concurring.
I concur in the decision and in all of the/ majority opinion except the part about the equal protection claim. I find the clmm more troublesome than my brethren do, and although ultimately I agree that it/is a valid claim I would characterize it differently from them: not as a claim of sexual harassment but as a claim of failure to protect the plaintiff against such harassment. The difference is important because the male employees who actually harassed her are not the people she has sued.
In rejecting her claim, the district court relied primarily on the principle, enunciated in a number of recent decisions of this court, that the state has no general federal constitutional duty to protect the health or welfare of its people; the Constitution (with immaterial exceptions) is a charter of negative rather than positive liberties. Ellsworth v. City of Racine, 774 F.2d 182, *1190185-86 (7th Cir.1985); Hinman v. Lincoln Towing Service, Inc., 771 F.2d 189, 194 (7th Cir.1985); Jackson v. Byme, 738 F.2d 1443, 1446-47 (7th Cir.1984); Jackson v. City of Joliet, 715 F.2d 1200, 1203-04 (7th Cir.1983); Bowers v. DeVito, 686 F.2d 616 (7th Cir.1982). So if as in Jackson v. City of Joliet, supra, police and firemen negligently fail to save the occupants of a car trapped when through no fault of the state it leaves the road, crashes, and bursts into flame, the state has not deprived the accident victims of liberty. But where the liberty asserted is not the right to basic public services such as police and fire protection but the right to equal treatment irrespective of race or sex, the analysis is more complex. Although there is no constitutional right to police protection, there is a right not to be denied such protection because one is black or a woman. The central purpose of the equal protection clause, made clear by its wording, is to prevent states from withdrawing legal protection from minorities, thereby making the members of minority groups outlaws in the literal sense. Although women are not a minority, and as the district court pointed out were not among the intended beneficiaries of the equal protection clause when it was enacted, intentional discrimination against women is now considered a violation of the clause. If a state or city deliberately refused to provide police protection for women, it would be violating the equal protection clause even though the people from whom it was failing to protect women were private persons rather than government agents.
Now this suit is not against the employees who actually harassed Miss Bohen, but against the city itself and high city officials. Therefore, so far as the harassment itself is concerned, it is as if it had been done by private persons. Thus the issue as I view it is not whether sexual harassment violates the equal protection clause. Miss Bohen is not complaining about sexual harassment as such; she has not named as defendants the people who harassed her; she is complaining about the defendants’ failure to take steps to prevent such harassment. Her legal theory is that by failing to take steps against harassment by her male coworkers the city was guilty of a selective, deliberate withdrawal of police protection from a female employee because of her sex. The district court rejected this theory because the court viewed the city’s policy as one of blanket nonprotection against sexual harassment whether the victims were male or female — viewed the case in short as one where a woman was complaining about lax police protection not for women as such but for all citizens. However, sexual harassment of men by women is extremely rare and there is no suggestion that it ever occurred in the fire department or any other municipal office in East Chicago. A policy of never responding to complaints about sexual harassment can therefore be analogized to a police department’s policy of never responding to complaints of rape. Such a policy would violate the equal protection clause if no effort were made to justify the policy; it would not be saved by pointing out that men sometimes rape other men and that (depending on the specific wording of a state’s rape law) a woman might in principle rape a man.
There must, though, be a policy of non-response to complaints of harassment, or an authoritative decision not to respond; no more than in Title VII cases (even less, I shall argue) is the employer automatically liable for acts of harassment by employees. See Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421-22 (7th Cir.1986). But the facts found by the district court show a policy — not a policy of harassment, whatever exactly that would be, but a deliberate refusal to respond to complaints of harassment. The chief of the fire department was aware of the harassment, which was frequent rather than isolated and in which at least one supervisory employee was implicated; yet he did nothing. It was as if the chief knew that his men were systematically refusing to put out fires in homes owned by blacks, yet did nothing to correct the situation.
*1191All this is not to suggest that the equal protection clause requires a state or municipality to devote disproportionate resources to preventing (or, more realistically, limiting) sexual harassment. Suppose the City of East Chicago had for purely fiscal reasons decided that in its fire department the law of the jungle would reign; the city would not discipline any employee for any misconduct, sexual or otherwise, toward another employee — whether the misconduct was theft, or battery, or rape, or anything else. Then women employees, even if they were hurt more by the policy than the men, could not complain of a selective withdrawal of protection, and hence of intentional discrimination against them, any more than they could complain if the city paid the market wage rate to all its employees and the rate happened to be higher for men than for women. American Nurses’ Ass’n v. Illinois, 783 F.2d 716, 722 (7th Cir.1986). But the record does not suggest that the city was indifferent to employees’ misconduct toward each other; so far as appears, the city disciplined employees for all misconduct except sexual harassment, with the result of giving its female employees systematically less protection than its male employees.
If there were a reason for this disparity, the disparity would not be actionable discrimination. In General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), the Supreme Court held that an employer could, without violating Title VII, refuse to pay disability benefits for pregnancy, even though the burden of the refusal fell entirely on its female employees; it was enough, to rebut an inference of sex discrimination, that pregnancy differed in relevant respects from other conditions that require absence from work. Conceivably, sexual harassment may differ sufficiently from other forms of employee misconduct to justify fewer preventive efforts by the employer. It is difficult to police (because it is hard to distinguish from ordinary workplace flirtation), and probably can never be completely extirpated from the workplace. A reasonable effort to limit it is all that Title VII requires, as we noted recently in reference to the related problem of racial harassment in the workplace, see Hunter v. Allis-Chalmers Corp., supra, 797 F.2d at 1421-22; and what is good enough under Title VII should be good enough under the Constitution. Indeed, an effort that fell far short of being reasonable could still rebut an inference of intentional discrimination — the only type of discrimination the equal protection clause forbids. Suppose the defendants were distressed at the sexual harassment in the fire department and did their best to stamp it out, but their best was very poor — was below an objective standard of reasonable care. Still it would be hard to say they were guilty of intentional discrimination, when their intent was not to discriminate. But so far as appears, the city simply didn’t care whether its female employees were harassed. Even though (as I shall argue shortly) efficiency would have required some efforts to prevent or at least limit such harassment, the city did nothing. Its inaction brings this case within the orbit of the example I gave earlier of a fire department that has a policy of never responding to calls from black homeowners.
There is another way of looking at this case, but it leads to the same conclusion. By taking no steps to prevent sexual harassment, the city created a worse working environment for women than for men, and this lowered the women’s wages (net of all disamenities and other costs of work) relative to the men’s. That is discrimination, though in a constitutional analysis it might be excusable on various grounds— for example, that the cost of preventing sexual harassment without overly intrusive surveillance of workers was prohibitive; but no effort at excuse or justification was made. It is as if the city decided to provide restrooms for male but not female employees, and when pressed for a reason said it simply didn’t care whether its female employees were comfortable or not. That is a fair summary of the city’s position in this case. Hostility to women was not shown, but did not have to be; indifference to their welfare was enough.
*1192The case can also be analogized to one of constructive termination. If the defendants refused to hire women who were as qualified as men, or fired women in circumstances where men would not be fired, there would be little argument over whether this was intentional discrimination. But a policy of never responding to complaints of sexual harassment will make the workplace unbearable for many women, and force them to quit; that is constructive termination, and is the same thing in law as firing. See, e.g., Remus v. Amoco Oil Co., 794 F.2d 1238, 1240 (7th Cir.1986); Parrett v. City of Connersville, 737 F.2d 690, 694 (7th Cir.1984). If responding to such complaints would put special burdens on the employer, as granting disability benefits for pregnancy might do, the inference of intentional' discrimination would be weakened, perhaps destroyed; but no extenuating circumstances are suggested in this case. The city isn’t being asked to do more for women than for men, as General Electric was being asked to do in the Gilbert case. Male employees, so far as appears, can get a response to any complaint of misconduct by coworkers; females can get no response to complaints of sexual misconduct by coworkers. To labor perhaps excessively the main point of this opinion, if the city’s reason for turning a deaf ear to this subset of complaints about misconduct were something other than the victims’ sex, the city would not be guilty of intentional discrimination, the only kind that violates the equal protection clause. But it has advanced no reason.
The district court thought that one reason that the city’s failure to protect Miss Bohen against sexual harassment did not violate the equal protection clause was that such harassment serves no bona fide municipal purpose. Probably that is true. If such harassment is rampant, the city will have to pay higher wages to attract female employees. It is unlikely to reap an offsetting gain in lower wages for male employees who obtain along with their jobs a license as it were to harass female workers. Many, perhaps most, men don’t want such a license; and among those who do, still most don’t value it as much as women disvalue being harassed. More important, the productivity of both male and female employees must suffer if harassment is common. But to infer from the fact that sexual harassment is not in the employer’s best interests that the amount of harassment is no more than the irreducible residue after all reasonable efforts are taken to prevent it would be perilous on three grounds. First, the record discloses no efforts. Second, public agencies do not have as strong incentives as private firms to follow efficient practices. Compare American Nurses’ Ass’n v. Illinois, supra, 783 F.2d at 720. The City of East Chicago’s fire department has no competition; nor has it shareholders who will benefit if it reduces its costs of operation. Third, the people who control a public agency may want to discriminate against some group; indeed, that is the basic justification for the equal protection clause. Government agencies do not always behave in accordance with the principles of enlightened government. The findings made by the district court indicate that the City of East Chicago allowed Miss Bohen to be harassed by her coworkers in the fire department for no other reason than that she was a woman; this is intentional sexual discrimination and violates the equal protection clause.