urination Postures]), Alexander Kira, "The Bathroom" (1977) at 255-260.
  What is arguably a somewhat more practical approach is to provide a device specifically designed to permit women to urinate standing up — and in close proximity to each other rather than in separate stalls to save restroom space — just like men.  Such devices — called either urinettes or she-inals —  have been described as looking like "a cross between a gas pump and a urinal . . . designed by Martians," and are in use in a number of places.  See, e.g., Fern Shen, Md. Stadium May Install Novel Equal Plumbing Units, Washington Post [01/26/91]  For pictures of one actually in use at a Dairy Queen outlet, see http://urinal.net/diary_queen.html.
  Another approach is a funnel-like device which is manufactured to permit women to urinate standing up, primarily when outdoors or when using restrooms in foreign countries which don't have conventional toilets.  However, the devices reportedly also permit women to use urinals, with one even claiming that it permits a user to "Stand By Your Man" as well as "take a STAND against long lines and wet toilet seats.  Potty Parity is Here!!" [http://womenstandtogo.com]