Audrey Jo DeCLUE, Plaintiff-Appellant, v. CENTRAL ILLINOIS LIGHT COMPANY, Defendant-Appellee, 223 F.3d 434

POSNER, Circuit Judge. This suit under Title VII by a female lineman for an electric company requires us to decide whether an employer’s failure to alter working conditions that just happen, without any discriminatory intent, to bear more heavily on its female than on its male employees can be an actionable form of sexual harassment. The plaintiff, who became an apprentice lineman in 1994, complains about various acts of sexual harassment that occurred beginning then.

But she did not file a complaint with the EEOC until 1997, and the judge ruled that she could not reach back to incidents that had occurred more than 300 days before that filing, the applicable period of limitations. Finding insufficient evidence of harassment during the 300-day window, he granted

summary judgment in favor of the defendant. The plaintiff invokes the “continuing violation” doctrine, but that doctrine comes into play in a sexual-harassment case only when the plaintiff was reasonable not to perceive her working conditions as intolerable until the acts of harassment had, through repetition or cumulation, reached the requisite level of severity. E.g., Garrison v. Burke, 165 F.3d 565, 569-70 (7th Cir.1999); Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1167 (7th Cir.1996); Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 (10th Cir.1999).

The incidents that occurred in this case before the 300-day limitations period included a coworker’s deliberately urinating on the floor near where the plaintiff was working, repeated shoving, pushing, and hitting her, sexually offensive touching, exposing her to pornographic magazines, and — the point she particularly emphasizes — failing to make adequate provision for restroom facilities for her. Nothing that happened later, that is, within the period of limitations, added materially to the conditions of which she complains; it was just more of the same.

The earlier incidents thus put her on notice, and so she can no longer base a claim upon them. Miller v. American Family Mutual Ins. Co., 203 F.3d 997, 1004 (7th Cir.2000); Minor v. Ivy Tech State College, 174 F.3d 855, 857 (7th Cir.1999); Provencher v. CVS Pharmacy, 145 F.3d 5, 14-15 (1st Cir.1998).

The only significant act — omission would be more precise — of alleged sexual harassment that occurred during the limitations period was the electric company’s continued failure to provide restroom facilities for the plaintiff, who was the only woman in the crew of linemen to which she was assigned — in fact the only woman lineman employed by the company. Linemen work where the lines are, and that is often far from any public restroom; nor do the linemen’s trucks have bathroom facilities. Male linemen have never felt any inhibitions about urinating in the open, as it were.

They do not interrupt their work to go in search of a public restroom. Women are more reticent about urinating in public than men. So while the defendant’s male linemen were untroubled by the absence of bathroom facilities at the job site, the plaintiff was very troubled and repeatedly but unsuccessfully sought corrective action, for example the installation Of some sort of toilet facilities in the linemen’s trucks. The question is whether the defendant’s failure to respond to the plaintiffs request for civilized bathroom facilities can be thought a form of sexual harassment, and we think it can not be.

This is not because no reasonable- person could think an absence of bathroom facilities an intolerable working condition; in most workplaces, such an absence would clearly be thought that. And it is not because Title VII creates remedies only against intentional discrimination.

An employee may also complain about an employment practice if while not deliberately discriminatory it bears harder on the members of a protected group, that is, in the jargon of discrimination law, has a “disparate impact” on that group, and the employer “fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e~2(k)(l)(A)(i); see, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Wards Cove Packing Co. v.

Atonio, 490 U.S. 642, 645-46, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989); Vitug v. Multistate Tax Comm’n, 88 F.3d 506, 513 (7th Cir.1996). Therefore, insofar as absence of restroom facilities deters women (normal women, not merely women who are abnormally sensitive) but not men from seeking or holding a particular type of job, and insofar as those facilities can be made available to the employees without undue burden to the employer, Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 998, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988); Davey v. City of Omaha, 107 F.3d 587, 593 (8th Cir.1997), the absence may violate Title VII.

Cf. Lynch v. Freeman, 817 F.2d 380, 387-89 (6th Cir.1987). We need hardly add that women are not “unreasonable” to be more sensitive about urinating in public than men; it is as neutral a fact about American women, even though it is a social or psychological rather than physical fact, as the fact that women’s upper-body strength is on average less than that of men, which has been held in disparate-impact litigation to require changes in job requirements in certain traditionally male job categories. Berkman v. City of New York, 705 F.2d 584 (2d Cir.1983); Blake v.

City of Los Angeles, 595 F.2d 1367, 1375 (9th Cir.1979); cf. Evans v. City of Evanston, 881 F.2d 382 (7th Cir.1989). But this case has not been litigated as a disparate-impact case. Neither the term nor any synonym appears anywhere in the record. The briefs are silent about it too. The plaintiff has insisted on litigating her case as a hostile-work-environment case throughout. But it is not.

Sexual harassment is the form of sex discrimination in the terms or conditions of employment that consists of efforts either by coworkers or supervisors to make the workplace intolerable or at least severely and discriminatorily uncongenial to women (“hostile work environment” harassment), and also efforts (normally by supervisors) to extract sexual favors by threats or promises (“quid pro quo” harassment). Burlington Industries, Inc. v.

Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). (Occasionally men can complain of sexual harassment too, but we can disregard such cases.) It is a form of, rather than a synonym for, sex discrimination. It is remote, for example, from a simple refusal to hire women, from holding them to higher standards than their male coworkers, or from refusing to make accommodations for differences in upper-body strength or other characteristics that differ systematically between the sexes.

The last is the classic disparate-impact claim, and it is the claim suggested by the facts of this case but not presented by the plaintiff. The requirements for proving, and the defenses to, charges of sexual harassment have been configured in light of the distinct nature of that form of sex discrimination.

The principal defense that the law recognizes to a hostile-work-environment sexual-harassment charge, the charge made here, is that the defendant had done all he could to prevent the harassment, id. at 765, 118 S.Ct. 2257; the principal defense to a disparate-impact claim is, as the statutory provision and cases that we cited earlier make clear, that the burden on the defendant of eliminating the disparity would be too heavy.

By failing to present her case as one of disparate impact, the plaintiff prevented the defendant from trying to show that it would be infeasible or unduly burdensome to equip its linemen’s trucks with toilet facilities sufficiently private to meet the plaintiffs needs. She has waived what may have been a perfectly good claim of sex discrimination, though that we need not decide.

Of course, as a purely semantic matter, it might be possible to argue that an employer who fails to correct a work condition that he knows or should know has a disparate impact on some class of his employees is perpetuating a working environment that is hostile to that class. But if this argument were accepted, it would make disparate impact synonymous with hostile work environment, erasing the important distinctions mentioned in the preceding paragraph. The district judge was therefore right to grant

summary judgment in favor of the defendant. Affirmed.