223 F.3d 434 (7th Cir. 2000)
Audrey Jo DeClue, Plaintiff-Appellant,v.Central Illinois Light Company, Defendant-Appellee.
No. 00-1117
In the  United States Court of Appeals  For the Seventh Circuit
Argued June 9, 2000Decided August 2, 2000

Appeal from the United States District Court  for the Central District of Illinois.  No. 98-C-1276--Michael M. Mihm, Judge.
Before Bauer, Posner, and Rovner, Circuit Judges.
Posner, Circuit Judge.


1
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.


2
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.


3
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).


4
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.


5
The question is whether the defendant's failure  to respond to the plaintiff's 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 that while not  deliberately discriminatory 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.  sec. 2000e-2(k)(1)(A)(i); see, e.g., Griggs v.  Duke Power Co., 401 U.S. 424, 431 (1971); Wards  Cove Packing Co. v. Atonio, 490 U.S. 642, 645-46  (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 Co., 487 U.S.  977, 998 (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).


6
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 to  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 (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.


7
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; 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 plaintiff's  needs. She has waived what may have been a  perfectly good claim of sex discrimination,  though that we need not decide.


8
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.


9
The district judge was therefore right to grant  summary judgment in favor of the defendant.


10
Affirmed.


11
ROVNER, Circuit Judge, dissenting in part.


12
When  my nomination to the Court of Appeals was  announced in 1992, the late Judge Walter J.  Cummings wrote me a kind note of congratulations  that ended with the observation, "At long last,  the ladies' room off the [judges'] conference  room will have some use!"


13
Thank goodness there was a women's room! When  women like Audrey Jo DeClue arrive in workplaces  that hitherto were all-male, they often discover  that the facilities for women are inadequate,  distant, or missing altogether. See Gail Collins,  Potty Politics: The Gender Gap (Installation of  Bathrooms for Women), Working Woman, March 1, 1993,  at 93. Women know that this disparity, which  strikes many men to be of secondary, if not  trivial, importance, can affect their ability to  do their job in concrete and material ways. As  recently as the 1990s, for example, women elected  to the nation's Congress--which had banned gender  discrimination in the workplace some 30 years  earlier--found that without careful planning,  they risked missing the vote on a bill by heeding  the call of nature, because there was no restroom  for women convenient to the Senate or the House  chamber. See Catherine Strong, When a congressman  needs a commode, he strides . . ., Associated Press,  June 22, 1997; Lois Romano, On the Hill, The  Gender Trap; Breaking Into the Congressional  Cloakroom, Washington Post, March 6, 1990, at C1.


14
As my colleagues acknowledge, when an employer  provides no restrooms at all to its employees and  expects them to relieve themselves outdoors, the  burden falls more heavily on women than it does  on men. Ante at 436-37. Not simply because women may  be more reticent about relieving themselves in  the open, I might add. See ante at 436. The fact  is, biology has given men less to do in the  restroom and made it much easier for them to do  it. If men are less reluctant to urinate  outdoors, it is in significant part because they  need only unzip and take aim. And although public  urination is potentially a crime whether  committed by a man or a woman, see, e.g., People  v. Duncan, 631 N.E.2d 803, 804 (Ill. App. 1994)  (disorderly conduct); Elliott v. State, 435  N.E.2d 302, 303-04 (Ind. App. 1982) (public  indecency), the risk of being caught in the act  is arguably greater for women, for whom it is a  more cumbersome, awkward, and time-consuming  proposition.1 For all of these reasons, I agree  with my brothers that an employer's failure to  provide restroom facilities for its workforce can  support a disparate-impact claim for female  employees. Ante at 436-37.


15
But there are respects in which the refusal to  provide female employees with restrooms can be  understood as creating a hostile work environment  as well. See Kline v. City of Kansas City, Mo.  Fire Dep't, 175 F.3d 660, 668 (8th Cir. 1999) (as  to hostile environment claim, error to exclude  evidence of ill-fitting clothing and unequal  bathroom facilities provided to female fire  department employees), cert. denied, 120 S. Ct.  1160 (2000). Restroom facilities are, after all,  the norm in the workplace, and the refusal to  provide such facilities to workers is, most would  agree, an act which alters the terms and  conditions of one's employment. See generally  Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,  67, 106 S. Ct. 2399, 2405 (1986) (describing  elements of hostile environment claim). There may  be some work environments in which it is not  feasible to make any type of relief facilities  available to employees, but DeClue's was not one  of them. For at least one two-week period, she  was given the use of a "port-a-potty", and  eventually, after she filed a charge with the  EEOC, the company began providing "Brief Reliefs"  (disposable urine bags) and privacy tents for  DeClue and the other lineworkers to use at  jobsites. Granted, the refusal to provide  restrooms and comparable facilities is somewhat  different from the affirmative acts of sexual and  sex-based harassment that we typically see in  hostile environment cases. Cf. 29 C.F.R. sec.  1604.11(a) (2000); Baskerville v. Culligan Int'l  Co., 50 F.3d 428, 430-31 (7th Cir. 1995).  Nonetheless, when, in the face of complaints, an  employer fails to correct a work condition that  it knows or should know has a disparate impact on  its female employees--that reasonable women would  find intolerable--it is arguably fostering a work  environment that is hostile to women, just as  surely as it does when it fails to put a stop to  the more familiar types of sexual harassment. Cf.  Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465  (7th Cir. 1990). Indeed, the cases teach us that  some employers not only maintain, but  deliberately play up, the lack of restroom facilities and similarly inhospitable work  conditions as a way to keep women out of the  workplace. See, e.g., Catlett v. Missouri Highway  and Transp. Com'n, 828 F.2d 1260, 1265-66 (8th  Cir. 1987), cert. denied, 485 U.S. 1021, 108 S.  Ct. 1574 (1988); Kilgo v. Bowman Transp., Inc.,  789 F.2d 859, 874-75 (11th Cir. 1986); see also  E.E.O.C. v. Monarch Machine Tool Co., 737 F.2d  1444, 1447 (6th Cir. 1980); see generally Vicki  Schultz, Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in  the Workplace in Title VII Cases Raising the Lack  of Interest Argument, 103 Harv. L. Rev. 1749, 1832-  39 (1990).


16
The evidence in this case supports a hostile  environment claim. First, although DeClue  complained about the lack of relief facilities  repeatedly, the electric company did not make  them available on a consistent basis until late  1997 or early 1998, after she filed her EEOC  charge. Second, the alternatives that the company  offered in response to DeClue's complaints--the  use of a truck to drive to the nearest public  facility, or summoning a supervisor or  troubleshooter to take her to such a facility  when a truck was unavailable--were both  impractical (the nearest restroom might be ten or  twenty miles away from the jobsite, as might be  the nearest supervisor or troubleshooter, see  DeClue Dep. vol. 1 at 120-22) and served only to  stigmatize her. Her co-workers, in fact, made  harassing remarks about this very subject,2 and  in one of DeClue's performance evaluations, her  crew leader wrote that "a wom[a]n on the job of  this type makes it hard with restroom  facilities." DeClue Dep. Ex. 11 at 2.3 Third,  on jobsites that were literally out in the open,  with no trees or shrubs to hide behind, male and  female workers were forced to relieve themselves  with almost no privacy whatsoever: DeClue's male  co-workers regularly urinated in her presence (a  practice that she complained about to no avail);  and on at least one occasion, she discovered to  her chagrin that the bulldozer behind which she  had chosen to relieve herself had given her  privacy from her co-workers and passing traffic,  but not from a crotchety resident who lived  nearby. DeClue Dep. vol. 1, at 126-28. Fourth,  the lack of appropriate accommodations deprived  DeClue of privacy among male co-workers who made  a habit of keeping (and presumably viewing)  pornographic magazines in company offices and in  many company trucks--a practice that could only  have increased the discomfort DeClue (and any  reasonable woman) would have experienced  relieving herself in the open. I dare say that if  the tables were turned, and all but one of the  employees in this environment were women, a  reasonable man would be equally reticent to drop  his trousers in order to relieve himself.  DeClue's complaints are proof enough that she  found the lack of relief facilities  objectionable, and these circumstances certainly  permit the inference that any reasonable woman  would have felt the same. The defendant's failure  to remedy the problem in turn could be viewed as  a negligent response that subjects it to  liability for a hostile work environment. Cf.  Guess, 913 F.2d at 465.


17
Discrimination in the real world many times does  not fit neatly into the legal models we have  constructed. Venters v. City of Delphi, 123 F.3d  956, 975 (7th Cir. 1997); Tomsic v. State Farm  Mut. Auto. Ins. Co., 85 F.3d 1472, 1476 (10th  Cir. 1996). The hostile environment theory itself  was not one that Congress anticipated or provided  for in the express terms of Title VII, but  instead is one that scholars, the E.E.O.C., and  judges have fashioned in acknowledgment of a very  real and invidious form of sex discrimination in  the workplace. See Meritor, 477 U.S. 57, 106 S.  Ct. 2399.4 Because prejudice and ignorance have  a way of defying formulaic constructs, the lines  with which we attempt to divide the various  categories of discrimination cannot be rigid.  DeClue's complaint, insofar as it concerns the  lack of restroom facilities, may fit more  naturally into the disparate-impact framework  that my colleagues discuss, but it also overlaps  with the hostile environment framework into which  she has placed it. It should be allowed to  proceed within that framework.


18
Therefore, although I join my colleagues in  concluding that DeClue cannot complain of  discriminatory incidents that occurred outside of  the limitations period (ante at 435-36), I  respectfully dissent from their holding that the  failure to provide appropriate relief facilities-  -which failure did occur within the limitations  period--cannot be pursued as a hostile  environment claim.



Notes:


1
 DeClue herself was the subject of at least one  complaint from a customer who saw her urinate  outdoors. DeClue Dep. vol. 1 at 125-29.


2
 Her crew leader, for example, allegedly made the  following types of remarks: "You're just like my  damn kids. I'm ready to leave and I have to wait  for them to go to the bathroom"; "You've got the  bladder of a three-year-old"; and "We'll never  get to the job 'cause I'm sure we'll have to stop  in Edwards for you to piss there too." Complaint  at 7 para. 39.


3
 Her employer removed the comment from the  evaluation at DeClue's request. See DeClue Dep.  Ex. 11A, at 2.


4
 For another example of how our thinking about  discrimination has evolved, consider the  Pregnancy Discrimination Act of 1978, 42 U.S.C.  sec. 2000e-(k), which made clear that Title VII's  ban on sex discrimination included discrimination  based on pregnancy and so overruled General Elec.  Co. v. Gilbert, 429 U.S. 125, 97 S. Ct. 401  (1976). Gilbert held that a workplace insurance  plan covering non-occupational disabilities other  than pregnancy did not discriminate against women  per se, but simply favored "nonpregnant persons"  over pregnant women. See id. at 135, 97 S. Ct. at  407, quoting Geduldig v. Aiello, 417 U.S. 484,  496-97 n.20, 94 S. Ct. 2485, 2492 n.20 (1974).


