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?

Issue: Whether it was gender discrimination for an employer to maintain restroom facilities in a condition which made it so that females were unable to use the facilities without suffering adverse health consequences.

Facts: The female employee was fired for using off-limit clean toilet facilities that were cleaner than those provided by the employer. The employer at a construction site maintained portable restroom facilities for its employees. However, the toilets were often unsanitary, with feces and urine on the toilet seat, holes punched in the side of the restroom, and toilet paper which was often soaked with urine. While the facilities apparently presented no problem for male employees, the female employee contracted a urinary tract infection which was likely to arise from using the facilities. As a result, she held her urine and also experienced medical problems as a result of doing so. The employee reported this repeatedly to management and got little relief.

Decision: The fact that the restroom facilities permitted males but not females to use them was disparate impact gender discrimination. While unsanitary restroom facilities had no adverse effect on males, who did not need to sit or use toilet paper in order to use the facilities, since women are made differently, this presented a problem for them which caused a different impact. Anatomical differences between men and women are immutable characteristics and the unsanitary facilities placed a heavier burden on females than on males.