Formal Complaint

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Dick was nonplussed. He had been selling women's clothing for more than ten years already and felt that as a man, it was well within his abilities. And so, as a matter of principle, he filed a complaint with the U.S. Equal Employment Opportunity Commission, claiming that he had been discriminated against because of his sex, in violation of the Civil Rights Act of 1964.

The complaint vanished into the federal bureaucracy, reemerging in April 1994, when EEOC took sides with Dick Kovacic.

Lillie Rubin's official logic had to do with the fitting rooms in its stores. Because of its ritzy clientele and high-end merchandise, the management reasoned, the salespeople were required to bring garments into the fitting rooms for the customers. Unlike the mirrored cubicles one might find in a Gap store, these were roomy spaces with chairs and couches, rooms big enough for a salesperson and a tailor and a lot of extra space just to be luxurious and feminine. To have a man in the store, especially near the fitting rooms, would be a breach of the customer's privacy.

EEOC questioned that reasoning, and said in its determination: "The evidence, however, shows that males hold similar positions and perform similar duties for other employers without impairing the normal operations of the business and that privacy rights can be protected by means other than the total exclusion of males."

From that determination, it was up to EEOC to try to come to some sort of reconciliation between Kovacic and Lillie Rubin before the issue went to court.

Instead it went to press. It took a year, but reports of Lillie Rubin's plight turned up in the Wall Street Journal as a simple news story. Then it grew.

Senator Lauch Faircloth, a Republican from North Carolina, delivered an impassioned speech to the U.S. Senate titled "A Straitjacket for Lillie Rubin."

"The dressing room of a fine women's clothing store may seem like an odd place for the EEOC to intrude in a way that perfectly illustrates regulatory excess, but that is exactly where we find ourselves today . . . ," he said. "In opposition to its own regulations and its own previous decisions, the EEOC has ruled that a Lillie Rubin store in Phoenix must employ male salespeople, and it is demanding that they be allowed to work in the store's fitting rooms where female customers try on clothes. I know this does not sound like an EEOC case so much as an I Love Lucy rerun, but it is true."

The senator from North Carolina then segued into a rant against the kudzulike encroachment of government regulation on decent businessmen--and women.

The Tampa Tribune picked up the story, as did the Miami Herald and other newspapers. Many of the articles lumped Kovacic's case in with the recent determination that Hooters restaurants had discriminated by not hiring men as barmaids.

None of those big newspapers, incidentally, thought to contact Dick Kovacic about the matter, violating one of the most basic principles of journalistic fairness: The facts just might have gotten in the way of a good story.

"I was not aware that it was mentioned anyplace," Dick says. "I actually thought at this point no one really knew it was going on."

In January of this year, EEOC gave up talking to Lillie Rubin. The agency, like many other federal entities, has no real enforcement capacity, and since it decided not to file suit against Lillie Rubin itself, it issued a Notice of Right to Sue that would allow Kovacic to do so.

Lillie Rubin's lawyers went into spin-control mode.
In February, the Chicago Tribune's syndicated columnist Mike Royko wrote a scathing story about the EEOC decision.

"When you are shopping for a garment and go into the fitting room, would it bother you to have a male salesperson accompany you and be there when you strip down to your undies?" he rhetorically asked female readers.

"No, I am not getting kinky," he continued. "This is a legitimate inquiry. So I will go on.

"Would you be at all embarrassed if this male salesperson helped you on and off with garments? Zipping you up and that sort of thing?

"If your answer is that you don't want some guy looking on when you are down to your bra and panties, I regret to inform you that you are wrong.

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Michael Kiefer