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Posner Answers the Feminists: A Debate on Sex Discrimination

This debate between Richard Posner (Senior Lecturer in Law and Judge on the U.S. Court of Appeals for the Seventh Circuit) and Martha Nussbaum (Ernst Freund Distinguished Service Professor of Law and Ethics) and Mary Anne Case (Arnold I. Shure Professor of Law) was moderated by Geoffrey Stone (Edward H. Levi Distinguished Service Professor). It was recorded January 26, 2009 and was co-sponsored by Outlaw, the American Constitution Society, the Federalist Society, and Law Women's Caucus

Transcript

Speaker 1:          00:00:02       This audio file is a production of the University of Chicago law school. Visit us on the web@www.wow. Dot U Chicago Dot Edu.

Speaker 2:          00:00:20       Welcome to this event, the origins of this discussion stem from a special issue of the University of Chicago law review last year that was a celebration of Judge Richard Posner's twenty five years on the federal bench. Gloria, you invited a faculty member each to write an essay, uh, dealing with one aspect or another of Judge Posner's jurisprudence, and two of those pieces, one by Professor Mary Anne Case and the other by Professor Martha Nussbaum dealt with Judge Posner's opinions in the realm of Sexual Harassment and we thought it would be interesting to have this conversation to talk a bit about their critiques of Judge Posner's work and to give the judge an opportunity to defend himself. I will dispense with introductions. Um, if any of you, doesn't know who Richard Posner, Martha Nussbaum or Mary Anne Case is, you're in the wrong room, but that should, I think suffice for the discussion. Basically, we'll, we'll use the jumping off point of two cases. The first was in 2000, uh, where the Seventh Circuit in the DeCLUE v. CENTRAL ILLINOIS LIGHT upheld the dismissal of Audrey DeClue, complaint of hostile environment, sexual harassment against her employer in an opinion by Judge Posner. The court held that the failure to make a provision for an adequate restroom facilities for Ms. DeClue, The only woman lineman employed by the company, did not make out a claim for a hostile environment sexual harassment. Such a claim. Judge Posner explained requires proof that coworkers or supervisors intended to make the workplace inhospitable to women. Uh, a allegation that he concluded was not sufficiently present in that situation. Professor Case in her essay, criticizes this conclusion, noting that the clue was knowingly put at risk of her male colleagues urinating in or presence or observing her urinating. Professor Case observed the judge. Posner treated this situation not as deliberately demeaning, but rather something that just happens that reveals she insists the Judge Posner does not feel the equal rights of women as much of a value. In the second case, Carr versus Allison Gas Turbine decided in 1994, um, Carr complained that the acts of her male coworkers who attempted to urinate on her and defaced her overalls constituted actionable sexual harassment. In a groundbreaking decision, the seventh circuit opinion by Judge Posner held that such conduct can indeed constitute actionable sexual harassment even though no one was attempting to have sexual relations with Carr. The effort to intimidate her and to drive her out of the workplace because of her gender, Posner concluded, was itself actionable. Professor Nussbaum applauds, Judge Posner for clearly and emphatically recognizing that sexual harassment can be about power as well as about sex, but professor Nussbaum criticizes the way in which Posner reached this conclusion. Although Posner's insights were major and bold, Professor Nussbaum. Stakes did they have not left their mark on doctrine because Judge Posner, skeptical of theory, wrote the opinion in a way that was unduly focused on pragmatism.

Case:               00:03:57       The format that we'll use for this afternoon's discussion is first Professor Case will speak for about 15 minutes describing the decision in her analysis of it, then Judge Posner will have 10 minutes to respond. Then Professor Nussbaum will have about 15 minutes to talk about the second case and again, Judge Posner will have roughly 10 minutes to respond. Then we'll have a bit of a discussion and then open the floor to questions. So Professor Case, thanks so much. Let me also apologize for the delay, if Jeff is going to describe this as Judge Posner defending himself. I'm a little like someone who comes to a duel without her weapons. I left my copy of the article upstairs while I was getting coffee. And with all due respect to Jeff as well. I'm going to start by restating the case, because while I do conclude from what Judge Posner says in it that he doesn't see the equal rights of women as much of a value, it's not on the strength of what Jeff quoted, I draw a different conclusion from that language. So the DeClue case? Um, before I actually say that. I want to say how glad I am for this opportunity to be here and have this conversation because when I wrote this piece, I was asked by one of my readers who I thought my audience was and what message I intended them to take home from it. And I am now finally in the presence of my audience. And I don't mean all of you. I mean, because what I found myself acknowledging what is that I was actually writing for the two Posners, um, for my colleague Dick Posner, whom I love, who is so eager and able to bat around ideas with all of his colleagues. And about from whom I really want to hear what he has to say. Um, but also, uh, the honorable Judge Richard Posner, who terrifies me, because he has power. And the message for that second Posner was that message, uh, that Learned Hand once argued, should be hung on the walls of every courtroom and Learned Hand hand took the message from Oliver Cromwell and the messages in the bowels of Christ. "I beseech you, think it possible that we may be mistaken" and partly this comes to me with respect to posner because he's always very casual about assuming facts on the basis of which he makes arguments and conclusions. Facts that very often when I know anything about the area I don't find support for, um, now the bowels in this language of Cromwell's I think is particularly appropriate here because I'm going to be talking about bowels in both senses of the word. Bowels are the seat of empathy, but bowels is also as the seat of excretion. Some of you may know that a toilets, uh, as a public toilets. The sex segregated spaces is one of my great research interests. Don't worry, this is not a talk focused on the potty, but this is a talk about the toilet jurisprudence of Richard Posner. There are actually several cases in addition to the one that I'm focusing on. Um, in addition to the DeClue case, I'll also have occasion to make reference to Judge Posner's dissenting opinion in a case called Johnson against Phelan, uh, where I would have joined the majority opinion written by Judge Easterbrook, as, by the way, I would have joined the dissenting opinion in the DeClue case written by Alana Rovner, over Judge Easterbrook's majority, Judge Posner objected that it was indeed cruel and unusual punishment, uh, for a prison to put a male prisoner in a situation where there was a chance that female guards might see him naked, uh, using the toilet or a shower. Um, and I call the piece All The World's The Men's Room, um, for the reason not only that men feel this freedom to excrete wherever, which we see and the facts of the case, uh, but also because I think it's a description of what I see as an undercurrent in Posner's world, uh, which is one in which men seem to get all of the space and deference that they want. And if the rules are not already in their favor, a they'll rapidly be adjusted to be made. So, so now, let me go to the facts. Um, everybody on the panel was in agreement that most of what DeClue complained of was time barred. This included a workers, uh, coworkers deliberately urinating on the floor near where she was working, shoving, pushing, hitting her, sexually offensive, touching, exposing to phonographic magazines, and the failure to make adequate provision for restrooms. The only significant act of omission according to Judge Posner of alleged sexual harassment, that occurred during the limitations period, the company's continued failure to provide restroom facilities to her, the only woman in the crew of linemen, Rovner would have allowed her to proceed with. But Posner for the majority held that, quote, "the defendant's failure to respond to the plaintiff's request for civilized bathroom facilities cannot be thought a form of sexual harassment." Uh, he was particularly disturbed that the plaintiff, by the way, I had occasion to meet and talk to in the course of writing this piece, insisted on litigating her case as a hostile work environment case and had not so much mentioned the term disparate impact, which is what Posner thought the right theory was. According to Posner, hostile work environment harassment is quote "the form of sex discrimination in the terms and conditions of employment consist of efforts by either coworkers or supervisors to make the workplace intolerable, or at least severely and discriminatory or uncongenial is a form of, rather than a synonym for, sex discrimination. It is a 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. The last is the classic disparate impact claim according to Judge Posner, and that's what he thought the plaintiff should have pursued. Now, I spent a fair amount of the piece talking about, uh, my agreement with Judge Rovner, uh, that actually, uh, the forms of sex discrimination really are much more interlinked than Judge Posner thinks. And neither the statute nor any, a good view of them carved them up into these discrete claims. Uh, and I worked this through by taking the example of pornography in the workplace that can be either deliberately shoved in women's faces or simply exist there before they show up and then not changed or even somewhat minimized when they do. It's not what I want to focus on here. However, um, again, I'm, I'm obsessed with, with public toilets as a, uh, a subject so, um, and, and also with, uh, with sex and gender discrimination. So when I read the DeClue opinion as it came down, I had just joined the Chicago faculty and I kinda thought he would be receptive to batting around ideas back and forth. So what I wrote him was the following quote, wondering if I can prevail on you in all seriousness to react to a hypothetical to help me understand the scope of your position in this case, the quote, failure to alter working conditions that just happen without any discriminatory intent to bear more heavily unquote on employees at one sex Cannot quote, be thought a form of sex harassment unquote. That's the central holding of the case. Would you have the same reasoning and the same result, If the first and only male nurse in a hospital, we're required to wear exactly the same uniform as his female colleagues had been issued from time immemorial. A white shirt dress, a bonnet, pantyhose and pumps. If not, why not? Now I should say for those of you who don't know that I'm quite a while before I wrote email, I'd written a 100 page article about, um, sex stereotyping and gender discrimination as distinct from sex discrimination. That is to say discrimination in favor of against things coded masculine or feminine, sometimes inflicted by and sometimes in different to other people exhibiting were male or female focused on, uh, the Hopkins case where Anne Hopkins was told that she'd become a partner if she would only act more femininely. I send this email query after 10:00 at night and in about a half an hour, about 10:30, I got the following response from Judge Posner by email quote. That's not a good example because the employer would have no reason to require the male nurse to dress that way. Since male nurses don't want to dress up as women, the employer would have to pay a higher wage to its male nurses. I hope. And hence to the female ones as well because of the Equal Pay Act to compensate them for the indignity with no offsetting benefit to the employer. In contrast, the employer saves money by not making an accommodation to women's desire for greater privacy. Think of a better example, exclamation point. At the time, I was speechless, not because I didn't have an answer, but I felt like the level of plotting that I would have to do to someone who, who never plots, who writes these sprightly opinions to explain exactly what it is I had in mind was really not something I had the strength to undertake. So I was grateful for the symposium, uh, to, to allow me to, to explain this. And these are not new thoughts, these the thoughts I had five seconds after I saw the email. So the plotting of x of aspects of this nursing hypothetical, I would have been obvious to Dick Posner when I wrote to him. I intended the hypothetical to be in some respects a mirror image of the facts of DecCue - a hypothetical in which a job, historically all female as DeClues had been all male, had working conditions constructed around a feminine standard as work on the power lines had been structured around a masculine standard and no alteration in working conditions had been made to accommodate first worker of a different sex. I intended to leave open the possibility that the first worker of a different sex had been hired, not out of genuine, genuine willingness to integrate the workplace, but in reluctant compliance with the law, an employer or supervisor obliged to hire either man or women, depending on which case we're talking about, but less than eager to work with them, might get least indifferent, at most, Delighted if a mere quote, failure to alter working conditions on quote would discourage them from applying for remaining on the job. Evidence of delight in the unchanged working conditions having such a discouraging effect might be evidence of discriminatory intent, but evidence of indifference might not be. Now, I'm curious to hear from from Dick on this, but it seems to me that what caused him to miss the intended point of my hypothetical is a failure of imagination. And this was someone who has a, a very vivid imagination in many cases, uh, but apparently you can't imagine an employer who is not willingly indeed eager to hire men. So eager that they will of course alter working conditions and even payscales as necessary to attract them. That an employer's reason to make the male nurses dress that way might be precisely to make the workplace intolerable or at least severely and discriminatorily uncongenial to men seems not to have occurred to him. And I'll have more to say, uh, if time permits, uh, about, uh, Posner's assumptions concerning a male privilege. I think putting this, uh, in the DeClue case I'm declared, worksite is so configured that DeClue is put her at risk of her male colleagues urinating in her presence or observing her urinating. But Posner treats this as not deliberately demeaning or hostile to her, but as something that just happens, not withstanding that, as Judge Rovner noted in her dissenting opinion, Public urination is illegal equally for men and women, and not just Declue, but neighbors and people, uh, on the street would file complaints about, uh, the workers, including DeClue, uh, urinating in public. Uh, now when it comes to this prisoner, whose case I'm also going to bring into the conversation, um, Posner, um, when the prison is similarly configured to put a male prisoner like Albert Johnson at risk of observation by female guards, Posner describes this as quote, degrading or brutalizing treatment unquote, cruel and unusual punishment, not withstanding that as Judge Easterbrook noted in the majority opinion, but Johnson did not allege either particular susceptibility or any design to inflict psychological injury. Now, Posner answers to this with a lengthy discourse on in the opinion on Johnson's alleged right to practice Christian modesty, but he starts with what I think is a clearly erroneous premise that in the modern United States, quote, The nudity taboo is strongest among professing Christians because of the historical antipathy of the church to nudity unquote. And I say that I think we can take judicial notice that the nudity taboo in the modern United States is much stronger among professing Muslims and observant Jews than among Christians. And I go through a fairly long discussion of the fathers of the church. The New Testament, the commentaries to show that, you know, the church, uh, defined as (Latin), um, and its descendants, in One holy Catholic and Apostolic Church, um, public nakedness of both the Christ and the martyrs was no shame. Um, and uh, you know, a lot of the fathers of the church would have been more opposed to Johnson bathing than he is being seen naked so long as he wasn't himself displaying himself naked for a, for erotic purposes. Um, and I also say that compared to Johnson, Audrey DeClue is in some respects worse off because even if she practiced modesty in our own secreting behavior, and neither excreting nor bathing technically require nudity. If Johnson wants to keep covered up while doing these things, he can, uh, she's still at risk of exposure to excreting male colleagues, something about which she's complaining. Um, Posner her, goes on to say, it's not that the exposure in the naked male bodied in women's eyes constituted cruel and unusual punishment in all circumstances. A male prisoner has no constitutional right to be treated by a male doctor. Well, one of the things I wonder is why not? And Posner's answer is men have long been attended in hospitals by female nurses and laterally by female doctors as well. And I want you to notice here that in both cases, what Posner seems to be doing, um, us taking the state of the world at the time of the litigation as the only proper measure of how it should be for all time. So if Johnson had brought his claim a few years earlier, but female doctors were as uncommon as a female prison guards were in the 19th century before nursing became an acceptable profession for women Posner might strenuously have insisted that quote parading of naked male inmates in front of female physicians amounts to treating the prisoners as quote, uh, from the opinion, a type of Roman devoid of human dignity and entitled to no respect subject to experiments, including social experiments such as the experiment of seeing whether the sexes can be made interchangeable, a unquote. Now I then do a little discourse about the VMI case. The Virginia Military Institute, because it brings together Plato, toilets, nudity, and the experiment of seeing whether the sexes can be made interchangeable, and Plato is important because those of you who've read Posner's Sex and Reason knows that he begins it by saying that it came as a great surprise to him. Well, a already a federal judge to read Plato's symposium and discover that somebody of Plato's eminence so long ago, uh, had defended homosexuality. Um, and so what I argue is that Justice Plato's symposium helped convince Posner that homosexual love is defensible. So he might learn for Plato's republic that to permit cross surveillance is not necessarily to condone barbarism. And then even if the duty of a society that would like to think of it as self as civilized. And I'm quoting Posner again, is to treat as prisoners humanely. It need not follow the quote, the interest of a prisoner and being free from unnecessary cross-sex surveillance has priority over the unisex bathroom movement unquote. Now Judge Easterbrook, his majority opinion points out that a prison can comply with the rule Johnson proposes and still maintain surveillance only by relegating women to the administrative, limiting their duties or eliminating them from the staff. And what I wonder does Posner really think a prison environment devoid of women with an all male prison population coming in contact only with an all male group of guards is more civilized and less kennell like, than the alternative of which Johnson a complaint is it less degrading and brutalizing to male prisoners to be entirely isolated from women than to be at some risk of exposure to them while naked. And I think that the notion that any contact with women is degrading to men, uh, is troubling, but it's like Posner's view that since male nurses don't want to dress up as women, the employer would have to compensate them for the indignity. And one of the things I wonder is why does Posner view the male nurses in the hypothetical is being required to dress up as women rather than required to dress up as nurses. Given that by hypothesis, the men are simply being asked to wear the uniform all prior, uh, holders of the job had worn. Was the first woman who put on judge's robes, dressing up like a man or like a judge? There's no physiological reason that Men can't wear all the components of the nurse's uniform as comfortably as women can. And many women might also find the uniform uncomfortable just as there are men who do want to dress up as women. There are also women, uh, who don't, and the assumption that it's necessarily an indignity for men to wear clothing associated with women and indignity for which they must be compensated at rates higher than the previously prevailing rate given female nurses, uh, is the thing that really most disturbs me in all of this and give us.. I'm Out of time, so I'm not going to go on and explained why Posner's later analysis of the interests of the female prison guards and equal employment opportunity. Something that Judge Easterbrook weights very heavily in his opinion. Posner doesn't even seem to realize our constitutional dimensions. He equates it with cost savings on the part of the prison. And uh, one of the things I say, I wonder, I mean, I'm, my initial reaction is Posner's devaluing the equality of the sexes. Uh, he doesn't realize it's of constitutional dimensions, but then I started thinking maybe it's the other way around. Actually. Maybe Posner thinks costs savings are a really high value of constitutional dimensions before Jeff gives me the Heave Ho. I will stop.

Host:               00:23:02       Thank you. I did not see that coming.

Posner:             00:23:18       Everybody know the country at the moment has an extraordinary array of exceptionally difficult issues facing it. We're in the first depression since the thirties. We have extremely difficult foreign policy problems, security problems. We have global warming and other environmental problems. We have a racial problem. We do not have a problem with line men pee. Women, women who go to work is what's involved here? So these linemen, telephone linemen, electrical Lineman, they spend all day. I'm on the road in the woods and so on, checking overhead wires and so forth. And they don't have, there's no bathroom in their truck. So. So you know, I have to use the bathroom. They, they'd go in the woods. No big deal. I can't imagine women being bothered by that. We have all the, have many women now in the armed forces in the police department, the Fire Department for a little privacy in those settings. It's extraordinarily old fashioned to worry that women are going to be offended because they're working in a situation in which men are urinating. that's ridiculous. The, the situation in the Johnson case that Professor Case mentioned shows what seems to me to be her failure to, to, to prioritize the country's problems. The problem there is racial, uh, half the prisoners in American prisons in jails are black. Uh, the vast majority of the female prison guards are white. Um, so having the white female guards watching the prisoner as they use the bathroom. And so on. Black prison, I don't think that's, I don't think that's good for the, uh, rehabilitation of the, of the prisons. Now you can say, well, what about women's job opportunities? You know, it's very unfair because, because, um, women is the result of the terrible inequalities we have in this country. They only committed about five percent of the number of crimes as men, so that if women could only guard female prisoners, their opportunities for careers in corrections would be diminished. You might take the fact that women commit only five percent of the crimes, tiny part of the population. It might lead you to reflect on whether feminism is really a live issue in the United States. I don't think it is. It's a very live issue in places like India and China and Subsaharan Africa and the whole Muslim world. But in the United States, um, I, I think Professor Case is kind of stuck in sort of, you know, 40 years ago and thinking about these problems. If you look at women today, they're outperforming men at all educational levels. They, they're forging ahead in, in all the, the lead, in all the professions and occupations and so on. They look at them, substantial participation, all branches of the military, you know, flying bombers, just just like the boys, you know, dropping bombs on people if that isn't equality. I don't know what it is. (laughter) Tremendous job opportunities they have. They have kids in your middle, forties... The Situation of women in the United States is very bright. Of course there's, of course there's a discrimination. No group is, is, is free of problems. But is this one of the problems that people have? Professor Case's ability and train and your ability and training. Is this something you want to focus your career on? Couldn't one say there's something dilettantish about focusing your career on toilets. I mean, that's something where they work well in the United States. We don't have a problem with our plumbing. So, so, so I, I say I'm disturbed by the way I understand you, you, you can't ask law professors any kinds of academic just to work on problems that have large social significance. Even though of course lawyers play a very key role in all a large policy issues and all the problems facing the United States. Um, but you know, it, the university people have to pursue issues that may not be important today, but that maybe a lot of intrinsic intellectual interest, this I don't think has a lot of intellectual interest. So I don't understand the motivation for, for, for this, uh, kind of thing. Um, there are, of course, cases of serious sexual harassment in the workplace. Um, they tend to be in kind of a, you know, very much so. The worst that I have seen in my case are in fire departments were the men really make a strong effort to make life miserable for women. Um, and we've had cases like that we've, we've upheld judgments for, for women or reverse dismissals and so on. Um, we've had just a lot of troublesome cases, but, but this case with the linemen, I, I'm unrepentant about that. And likewise, it seems to me, as I say, the problem of a race in prisons as part of a general problem of over incarceration in the United States. It's a serious problem. And, um, uh, if a prison decides that, uh, be, be better to segregate the, the guards based sex. And have the women guard women and men, I think we should defer to that kind of of judgment. I had a similar case not involving sex, but uh, Illinois like a number of other cases experimented with boot camps for young, uh, uh, criminal offenders. The idea would be different from a prison, would try to instill discipline, would be kind of quick quasai military like boot camp in the military. And um, it turned out in this, uh, uh, bootcamp prison in Illinois. All of the inmates were black. Most of the guards were black, but there were no black officers and the prison decided or they decided they would give a preference to have a black, a sergeant or promoted him to lieutenant. So, you know, he was, maybe he didn't score quite as well as the white, a white fellows competing against. Now we have held that, we said do it. They made it conveyed a penal logical judgment that was very important to have an officer of the same race as the inmates. We defer to that. So I think we, we want to give these institutions latitude. They know more about their problems. And we do, um, if they adopt policies which are, you know, palpably a discriminatory going to have significant adverse effects on a group, well then will invalidate that, but we will, we will grant a latitude to them. So anyway, that's my response.

Case:               00:32:45       I've been allowed a one Minute, one minute response. And the thing that I want to say in this one minute is, at in case there was any doubt for those of you who haven't read the opinion, Johnson case involving the prisoner was one in which the prison's policy was to hire female guards and Judge Easterbrook accepted that policy and it was Judge Posner who said, I am going to defer to this policy because it would be cruel and unusual punishment to this male prisoner who doesn't want women anywhere near him while he is showering.

Nussbaum:           00:33:20       Well, this is going to be a gentle criticism. No, in really, really it's, it's also more of a self criticism because I talked about Carr in a Nineteen Ninety six book called Poetic Justice and I gave it as a salient example of the way in which being able to imagine all the facts of the case was a crucial part of the judge's equipment in coming to grips with the fact of hostile environment. So I praise the literary qualities and now what I'm saying is that in the absence of solid theorizing, those literary qualities are free floating and can even sometimes lead the judge astray. So, uh, some background first. So the word sexual in sexual harassment is ambiguous in three ways. And these ambiguities of caused a lot of confusion. If we start with racial harassment, which is simpler, it has only two of the ways we can see what the problem is. Now, harassment, racial harassment means first and foremost, harassment on the basis of race, but typically it's content is also racial because the way that people are harassed on the basis of race is to use demeaning racial language or racial stereotypes. But obviously that needn't to be the case. You might have a workplace where let's say three out of 100 workers were a racial minority and they might be harassed by being told they're stupid, but no racial epithet would be used and now it's clear that that would also count as racial harassment because it's race based even though the content is not racial, but for a long time that was not clear. Now Sexual harassment is ambiguous in this way. That is that it's harassment on the basis of sex. Sometimes it has a sexual content, sometimes it doesn't. Demeaning gender stereotypes may be used, but needn't be used. But then there's a third issue that is that sometimes in addition, sexual harassment concerns unwanted overtures for sexual relations, but of course you can see that harassment might be sexual in first and second senses. It might be on the basis of sex and it might use demeaning gender stereotypes without having anything at all to do with sexual. And there was a huge confusion for a long time about this matter. Now the confusion is sometimes blamed on Catharine Mackinnon's 1979 books sexual harassment of working women because she did focus on the sexual relations aspect, but I think it's unfair to charge her with initiating confusion because what she was trying to do was to get people to recognize that bidding unwantedly for sexual relations in the workplace could be and was a form of sex discrimination. People didn't acknowledge that. They said, oh, this is just erotic bantering and it's flirting. And so, so she was taking, this is very common form of sexual harassment and trying to get people to see that it could be harrison and that was a form of sex discrimination and that's why she didn't really focus so much on the other forms of harassment that were gender based and might involve demeaning stereotypes such as dumb ass woman is one that comes up in several cases, uh, without having anything to do with sexual relations. Well, there are some problems that this lead to in the law because then there'd be people who were influenced by Mckinnon's book and it was enormously influential. Book started focusing very strongly in both quid pro quo and hostile environment, sexual harassment on the issue of unwanted pressure for sexual relations, first problem, where you saw that happening, but you also saw other forms of harassment. There tended to be a separation. You could treat the first that had all sexual relations as sexual harassment, but the other stuff that was going on tended to be counted, adjust as sex discrimination, but that required a different and weaker standards so it couldn't be all rolled together as part of the same harassment and then so that. So that led to some women losing their cases and I talk about the article. Second problem was that this led to a neglect of a concept that was actually very key for mckennan and that was the asymmetry of power in the workplace. They can actually said that she thought the best way to analyze all forms of sexual harassment was around the asymmetry of power, but she allowed that even people who didn't like that way of doing things could find a way to find that unwanted bidding for sexual revelations was still sex discrimination is though if you use the difference model rather than what she called the dominance model. You can still squeeze it in to that paradigm, but because she made that concession, people who followed her typically failed to notice the asymmetry of power in the workplace as a salient feature of those cases and third problem. They're just evolved for a long time, no way of conceptualizing cases that were clearly sexual harassment in the first and second sentences. They involve the basis was gender and the content was gendered, but that didn't involve anything to do with sexual relations. When the Supreme Court got into the act of things, did not always get clearer. In Mariger v. Finson The facts fit the sexual relations paradigm like a glove. Although the facts of the sexual relationship were disputed, there was no dispute about the fact that the claim concerned unwanted pressures for sex and their role in the creation of a hostile work environment. So then we get to Harris versus Forklifts Systems. That case went further with the help of Mackinnon, who helped write the brief, the content, uh, the conduct of the employer's harassment was held to amount to abusive work environment, Harrison on the basis of sex, but it was clear that there was a lot going on that wasn't just pressure for sexual relations and that was included as a part of the hostile work environment. However, things were still quite murky because there also were some sexual pressures and they were not clearly separated out. So no one said whether that was a necessary part of the hostile work environment or not. And indeed that the very small part actually Harrison was, was, was very much played up. So Paris encountered a variety of forms of harassment, gender based insults, sexual innuendos, denigrating stereotypes of women. And so she's the one who was called the dumb ass woman. We're all part of it, but then there was this one mock proposition that the two of them go to the Holiday Inn to negotiate Harris's raise. Now that was a joke in the context. It was very demeaning and harassing joke, but whether there was real pressure for sexual relations remained very unclear. However, this sexual relations aspect was so welcome to the justices that they played that up and emphasized greatly in the case, so we put the case squarely into the familiar paradigm and therefore no effort was expended in deciding how the case might have been treated if that one incident had not happened, but all the other things had happened. Well, Carr came shortly after Harris, but I think it's lucky. Here's way an analytical sophistication from the start. Posner is just not interested in the question whether the man ever tried to have sexual relations with Carr. That just doesn't seem to him pertinent and indeed it's pretty clear that the men did not try to have sexual relations with her, even in joke. The harassment, however, was both based on her femaleness - She was the first worker in the tinsmith shop in the General Motors Plant in Indiana, and it was also suffused with gender based stereotypes. Some of these were vulgar and offensive, and in that sense they had a kind of sexual relations content, I mean, so some of the vulgar jokes alluded to sexual relations, but they were certainly not treating her as available for sex. What they were doing, made all too clear in Posner's detailed and damning description. They were trying to intimidate her and drive her out of the workplace. They attempted to urinate on her. They defaced her workers overalls. They wrote a obscene remarks on her work box and so on. All of this was intimidation, both based on sex and with a gender, demeaning content, but not having to do with sexual relationships. Well, Posner doesn't pause to analyze the background of the problem in bringing this kind of Hharassment fit within the framework of title seven. Indeed, to all appearances, he doesn't really see the analytical problem that I've pointed out. He just uses common sense and it's quite obvious that this is a form of sexual harassment. Uh, but actually what he was doing here was something bold and something new, whether he articulated it to newness or not, and I think it's quite characteristic of Posner to march up to a quagmire and simply dance over it with on a kind of fine bridge of his own making without pointing out that there was this quagmire there and he just doesn't pause to look down. But on the other pending issue, we also made decisive progress. Recognizing that the asymmetry of power in the workplace is a key element of the case. Indeed, one very unusual feature of Carr is that Posner finds the lower court judge wrong on the findings of fact, something that's very unusual on the grounds that they did not include the asymmetry of power in the workplace. Among the facts of the case to what was at issue was Carr's occasional use of an obscene word. General Motors claim that well because she once in a while you've seen word that showed that she was behaving just the same way that the men were behaving and then it was just prank playing and joke telling in which both men and women engage and Posner's simply scoffs at this quite rightly and says the asymmetry of positions must be considered. She was one woman. There were many men. Her use of terms like fuckhead could not be deeply threatening or her place in the hand on the thigh of one of her macho coworkers, intimidating. We have trouble imagining a situation in which male factory workers, sexually harass a lone woman in self defense as it were, yet at its root. That is General Motors characterization of what happened here. It is incredible on the admitted facts. So in other words, the power asymmetry is crucial to a correct analysis of the meaning of the vulgar behavior. And I think that's right and it's extremely important. Notice how Posner gravitates to Mckinnon's dominance paradigm as if it's the only sensible way to look at the situation. Not for a moment. Does he ask how he would show that car suffered intimidation on account of heterosexual desire, which is a phrase that's used all over the place in the earlier cases, it seems to him to be a herring as it obviously is. So all of this, of course I find both right and extremely important. It's a vintage Posner because it's clear, common sense with little concern for the interpretive mess that other judges have made and the theoretical bonds into which they've gotten themselves. This very independent style of opinion writing has great virtues and here it permitted him to go where no judge had gotten before into the very heart of sexual harassment, power and intimidation, and not eroticizism, but the absence of an explicit theoretical analysis or if any critique of prior waves of theorizing, it leaves the opinion isolated and somewhat vulnerable. It didn't in the end, revolutionize the conceptual terrain in the way that it might have had he argued it out more thoroughly. And, uh, it's insights have percolated into the legal literature bit by bit, but often just very gradually and in a piecemeal way. And there's still a lot of confusion about what sexual harassment is and the way that I've indicated now, we're still on this. I'll just end on this note. The incompleteness of the opinion left Posner himself vulnerable to misunderstanding and partly for getting his own achievement. The problem with case by case pragmatism is that one can indeed lose sight of an earlier insight given that it's not set down in the form of continuous theory. And this I think is what happened in a subsequent case called Baskerville versus Collagen. And I want to say that I think the case was probably rightly decided if the facts are all stated, uh, uh, all the salient facts or stated. But nonetheless it was, I think a insufficiently reason. Valerie Baskerville was the secretary in the marketing department of Culligan, a manufacturer of water treatment products over a seven month period. She experienced acts of Harrison at the hands of her supervisor, Michael Hall. Posner enumerates the incidences of conduct in a numbered list one through nine. He then concludes quote, we do not think that these incidents spread over seven months, could reasonably be thought to add up to sexual harassment. He then brings forth an analysis that appears to totally neglect the insights of Carr. He says Sexual harassment is the concept quote designed to protect working women from the kind of male attention that can make the workplace hellish for women end quote, and he evidently means pressure to have sexual relations because he now goes onto divide such pleasures into two categories, the grave ones under which includes assaults and nonconsensual, physical conduct, obscene language and gesture and so on. And then on the other side, the occasional vulgar banter tinged with sexual innuendo, of course, or oafish workers. Um, and then he concludes that the supervisor's behavior falls into this latter category and it was distasteful but not deeply distressing. So, um, sometimes you just forgotten the issue of power. Nowhere in the opinion, does he recognize the possibility of a kind of intimidating aspect to this behavior? And nowhere does he bring the asymmetry of power into the analysis. He doesn't even ask whether the case included such features. He only asks, given that this is about sexual relations, well, how threatened and how threatening and offensive is it? Um, so I think it is likely that Posner decided the case correctly, unless there are significant facts he doesn't mention the buffoonish behavior of the boss, didn't debt up to a hostile work environment, but what's distressing, it's to see the insights of Carr and the framework that they supply just simply out the window and to see Posner revert to the mess that the other judges left the situation in. Now here we have, this is where the self criticism comes in and I think this brings me to a somewhat embarrassing admission. This is where very literary qualities of Posner's judging process that I praised in talking about Carr may have contributed to the, to the deficiencies of Baskerville. Posner likes to tell a good story and he's highly responsive to issues of Joan Carr had all the makings of tragedy or at least melodrama. And he really gets into that and writes in a very powerful way. The behavior of the workers is described as genuinely alarming her suffering is palpable. And so on, and he responds with great sympathy toward her and indignation towards General Motors, Baskerville's tale is another good story, but this time the genre is low comedy. Posner's numbered list of incidents really is very funny. The supervisor's bad jokes, and his idiosyncratic use of language. For one thing, he likes to call a woman a tilly for some idiosyncratic reason of his own devising. So, so all these little odd this do create a picture of a of an odd, but not very threatening individual and it's because Posner makes it funny that the person seems not intimidating but, but only mildly buffoonish. And he does tell the tale with relish inviting us to laugh. But in the process of putting the facts in literary form, of course, he shapes them urging us to think of them as not very grave. And because power asymmetry is an issue for tragedy, not comedy. Well, he just leaves that out. So I think we see here clearly how literary judges' decisions about Joel Aura in the absence of a guiding theory could skew the characterization of facts in such a way as to prevent the important questions from coming to the table. So I think Posner is a creative thinker about sexual harassment and uh, and he's still thinking creatively on this. There are some more recent cases I talk about. His insights have changed the field, uh, and, and they certainly have at least influenced his colleagues on the, on the circuit. There's a very interesting case in which Judge Wood, citing Carr and so, but the insights of Carr, major in bold have not left their mark on the doctrine as decisively and is irrevocably as they might have not even on Posner's own articulation of doctrine. This failure of influence can be attributed to, I believe, to the fact that Posner, pragmatic, and skeptical of theory wrote the opinion in a way that was all too pragmatic. And Dare I say it all too literary

Posner:             00:51:08       Dance over here across the quagmire and responded to the criticism that you were right? I wanted, I wanted to say just a word about what Professor Case, a second response. And then I'll, I want to make a couple of points about Professor Nusssbaum. So, uh, I don't think the prison in the Johnson case wanted to have female guards watching male prisoners. The problem is this is a problem with the whole field of discrimination is that if the prison is discriminating against female guards be sued by the female guards. So I had the choice could be sued by the women or it could be sued by the prisoners. So they decided rather be sued by a prisoner. So they lost. Now with reference to Professor Nusbaum points. So, um, the, the terms that she used, asymmetry of power and a conceptual terrain, they make me cringe.

Nussbaum:           00:52:24       You used the word. The word was um, the asymmetry of physicians must considered.

Posner:             00:52:32       Assymetry position. So it's better. (Laughter) but, but I, I do think the judges are all very, very different from a, uh, from an academic role. And I, you know, and the, and the central task decide the case. Not worry too much about what you've said in the past, tried to try to make the best decision that you can and then it's really for the, the academics or subsequent judges to try to pull together and make sense out of what someone has done. So, um, what was, I can't believe there was anything novel in the Carr case. I mean, it's obvious that you don't require, you don't require sexual desire as sort of an element of sexual harassment. As I say, the worst kind of sexual harassment you see, uh, we see, for example, with the, with the fire departments, it's not that the men want to have sex with the female firefighters. It said, you know, they want it to be an all male sort of thing. They feel humiliated and thought that women might be able to do this really macho stuff, dragging a huge hoses around with them and so on. They also worry that the only thing men really have left is superior upper body strength. Even that is changing when you get more, you know, personal trainers and all that. But we do have the upper body strength and the fireman, fireman argue that the, that they are actually endangered by the women because they can't really lift these huge poses and climb up ladders. And so I don't know if there's any merit to that, but, um, there's a mic, but so the firemen may have a legitimate concern, but obviously also have a feeling of a kind of community of tough guys, you know, don't feel comfortable with a women. This is sort of thing that changes. This is a generational thing. The young fireman going to be as worried as the old guys, you know, it's like monkeys or something like that. He kind of tribe as social animals. You introduce a new commerce alien presence, there's a, there's a rejection. And then eventually people get accustomed to it. So, um, so in this, this, uh, a general motors plant, yeah, the first woman to come into this shop and so on, they try to drive her out. It's obvious they try to a drive her out because she's a woman. And um, the fact that she, you know, response inkind occasionally does, doesn't, excuse I, it was very simple case. Now the Baskerville case is really completely different because this isn't a case about trying to drive women out of the workplace. This is, this is a case where this jerk, the supervisor finds the secretary attractive. He flirts with - he's a buffoon. There would've been no reason at all for me to discuss the asymmetry of position or asymmetry of power because Baskerville she wasn't. It's not as if she responded in kind and that and at the companies said, well, you know, he was, he was hitting on her, but she was hitting on him. You know, that that was the kind of argument at a General Motors made. So if, if an issue that was important to them present in a previous case doesn't come up in the next case. Just ignored. So I think what professor, that's what I was asking for, which we're not, which I would not be comfortable with, is sort of in the first case, you articulate some general, a theory of how a broad class of cases and sexual harassment, all sexual harassment should be decided. And then the next case, you have this elaborate structure that you apply and then you say, well, in the first case we said, you know, a symmetry is important. This is important. Now important in this case, we don't have the asymmetry. You don't have this, we don't have that. But we do have this other element. I just don't write opinions like that. Um, the problem is when, when the, when the men are trying to drive the women out of the workplace, that's, um, that's a very simple case. The next stage Professor Case's a preoccupation is where something about the workplace makes it uncomfortable for women. And that's more complicated because it may be costly, uh, for the, for the company to try to do something, make it equally. So there's always a question, should the women have to adapt to the workplace or workplace be changed for the women, that's a harder case. And also the flirtation cases are hard because there is a lot of flirtation in the workplace and you know, leads to affairs and marriages and this and that. And um, uh, then the line between the innocent, uh, relationships. And the ones in which there is no coercion of some sort, that's a difficult to draw. And to get back to my first point, there's an assumption in the law school obviously that, uh, every dispute should be subject to legal regulation and that's how you maximize the employment of lawyers. So there isn't, I think, enough attention paid to, um, the importance of being able to exclude a bunch of, a relatively unimportant disputes from legal cognizance. So you don't want a situation where you have such elaborate, such elaborate of rules and so many litigation opportunities that I'm an employer can't do anything without being sued. One of the arguments for affirmative action for allowing affirmative action, Reverse discrimination, is that if you don't give the employer some latitude in complying with anti discrimination law, by, you know, providing extra opportunities or something for the minority, then you know, they're going to be a damned if they do and damned if they don't. They're going to be sued if they don't have a lot of minority people working for them. But if they do, then they're sued by the, by the whites for reverse discrimination. You don't want to put them on that razor's edge. You want to give them a latitude. The Supreme Court, I think has done something very sensible in this area with regard to a coworker. Harris meant because it's an easier case. We have a superior coercing a subordinate, but why don't we just have one, a worker harassing another worker. Uh, the obviously the employer cannot control the behavior of all its workers perfectly. So the Supreme Court has said you have to establish a machinery that enables people to complain so you can't shut your eyes to what's going on on the shop floor. We have to provide the machinery for complaints. And that's fine because, because that, um, that says if you supply the machinery and you know, operated in a reasonable fashion, then you're not liable for every little act of discrimination that occurs. So it really gets back to my first point, my initial response to Professor Case, you want, you want to have a sense of perspective about the problems in society. There are big problems and little problems. A lot of the problems I think that she's concerned with our little problems and if, and I don't think we should devote substantial resources, intellectual resources, and a monetary resources to using the legal system, which is so cumbersome and expensive, uh, to, um, to solve quickly.

Nussbaum:           01:02:06       Yeah. I take your point that the way that way the asymmetry and physicians came up in a way that doesn't, it has no parallel in Baskerville. But look, did you say that, um, it a little difficult to imagine a context that would render hall Sally's threatening or otherwise deeply disturbing, but we never learned what the contexts in which we don't learn how many female employees there are. She's the only female employee and her boss was hitting on her even if in a ridiculous way. Well, I mean that's behavior that would probably violate the sexual harassment policies in most universities. And it's something where the very fact that he's the boss makes it important to ask about the asymmetry of positions and how that itself creates a hostile environment. However, he, however polite or frivolous, his overtures were. So that's the,

Posner:             01:02:57       well, as far as I'm concerned, to do what they want to say, you know, men can't speak to women until spoken to, yeah. Thequestion is whether you want to make this illegal,

Nussbaum:           01:03:15       Right. I mean, as I say, I, you know, if you've told the whole story and there are no other facts, probably the case was rightly decided, but I think the question needs to be asked because the reason that universities have these policies is that they recognize that however polite the person is, the very fact that the person is your supervisor creates an implicit threat of withdrawal of some important perks, withdrawal of favors and support and so on. So that, I think that needs to at least be gone through.

Host:               01:03:44       I wanted to world bring those sort of questions so you take your prerogative. I will. I want to take the prerogative of the moderator. One question which will let Mary Anne say anything she wants, which is basically this. The title of this talk was was was supposed to respond to the feminist and it seems to be the opposed to responded very directly to the feminist, which is to say get over it that you were essentially living in a post-feminist world and you're stuck in the past and it's time to move on to more important issues. So I'm kind of curious about what the two of you think about that.

Case:          01:04:24       Okay. Here's the thing. First of all, I want to say it's not my policy just to disagree with you. I agree with everything you said about Carr and the general issues raised in Martha's paper. Secondly, I want to say I'm sorry. You find issues in sex discrimination Not Interesting and say that I am grateful now than it was before for your willingness to engage with me so promptly and so eloquently in your email. I do think that this is a question, but I think it is simply wrong to think that issues of sex discrimination are not serious, and part of the reason for that is I was actually able to talk to Audrey DeClue, but here's what I would like to place more answers to the questions I actually posed in the paper with question marks at the end, why is what's not serious for DeClue serious for Johnson? Serious group Johnson, I mean, I agree with you, we don't want to waste our time on trivial issues, but as between the DeClue situation, which you didn't just involve, uh, the issue of where she was going to urinate, but all these other things that were time barred and also was - as the facts indicate, but as you seem not willing to recognize, bothered the men too, bothered everyone around him. Yes.

Host:               01:05:53       Bothered the men?

New Speaker:        01:05:53       Yes.

New Speaker:        01:05:53       I don't believe that.

Caser:        01:05:54       Well, that's what the record indicates. Um, and, and, um, there weren't any bushes, right? So they were excreting in the public street, violating the law, offending the neighbors generating complaints. There's also a very simple remedy of so called brief reliefs. They would have made - it would have been a win win situation for everyone. You know, they did that. That's what they did for her. Um, when she brought the litigation, um, and as a result of the, well, it's not that they were embarrassed the people who had to see them were embarrassed, they have a problem because people were complaining about them and they also said that they were uncomfortable urinating, probably not so comfortable that to spend the money. Why you believe it in Johnson?

Posner:             01:06:42       Oh they're racial, they're racial, it's racial.

New Speaker:        01:06:51       If it is indeed a fact that one is a black -

Posner:             01:06:56       prisoners, American prisoners, are black, right? You think they just have black female prison guards?

Case:        01:07:05       No, but first of all, one of the things Judge Easterbrook says, and it's majority opinion, is that the rule you've proposed would, would make it impossible to run a prison because for example, as he says, by the same token, quoting Easterbrook here, bysame token, the prison may assign homosexual male guards can monitor male prisoners, heterosexual male darts to monitor feminine male homosexual prisoners and so on. There are too many permutations to place guards and prisoners into multiple classes by sex, sexual orientation, perhaps other criteria. And this is the first I hear that that race is here, and other criteria now in each group to be observed only by the corresponding groups that have -

Posner:             01:07:41       California has a prison just for transgender prisoners.

Nussbaum         01:07:47       This is a complete reversal. I my initial thought was that the reason why you were, you said the Lineman don't care. And in another case of which I really, I'm not kidding, there is a toilet jurisprudence. There's another case about forcing a race track workers to a provider who urine samples in public. He had prospects, situations and, and uh, you go on and that case about, you know, basically get used to it. I'm saying men need side by side of public restrooms. Um, urine samples of both men and women are generally taken by female nurses and technicians. And then you say a class issue, I'm giving a urine sample is not the same for everyone in a particular relevance. It's a particularly slight issue for people who, for whatever reason or subject, frequent medical examinations, the less habituated you were in the more sensitive your life would be. So you come back to the monkeys, right? Why not saying that the male prisoners are not vermin, but monkeys who are exposed to a new environment should, as you say, you just get used to it, right? Learn to accommodate and adapt. Especially since the outside world, as Justice Ginsburg points out in the the BMI opinion, is a cross sex, integrated environment. Now why I think why I originally thought this case from your experience about class, not about race, but you don't talk about the prisoners, the answer of a racially different species. They're not members of a different species from, from yourself. You say some of them may actually be innocent, of the guilty, many are guilty of sumptuary offenses or other victimless crimes, unintentionally similar to lawful activity or esoteric financial and regulatory offenses, some of which do not even require guilty intent. So my original thought was, you know, you, you identify with a, with Johnson in a way to don't with these other prisoners and thinking - would I want to be naked now. I have a completely different insight into your thought process. And one of the things I said in this, uh, thing was that one of the things I was trying to work out is how your mind works and that, you know, the prisoners are, are, um, you know, our, our concern to you rather than the prisoners are, um, you know, financial executives not used to performing excretory functions in public the way racetrack employees are.

Case:               01:10:21       Yeah. I think you've already given the answer in the sense that you began with this provocative remarks, that women don't have anything serious to complain about, but about five times in your responses, you mentioned the very serious cases of sexual harassment that you encountered in the firehouse. And so, so I think the fact that some of these cases are very serious, there's not one that you would, uh, dispute. And so it was a lot of, you just mentioned a couple of things to dispel the general sense that women in the US have, have it easy. I mean, the first is that it's - among democratic nations in the world to us as one of the lowest rates of female have presence in the legislature. Uh, you compare it to Sweden where there about 30 to 40 percent of women in the legislature, very big difference. We have one of the highest rates of sexual violence, both domestic violence and violence outside the home of any of the nations for which adequate data occur and Anne Laghman of this university has done the best study of American sex relations that is known, says that he thinks the biggest surprise for him and then also the most striking finding was that men aren't really aware when they've done something that's forcing a woman. There was this tremendous asymmetry between the number of women who were going to have to experience sexual forceand the number of men who were willing, willing to say in anonymity that they had committed enforceable act and Laghman great sociologists concludes that. The reason is that men just think if they are drunk and the woman is saying no, it doesn't mean, anything, they just go ahead anyway. And so a lot of other studies that confirm that and that's a tremendous problem. We know now that with the Internet conference in November showed that, uh, there's the new possibilities available on the Internet that have led to a lot of other new problems for women and that the humiliation and objectification of people on the Internet is overwhelmingly directed at women on these gossip sites and that there, that's just one more way in which now under cover of anonymity you can harass a woman and trying to drive around law school as, as you all probably know the auto admit case. So. So I don't think that the Judge Posner who would deny that these are serious problems. I guess what I think where I think the difference falls is whether something that's polite and not threatening, but there's still an asymmetry of power is a real problem. And I guess I would say, Oh yeah, I, I've advised graduate students and law students and so on over the years and there's still a tremendous problem of sexual harassment in American universities. And of course, often academics being rather timid characters and they are a rather polite in the way they express themselves. But that doesn't mean that the threat to withdraw support and to withdraw favors any, the less serious. So it's I guess, it might be just that smaller class of cases were disagreeing.

Posner:             01:13:16       I didn't say that there was no such thing as sex discrimination or rape or anything of that sort. Of course there are, there are wrongs done to women, there are remedies. This question is, is what, what bothers me is the notion of a feminist agenda which goes beyond, uh, dealing with the serious problems, sex determination, harassment and what happened and, um, goes out into these fringe, esoteric areas, worrying about modesty. Again, it's just, it's anachronistic.

Nussbaum:           01:14:01       Well, I'm not sure that, that, that I even agree with Mary Anne about that know, Men and women getting upset because of a bathroom in a truck. Yeah. I have to say that maybe here I may be on your side. There was a long distance runner. I just gotten so used to peeing. And even sometimes defecating in public. I don't know, maybe that. But I also think that other people have other sensibilities and if you're running a marathon, runners, books telling you to do that.

Question:           01:15:16       At the risk of lingering on an esoteric problem, I'm curious Of course why these businesses and places wouldn't try to save money for having one bathroom for men and women?

Posner:             01:15:32       They often have just one, you know, one person at a time. I haven't seen it recently. But in Europe there are often female attendants in male bathrooms. But the point is people, I'm not trying to change the mores of Americans make them less shy. I don't care. I just don't think it's something that the legal system should get entangled in, it's just, it's not important there are other many more important problems. and you know, we have an extraordinarily expensive legal system, and you know, a lot of these cases, these cases are funny. The game is you bring a, is your hope to survive summary judgement. You survive summary judgement, you get a settlement. So, um, because, because say if you can make it that far, which you often can do on your own, say-so, you get a settlement. So, um, there is, there are dangers in spreading the net of liability too far, um, and so I think there ought to be a concept of disputes that are worthy of legal attention. And I don't think it's the way women think anymore, but the notion of victimhood, and this and that, and you're discriminated against, this and that. In fact, women have had grown tremendously in self confidence, which is good. We're on the right track and not have to push the law into these very marginal areas.

Case:   01:18:11       I just want to say, having spent time on the frivolous subject of toilets, I want to point out that one answer to the question is the law very often requires sex, segregated toilets, local law, plumbing codes and so on. I think absolutely true, Judge Posner that you don't want to change the mores of society. That's, I think, central, and I had to say again for the 10th time this session, if this is a trivial question. Why is it not equally or more trivial for Albert Johnson as it is for Audrey DeClue?

Posner:             01:18:47       Well I've said that, I think, several times. I've said that the racial problem in the United States is much worse than the gender problem.

Host:               01:19:05       Other questions? Yes.

Question:           01:19:07       This isn't intended to - I'm genuinely curious. How would you feel about a situation where there was an all woman's prison, male prison guards in there, and like Muslim women complaining that was violating their senses?

Case:          01:19:18       I have already said publicly several times that you know, although I am someone who thinks that legal distinctions between males and females are almost never a good idea. The example, the best example I've found over the almost is that situation, not Muslim, so much as they're actually is a case, a Judge Posner may have a better sense than I do have a of what it is in which the prison decided that was not going to have male guards search, female prisoners and the reason for it was a correctional reasons. It's a lot of these women have been damaged by men and are afraid of man and it would not helped their health and rehabilitation and consistent with what Judge Posner said, the male guards sued and said, this violates our right To equal employment opportunity. This seems to be a difficult case and I think if you add the element of Islam, it's an even more difficult case. And I want to. I'm not meaning to duck your Question, but putting it in a context that is a, is a very real one think Guantanamo, uh, or Abu Gharib. Uh, there is the real question because contrary to Judge Posner's view, it's the Muslims rather than the Christians who have the strongest taboos on cross sex observation of nudity, what do you do in a situation where the prisoner is saying you are singling me out for abuse in situations where what the prison and is actually doing is what is routine in American prisons and I don't think we even have to get to nudity. I mean any contact with women, um, beyond, you know, who are not related can, can be seen as offensive. Do we engage in that kind of accommodation? I think no, because I think it is important to me that this group of unrelated males and females sitting together talking about something other than their sex lives, um, is really valuable and fragile instance of American culture that I don't want us to lose

Question:           01:21:30       one more question. I think I'm missing something - Judge Posner When you said, you said that the five percent, five percent of crime committed by women - five percent regardless. I was curious what the connection was that the level of feminism,

Posner:             01:22:01       Well if you look men and women in society? There's pluses and minuses in a systematic manner. Men, as I said, we have our upper body strength, it's all we have left. Women less violence, which is certainly an advantage. They get into trouble with the law less. That's very important.. The uh, they live longer, healthier. they do better in school and then uh, um, they, they have a high degree of reproductive power, superior to the male because women could have children without a man, just needed access to a sperm bank and men of course, can't. Men are more aggressive than it fits them for certain jobs better. Men used to have a big advantage because so many jobs were dirty and dangerous, but now so much is push button, women are able to achieve parity in military and just look across profession. For example, I believe 40 percent of the professional employees of the CIA are women. So it's just very hard to see any field, I mean you have a trivial example, but look at a women's tennis is, look at how much better when you play and how much more popular, look at women's sports in general and how much more athletic physically active

Nussbaum:           01:24:03       But not without title nine.

Posner:          01:24:16       I'm not complaining about Title Nine. When you look at the position of American women, it is, it is, it is good, and there's actually the country has a great many problems you want to focus on the serious problem is you don't want, I don't think you want to have people of very superior intelligence to be devoting their careers to marginal employment discrimination. I don't think it's that important. But another thing about this is you have, you have the cases that, you know, obviously serious one law illegality, rape and so on a kind of sex discrimination cases like that, they're straightforward. You have the other extreme, you have the Baskerville case which is trivial. That is with any legal issue, you're going to have the intermediate cases which were charged. Yeah. So, I don't think the whole time adds up to something that's, that's fascinating. It's not fascinating. So you have to have these legal remedies, but I don't think their existence and their administration, um, raise either profound intellectual issues or profound social issues. I don't know why you're so interested in it.

Case:         01:25:52       Here's the interesting thing in this context. In the opinion, you don't say and wrote the opinion currently without mentioning your actual views, that DeClue's case is trivial or frivolous or a he say she brought it under the wrong legal theory. You actually spent a fair amount of time talking about if she'd only brought it as disparate impact, uh, she would have had great success. And interestingly, as I say in the article as well, that's a really revolutionary thing to say because he says it's disparate impact and it doesn't matter if it's not biological, it's a social or psychological disparate impact. That's something that should be addressed, under disparate impact. And what I say in the case is if you really mean this, and all the other people who want a accommodation for women's care work, all kinds of massive restructuring of the workplace, can cite you for that. For that proposition to say social psychological differences between the sexes can be accomplished in disparate impact doctorate in remedy.

Posner:             01:27:05       Well if she has a potential case under disparate impact, I'm stuck with that, right?

Case:               01:27:12       Did you think at the time her case was frivolous and just not say so because you could dispose of it on this doctrinal view or on you or is that something frivolous case?

New Speaker:        01:27:30       The harassment case -

New Speaker:        01:27:30       It seems to me now saying something more broad because there's a discrimination case rather than people like a human--

New Speaker:        01:27:41       As a matter of common sense this may be a trivial case. But as a matter of sexual harassment doctrine, I think it fails. If under, you know, Supreme Court Law, she has a disparate impact claim. Well, fine, I'm stuck with that, but I will still say it's a matter of common sense it's a trivial case.

Speaker 7:          01:28:11       Please join me in thanking our panelists.

Speaker 1:          01:28:20       This audio file is a production of the University of Chicago law school. Visit us on the web@www.wow. Dot U Chicago Dot Edu.