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Lack of potty parity may spark sex discrimination claim

by on
in Discrimination and Harassment,Human Resources

Employers in male-dominated industries, take note: Make sure new female hires who work in a largely male environment have access to restroom facilities that meet women’s needs. Don’t expect women to adopt male restroom habits. And don’t provide them with dirty and potentially dangerous facilities.

Instead, aim for “potty parity” by providing adequate facilities. That may include separate bathroom facilities. If lavatories are located far away from workstations, you also may need to provide longer breaks.

Recent case:
Cassandra Johnson took a temporary job as a crane operator during a strike. She was one of just a handful of women working at a site dominated by male operators. The company required Johnson and the others to work 12-hour shifts with no breaks.

Johnson asked when she could take bathroom breaks. The answer shocked her: No breaks were allowed. Supervisors allegedly told her she would have to do what the men did—lean out and urinate over the side of the crane.

She declined to do so, reasoning that her anatomy didn’t make that solution feasible. She left the job and sued for sex discrimination, alleging disparate treatment on account of sex.

The court agreed her case could go to trial. The judge explained that any rule that has a disparate impact on females could be the basis for a Title VII discrimination case. In this case, the judge said, “given the obvious anatomical and biological differences between men and women and the unique hygienic needs of women, including those during menstrual cycles,” a policy that demanded everyone urinate off the back of a crane could have a disparate impact on women. (Johnson v. AK Steel, No. 1:07-CV-291, SD OH, 2008)

Final note:
In it’s ruling, the court mentioned an earlier case involving dirty portable toilets. That court had concluded that dirty potties were more dangerous for females, and failing to provide sanitary bathrooms was tantamount to placing females at higher risk for infections. That created a condition of employment that was possible sex discrimination.

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