ON TIME ON TIME ON TIME BUSINESS MANAGEMENT A+ WORK, ON TIME, NO PLAGARIZING; ON TIME

2437

Harassment and Capabilities: Discrimination and Liability in Wetzel v Glen St. Andrew Living Community, LLC

Martha C. Nussbaum†

I. WHAT MARSHA WETZEL WAS UNABLE TO DO

Following the death of her long-term partner, Marsha Wet-

zel, openly lesbian, moved into Glen St. Andrew Living Commu-

nity, a residential community for older adults.1 Almost immedi-

ately she faced “a torrent of physical and verbal abuse” from the

other residents, targeting her sexual orientation.2 She complained

repeatedly to management.3 Instead of helping her, “the staff’s re-

sponse was to limit her use of facilities and build a case for her

eviction.”4 The abuse she suffered was widespread and severe.5

Verbal abuse was harsh and obscene, including terms such as

“fucking dyke” and “fucking faggot.”6 One resident threatened to

“rip [her] tits off.”7 There was also actual physical abuse. One resi-

dent rammed his walker into the motorized scooter Wetzel uses to

get around, knocking her off a ramp.8 Another “bashed her wheel-

chair into a dining table that Wetzel occupied, flipping the table

on top of Wetzel.”9 In another incident, she was struck in the head

and knocked off her scooter. People spat at her in the elevator.10

Wetzel routinely reported this abuse to St. Andrew, but they

“were apathetic.”11 Not only that, but they also took “affirmative

† Ernst Freund Distinguished Service Professor of Law and Ethics, The University

of Chicago. For excellent research assistance, I am grateful to Jared Mayer.

1 Wetzel v Glen St. Andrew Living Community, LLC, 901 F3d 856, 859 (7th Cir 2018).

2 Id.

3 Id.

4 Id.

5 The court at this stage (a motion to dismiss) accepted her account as true, recog-

nizing that St. Andrew would have an opportunity to contest it at trial. See Wetzel, 901

F3d at 861.

6 Id at 860.

7 Id.

8 Id.

9 Wetzel, 901 F3d at 860.

10 Id.

11 Id.

2438 The University of Chicago Law Review [87:2437

steps to retaliate against Wetzel for her complaints.”12 They gave

her a less favorable spot in the dining room. They halted her

cleaning services. They barred her from the lobby except to get

coffee. They accused her of smoking in her room; when she said

she had been sleeping, one of them slapped her in the face. They

began building a case for her eviction, and they did nothing to

discipline the harassing tenants.13

Wetzel’s Tenant’s Agreement guaranteed access to common

facilities, including a community room and a laundry room, and

three meals daily served in a central location.14 Wetzel, however,

could not avail herself of those guaranteed privileges: “She ate

meals in her room, forgoing those included as part of the [Ten-

ant’s] Agreement. . . . She did not use the laundry room at hours

when she might be alone. And she stayed away from the common

spaces from which she had been barred by management.”15

Eventually, Wetzel sued St. Andrew, claiming that “it failed

to provide her with non-discriminatory housing and that it retal-

iated against her because of her complaints, each in violation of

the Fair Housing Act.”16 St. Andrew maintained that the Fair

Housing Act17 (FHA) imposes liability only on those who “act with

discriminatory animus,” which Wetzel had not alleged.18 The dis-

trict court agreed, dismissing Wetzel’s suit. Wetzel appealed the

dismissal. The Seventh Circuit reversed and remanded for fur-

ther proceedings.19

Writing for the three-judge panel, then–Chief Judge Diane

Wood offered an account of the FHA that “read [it] more broadly”

than the district court did.20 In her view, the issue turned crucially

on what Marsha Wetzel was unable to do: whether the discrimi-

nation was sufficiently pervasive and severe to constitute what

Chief Judge Wood, analogizing to Title VII sexual harassment

cases, termed a “hostile housing environment.”21 To determine

this, the court needed to understand what opportunities and priv-

ileges Wetzel was guaranteed in the Tenant’s Agreement and how

12 Id.

13 Wetzel, 901 F3d at 860–61.

14 Id at 859.

15 Id at 861.

16 Id at 859.

17 Pub L No 90-284, 82 Stat 81, codified as amended at 42 USC § 3601 et seq.

18 Wetzel, 901 F3d at 859.

19 Id.

20 Id.

21 Id at 861.

2020] Harassment and Capabilities 2439

far the discrimination interfered with those privileges, prevent-

ing her from doing things she was supposed to be able to do.22

Further, the court insisted that in such a situation of pervasive

discrimination, inactivity on management’s part is sufficient for

liability under the FHA.23 In Wetzel’s case, management went be-

yond inactivity and engaged in retaliation.

A crucial backdrop to Wetzel v Glen St. Andrew Living Com-

munity, LLC24 is Hively v Ivy Tech Community College of Indi-

ana,25 in which the Seventh Circuit ruled that discrimination on

the basis of sexual orientation is discrimination on the basis of

sex under Title VII.26 The Supreme Court has now concurred in

Bostock v Clayton County.27 Although Hively was not appealed

and therefore played no official role in Bostock, the Court’s rea-

soning is very similar to that used by the Seventh Circuit in

Hively. As Chief Judge Wood mentioned early in her opinion in

Wetzel, both parties accepted that the ruling in Hively “applies

with equal force under the FHA.”28 This therefore needs no fur-

ther argument.

My analysis will set Wetzel in the context of a past exchange

between Judge Wood and me about my Capabilities Approach

(CA).29 I shall argue that we do not really need the CA to see what

is well done about Judge Wood’s opinion, but that her approach

dovetails methodologically with the CA. This convergence is not

surprising. My CA does not claim that judges should engage in

applied philosophy; instead I have claimed that a related ap-

proach is already in place in our legal tradition of thinking about

discrimination, both under the Equal Protection Clause of the

Fourteenth Amendment and under Title VII. Now we may add

the Fair Housing Act.

22 Wetzel, 901 F3d at 861–62.

23 Id at 859.

24 901 F3d 856 (7th Cir 2018).

25 853 F3d 339 (7th Cir 2017) (en banc).

26 Id at 341. See also 42 USC § 2000e-2(a).

27 140 S Ct 1731 (2020).

28 Wetzel, 901 F3d at 862.

29 See generally Diane P. Wood, Constitutions and Capabilities: A (Necessarily) Prag-

matic Approach, 10 Chi J Int L 415 (2010); Martha Nussbaum, Reply to Diane Wood, Con-

stitutions and Capabilities: A (Necessarily) Pragmatic Approach, 10 Chi J Int L 431 (2010).

2440 The University of Chicago Law Review [87:2437

II. THE CAPABILITIES APPROACH, CONSTITUTIONS, AND

LEGISLATION

The CA has two related purposes, one descriptive and one

normative.30 As a descriptive project, which originated within in-

ternational development economics, the CA holds that the most

significant and illuminating way to compare nations (or regions

or households)—the most pertinent space of comparison31—is not

GDP per capita, nor is it utility; rather, it is what the people in

question are actually able to do and to be. Methodologically, the

approach sought to replace lofty distanced economic accounts of a

nation’s well-being or quality of life with an account that moved

much closer to people and asks how the people are really doing in

matters of importance to them. We ask about capability, not ac-

tual functioning, because choice is salient in the approach: what

is important for people is to have real solid options—or what is

sometimes called “substantial freedoms”—not to be pushed into a

single mode of functioning, however glorious.

What was really going on in the background was that inter-

national development agencies were using average GDP as a

measure purporting to say how life was in a nation. It did not

really do that, since a nation might be very wealthy but not dis-

tribute those riches in a way that makes people able to do key

things that they want to do. This flaw had long been evident to

people on the ground, but such ordinary people could not just

walk into the International Monetary Fund or the World Bank.

For this reason, in all my books on the CA, I have talked endlessly

to such people and put their stories into my writing in order to

show what the GDP approach misses. I often have said that my

role is not to make up something utterly new, but to act as a kind

30 The CA is a “they” not an “it.” The theory was developed by Professor Amartya

Sen and by me, and there is now the large Human Development and Capability Associa-

tion (HDCA) dedicated to continuing the CA further. In this Essay, I state only my own

views, and do not comment on how far they differ from the views of others. For fuller

development of my own views, see generally Martha C. Nussbaum, Creating Capabilities:

The Human Development Approach (Harvard 2012); Martha C. Nussbaum, Frontiers of

Justice: Disability, Nationality, Species Membership (Harvard 2006); Martha C. Nuss-

baum, Women and Human Development: The Capabilities Approach (Cambridge 2000).

Differences between my views and those of Sen are discussed in Nussbaum, Creating Ca-

pabilities at 69–76 and further in Martha C. Nussbaum, Labor Law and the Capabilities

Approach, in Brian Langille, ed, The Capability Approach to Labour Law 62–81 (Oxford

2019). Since I can be taken as an authority on views that I created, I shall not include

further citations, except where a specific subject matter suggests them.

31 This is a common term in development economics for designating a parameter of

measurement.

2020] Harassment and Capabilities 2441

of lawyer for the interests of common people who want a flourish-

ing life.

What, then, are capabilities? I identify three types. First are

what I call basic capabilities, the innate material out of which the

more interesting capabilities grow. Second are internal capabili-

ties: characteristics of persons formed by training and opportunity

to make a choice in the relevant area. (In a very fruitful dialogue

with University of Chicago Professor James Heckman, it has be-

come clear that this is the usage of the word “capability” in the

human capital movement, of which he is a leading exponent.)32

But people may have internal capabilities and be prevented from

exercising them, by political repression, social discrimination, or

lack of means. The type of capability most pertinent to the nor-

mative aspect of the CA is what I call combined capabilities: in-

ternal capabilities plus suitable political and social conditions to

choose the relevant functioning.

Such an approach can wax normative rather quickly. Indeed,

the CA’s descriptive use to specify a metric of comparison already

involved normativity. Some combined capabilities (for example,

the ability to sing while standing on one’s head) are trivial, and

nobody would claim that they are indices of how well a nation is

doing, or appropriate goals for public policy. Some capabilities are

outright bad (for example, the ability to harass women in the

workplace). One can measure the quality of life of a group by the

extent to which that bad capability is kept in check. In practice,

then, in saying that national or regional well-being should be

measured by capabilities rather than by GDP, our band of insur-

gents were always assuming that we’re talking about capabilities

that are both good and important. The Human Development Re-

ports of the United Nations Development Programme (UNDP) al-

ready single out dozens of these (especially in the domains of

health and education, since the United Nations is standoffish

about political liberties) in creating its comparative measures.

But I have taken the next step, defending a group of ten capabil-

ities as normatively fundamental for political justice: a nation

cannot claim to be even minimally just unless these ten have all

32 See generally Heckman on Capabilities, in Nussbaum, Creating Capabilities,

Appx A at 193 (cited in note 30). Heckman also gave a superb plenary address on the two

approaches at the annual meeting of the HDCA at Georgetown University in September

2015, but so far as I am aware, it has not been published. For a later version of this paper,

see generally James J. Heckman and Chase O. Corbin, Capabilities and Skills (NBER

Working Paper 22339, June 2016), archived at https://perma.cc/PWH3-J3E5.

2442 The University of Chicago Law Review [87:2437

been extended at a reasonably high threshold level to all the na-

tion’s people.33 (You can see that, in many ways, my project dove-

tails with the international human rights movement.)

33 My list, the same in all three books and many articles:

The Central Capabilities

1. Life. Being able to live to the end of a human life of normal length; not

dying prematurely, or before one’s life is so reduced as to be not worth living.

2. Bodily health. Being able to have good health, including reproductive

health; to be adequately nourished; to have adequate shelter.

3. Bodily integrity. Being able to move freely from place to place; to be

secure against violent assault, including sexual assault and domestic vio-

lence; having opportunities for sexual satisfaction and for choice in matters

of reproduction.

4. Senses, imagination, and thought. Being able to use the senses, to

imagine, think, and reason—and to do these things in a “truly human” way,

a way informed and cultivated by an adequate education, including, but by

no means limited to, literacy and basic mathematical and scientific train-

ing. Being able to use imagination and thought in connection with experi-

encing and producing works and events of one’s own choice, religious, liter-

ary, musical, and so forth. Being able to use one’s mind in ways protected

by guarantees of freedom of expression with respect to both political and

artistic speech, and freedom of religious exercise. Being able to have pleas-

urable experiences and to avoid nonbeneficial pain.

5. Emotions. Being able to have attachments to things and people outside

ourselves; to love those who love and care for us, to grieve at their absence;

in general, to love, to grieve, to experience longing, gratitude, and justified

anger. Not having one’s emotional development blighted by fear and anxi-

ety. (Supporting this capability means supporting forms of human associa-

tion that can be shown to be crucial in their development.)

6. Practical reason. Being able to form a conception of the good and to

engage in critical reflection about the planning of one’s life. (This entails

protection for the liberty of conscience and religious observance.)

7. Affiliation.

A. Being able to live with and toward others, to recognize and show

concern for other human beings, to engage in various forms of social

interaction; to be able to imagine the situation of another. (Protecting

this capability means protecting institutions that constitute and nour-

ish such forms of affiliation, and also protecting the freedom of assem-

bly and political speech.)

B. Having the social bases of self-respect and nonhumiliation; being

able to be treated as a dignified being whose worth is equal to that of

others. This entails provisions of nondiscrimination on the basis of

race, sex, sexual orientation, ethnicity, caste, religion, and national

origin.

8. Other species. Being able to live with concern for and in relation to an-

imals, plants, and the world of nature.

9. Play. Being able to laugh, to play, to enjoy recreational activities.

10. Control over one’s environment.

A. Political. Being able to participate effectively in political choices

that govern one’s life; having the right of political participation, pro-

tections of free speech and association.

2020] Harassment and Capabilities 2443

How should these central capabilities be promoted in a na-

tion? Well, one could always rely on legislation, but legislation is

fragile, and these are very fundamental entitlements. So, I have

suggested that a nation making a constitution should build pro-

tections for these ten into its enumeration of fundamental rights.

India and South Africa have already done a good deal of this, for

example. I am of course not suggesting that philosophers should

dictate to the many peoples of the world, and respect for diversity

is something I have theorized repeatedly. Mine is a persuasive

proposal, which people may take up if it suits them.

Invited to write a Supreme Court Foreword for the Harvard

Law Review (“Foreword”), I decided to pursue my

CA/Constitution proposal in the US context, asking how far our

own constitutional tradition has incorporated elements of CA-like

thinking, and using some of those conclusions to comment on

cases of the 2006 Term.34 My answer was complex: some of the

formative philosophical ideas shaping the CA (particularly ideas

of Aristotle and of the Greek and Roman Stoics) did animate some

of our Founders, especially James Madison and Thomas Paine,

and in a diffuse way worked themselves into our founding docu-

ments. On the one hand, the US Constitution itself does not go

where Paine determinedly goes, toward broad government protec-

tion for a wide range of social and economic capabilities. In areas

such as education and health, the Constitution is silent (although

Justice Thurgood Marshall did make a heroic effort to argue that

a right to education is implicit in the free speech right35). On the

other hand, there are a few areas in which our constitutional tra-

dition does embody a very general type of capability reasoning,

focusing on what people are actually able to do and be rather than

on a more abstract notion of either freedom or equality. One area

I studied was the Free Exercise Clause, where the tradition has

not been content with the absence of persecution but has asked

B. Material. Being able to hold property (both land and movable

goods), and having property rights on an equal basis with others; hav-

ing the right to seek employment on an equal basis with others; having

the freedom from unwarranted search and seizure. In work, being able

to work as a human being, exercising practical reason and entering into

meaningful relationships of mutual recognition with other workers.

See, for example, Nussbaum, Creating Capabilities at 33–34 (cited in note 30).

34 See generally Martha C. Nussbaum, The Supreme Court 2006 Term – Foreword: Con-

stitutions and Capabilities; “Perception” Against Lofty Formalism, 121 Harv L Rev 4 (2007).

35 See, for example, San Antonio Independent School District v Rodriguez, 411 US 1,

111–15 (1973) (Marshall dissenting).

2444 The University of Chicago Law Review [87:2437

whether people are really able to exercise their religion, and ex-

ercise it on a basis of equality with others.36 Another, crucial for

us here, is discrimination, as understood in judgments of equality

under the Equal Protection Clause.37 I’ll shortly return to that

topic.

Judge Wood accepted an invitation from the American Philo-

sophical Association to comment on my Foreword at a program

session in December 2008. We later decided to publish our ex-

change, and did so in the Chicago Journal of International Law

in 2010.38 She made many valuable points, such as examining a

variety of international documents that protect capabilities and

showing that capabilities not protected under the federal Consti-

tution are sometimes protected in state constitutions.39 But, like

me, she was pessimistic about finding them all in the actual doc-

uments, and she was disposed to think that judges could not

simply read them in, unless there was a legislative hook.40 (I to-

tally agree.) She did, however, sympathize with a canon of statu-

tory construction holding that an act of Congress should not be

construed to violate the CA if there is another available construc-

tion that makes it consistent with the CA.41 And, more to my pur-

pose in the present Essay, she said that a judge could think of the

CA methodologically, suggesting a set of questions judges might

ask of a constitutional provision.42 In the Foreword, I had indeed

argued that the CA suggests such a method, urging the judge to

get close to people and the complexities of their situation, rather

than retreating to a position of lofty formalism.43

III. CAPABILITIES AND SEX DISCRIMINATION:

EQUAL PROTECTION AND TITLE VII

Now we get to our topic: discrimination. In one section of my

Foreword, I examined a tradition of thinking about the Equal Pro-

tection Clause, in cases relating to putatively “separate but equal”

facilities.44 Here, I said, what the Supreme Court has done, and

rightly so, was not to rest content with formal symmetry, but to

36 See Nussbaum, 121 Harv L Rev at 60–64 (cited in note 34).

37 See id at 64–67.

38 See note 29.

39 See Wood, 10 Chi J Int L at 416–20 (cited in note 29).

40 Id at 428.

41 Id at 424–26.

42 Id at 424.

43 See Nussbaum, 121 Harv L Rev at 24–33 (cited in note 34).

44 Id at 64–67.

2020] Harassment and Capabilities 2445

press the question, “What are the people actually able to do and

be?” I looked first at Brown v Board of Education,45 defending the

Court against Professor Herbert Wechsler’s famous critique that

urges courts to seek “neutral principles,” by which he meant prin-

ciples so far removed from the doings and emotions of the parties

that the alleged inequality just disappears.46 I then examined

Loving v Virginia47 in a similar vein, saying that the Court rightly

refused the bogus and abstract symmetry of the Supreme Court

of Virginia (all is well because Blacks can’t marry Whites and

Whites can’t marry Blacks), insisting that in terms of how people

are enabled to act and choose in society, the anti-miscegenation

laws positioned the two races entirely differently.48

For our purposes, however, the most relevant case is United

States v Virginia,49 the case that opened the doors of the previ-

ously all-male Virginia Military Institute (VMI) to women.50 Here,

Justice Ruth Bader Ginsburg used a CA-like method of thought

in reaching the conclusion that the two programs (VMI and its

allegedly equal, female alternative, the Virginia Women’s Insti-

tute for Leadership at Mary Baldwin College) were not equal at

all: the program for women was profoundly inferior, and so the

sex-based restriction violates the Equal Protection Clause.51 If a

program is an adequate remedy for a denial of opportunity, she

says, it must “place persons unconstitutionally denied an oppor-

tunity or advantage in ‘the position they would have occupied in

the absence of [discrimination].’”52 This is a precise statement of

the notion of combined capability: the person’s total position

where opportunity is concerned. Virginia’s proposed formal sym-

metry of programs did not meet the test of capability. The Mary

Baldwin graduate, Justice Ginsburg concluded, lacked many op-

portunities characteristic of the VMI graduate. She was taught

by an inferior faculty, with fewer PhDs.53 Her curriculum was a

45 347 US 483 (1954).

46 Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv L

Rev 1, 17 (1959).

47 388 US 1 (1967).

48 Nussbaum, 121 Harv L Rev at 64–67 (cited in note 34).

49 518 US 515 (1996).

50 Id at 519.

51 Id at 557.

52 Id at 547 (alteration in original), quoting Milliken v Bradley, 433 US 267, 280 (1977).

53 United States v Virginia, 518 US at 526.

2446 The University of Chicago Law Review [87:2437

“pale shadow” of VMI’s.54 She did not enjoy the benefits of the sup-

portive VMI alumni network.55 In short, however attractive the

formally symmetrical remedy seems from a distance, up close it

does not pass the test of promoting truly equal capabilities.

This Equal Protection Clause tradition is totally in line with

what the CA recommends: the relevant criterion is what people

are actually able to do and be. Of course the Court did not go out

and read a philosophical theory and then apply it; but the theory

in its origin is a kind of countertheory to ambitious types of for-

malism that ignore what is important to people.

Sex discrimination is sometimes, as in United States v Vir-

ginia, dealt with by constitutional law, under the Equal Protection

Clause. More often, however, it relies on Title VII. Sexual harass-

ment litigation, in particular, is almost always grounded in Ti-

tle VII, and on the long line of cases in which the Supreme Court

has agreed that workplace sexual harassment can be sex discrim-

ination under Title VII if either an “economic quid pro quo” is in-

volved or the harassment creates a “hostile working environment”

for the plaintiff.56 It is by now settled that to show a hostile work

environment a plaintiff need not show grave psychological injury.

She only needs to show that the conduct is “severe or pervasive

enough to create an objectively hostile or abusive work environ-

ment,”57 on the basis of “the frequency of the discriminatory con-

duct; its severity; whether it is physically threatening or humili-

ating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.”58 This, espe-

cially the last clause, is capability talk: we are asked to look at

what the employee is able or unable to do, given the harassment.

Now we get to the heart of the matter for our purposes: em-

ployer liability. In a recent paper, Judge Wood has shown con-

vincingly that there remains a lot of unclarity about this issue.59

I think one thing that does emerge with clarity is that a showing

of employer malice is not necessary for liability; the questions

that survive deal with other matters, such as whether employers

can avoid liability by having a written antiharassment policy. But

54 Id at 553, quoting United States v Virginia, 44 F3d 1229, 1250 (4th Cir 1995) (Phil-

lips dissenting).

55 United States v Virginia, 518 US at 552.

56 Meritor Savings Bank v Vinson, 477 US 57, 64–65 (1986).

57 Harris v Forklift Systems, Inc, 510 US 17, 21 (1993).

58 Id at 23.

59 See generally Diane P. Wood, Sexual Harassment Litigation with a Dose of Reality,

2019 U Chi Legal F 395.

2020] Harassment and Capabilities 2447

let me consider just one case from the Seventh Circuit that seems

quite parallel to Wetzel, in which the court found liability simply

on the basis of total inaction. That case is Carr v Allison Gas Tur-

bine Division, General Motors Corp,60 and the author of the ma-

jority panel opinion is then–Chief Judge Richard Posner.61 Judge

Posner started his analysis by pointing out that the question is,

first, “whether the plaintiff was, because of her sex, subjected to

such hostile, intimidating, or degrading behavior, verbal or non-

verbal, as to affect adversely the conditions under which she

worked.”62 This he graphically described, by depicting the obscene

and threatening behavior to which her fellow employees subjected

her on a daily basis (using demeaning sexual language and

stereotypes).63

The second question is whether the employer’s response to its

employees’ behavior was negligent. “It would be unrealistic to ex-

pect management to be aware of every impropriety committed by

every low-level employee. But if it knows or should have known

that one of its female employees is being harassed, yet it responds

ineffectually, it is culpable.”64 The two questions are “linked,”

Judge Posner remarked, “because the greater the harassment . . .

is—the likelier is the employer to know about it or to be blame-

worthy for failing to discover it.”65 In the case at hand, he con-

cluded that negligence was amply proved. In an early period when

Mary Carr did not complain, Judge Posner still found that Gen-

eral Motors (GM) should have known about it. But he focused on

a period starting in August 1988 during which Carr actively com-

plained. Judge Posner found GM’s response utterly inadequate:

“No disciplinary action was undertaken against any of Carr’s

coworkers; no one was even reprimanded for the harassment.

General Motors was astonishingly unprepared to deal with prob-

lems of sexual harassment, foreseeable though they are when a

woman is introduced into a formerly all-male workplace.”66 Later

he stated that “[n]o reasonable person could imagine that General

60 32 F3d 1007 (7th Cir 1994).

61 I first discussed this case in Martha C. Nussbaum, Poetic Justice: The Literary

Imagination and Public Life 104–11 (Beacon 1996), and subsequently in Martha C. Nuss-

baum, Carr, Before and After: Power and Sex in Carr v Allison Gas Turbine Division, Gen-

eral Motors Corp, 74 U Chi L Rev 1831 (2007).

62 Carr, 32 F3d at 1009.

63 Id at 1009–11.

64 Id at 1009.

65 Id.

66 Carr, 32 F3d at 1012.

2448 The University of Chicago Law Review [87:2437

Motors was genuinely helpless, that it did all it reasonably could

have done.”67 “All it reasonably could have done” sets a demand-

ing standard for management. As Chief Judge Wood remarked in

Wetzel, courts interpreting Title VII have refrained from turning

it into a general civility code, and have insisted that judges filter

out “the ordinary tribulations of the workplace, such as the spo-

radic use of abusive language, gender-related jokes, and occa-

sional teasing.”68 Employers are not liable if they fail to stop these

minor inconveniences, but they are liable if they fail to do all in

their power to stop pervasive and severe forms of discrimination.

IV. LIABILITY FOR HARASSMENT: THE FHA AND WETZEL

Title VII cases do two things important for the judge deciding

Wetzel. First, they establish that a hostile work environment

should be demonstrated by finding interference with functioning.

Hostile intent is neither here nor there: The inquiry is an objec-

tive one, using a notion akin to my notion of combined capability.

And mere displeasure is insufficient—interference with activity

needs to be shown. Second, Title VII establishes that mere inac-

tion and mere absence of discriminatory animus are insufficient

to get management off the hook. It needs to address, energetically

and as best it can, the root of the problem: interference (by the

discriminators) with the plaintiff’s ability to function.

What remained to be established in Wetzel, then, was that

the FHA sets similar standards for both hostile environment and

liability. The facts are very similar to the facts in Carr, both as to

the severity of the harassment and as to management’s complete

failure to take relevant remedial steps:

We have no quarrel with the idea that direct liability for in-

action makes sense only if defendants had, but failed to de-

ploy, available remedial tools. St. Andrew protests that it can

only minimally affect the conduct of its tenants because ten-

ants expect to live free from a landlord’s interference.

Control in the absolute sense, however, is not required for

liability. Liability attaches because a party has “an arsenal

of incentives and sanctions . . . that can be applied to affect

conduct” but fails to use them. St. Andrew brushes aside the

67 Id.

68 Wetzel, 901 F3d at 866 (quotation marks omitted), quoting Faragher v City of Boca

Raton, 524 US 775, 788 (1998).

2020] Harassment and Capabilities 2449

many tools for remedying harassment that it has pursuant to

the [Tenant’s] Agreement. For example, the Agreement al-

lows St. Andrew to evict any tenant who “engage[s] in acts or

omissions that constitute a direct threat to the health and

safety of other individuals” or who “engages in any activity

that [St. Andrew] determines unreasonably interferes with

the peaceful use and enjoyment of the community by other

tenants.”69

Indeed, St. Andrew was worse off than General Motors was in

Carr: for it did not do nothing, it actively retaliated against Wet-

zel for her complaints. To prove retaliation, Chief Judge Wood

reasoned, a plaintiff need not show hostile intent on the part of

the defendant, in this case some type of discriminatory animus.

Wetzel needed only to show that she engaged in a protected activ-

ity, that she suffered an adverse action, and that there was a

causal connection between the two.70 “Like all anti-retaliation

provisions, [the anti-retaliation provision of the FHA] provides

protections not because of who people are, but because of what

they do.”71

But how should the history of hostile environment sexual

harassment law under Title VII influence the judge trying a par-

allel case under the FHA? Chief Judge Wood considered Title VII

relevant in thinking about when harassment is severe or perva-

sive enough and especially in concluding that the defendant need

not act with discriminatory animus.72 “The FHA followed Title VII

by four years. St. Andrew provides no reason why the FHA re-

quires in all instances that the defendant acted with discrimina-

tory animus when an identically worded statute has not been read

in such a matter. As a textual matter, we see none.”73 However,

Chief Judge Wood refrained from “reflexively adopting the Ti-

tle VII standard.”74 A further “search for comparable situations”

69 Wetzel, 901 F3d at 865 (citations omitted) (first, third, and fourth alterations in

original).

70 Id at 868. Recall that after Wetzel complained, management “restricted her access

to facilities and common spaces, downgraded her dining seat, halted her cleaning services,

and attempted to build a case for her eviction.” Id at 867. See also text accompanying

notes 9–11.

71 Id at 868.

72 She did not actually cite Carr. That is my contribution, since it is from the Seventh

Circuit; but she didn’t need to. There were plenty of cases she could have used to make

her points.

73 Wetzel, 901 F3d at 863 (citations omitted).

74 Id.

2450 The University of Chicago Law Review [87:2437

led her to Title IX, where similar standards are in play.75 As for

the FHA itself, it creates a statutory duty not to discriminate, and

the areas in which most of the discrimination occurred were the

public areas, over which the landlord has responsibility. After all,

“the protections afforded by the Fair Housing Act do not evapo-

rate once a person takes possession of her house, condominium,

or apartment.”76 Does the FHA cover the particular type of dis-

crimination Wetzel suffered? Yes, because it prohibits “discrimi-

natory harassment that unreasonably interferes with the use and

enjoyment of a home—by another name, a hostile housing envi-

ronment.”77 A hostile housing environment claim requires a

plaintiff to show

(1) that she endured unwelcome harassment based on a pro-

tected characteristic; (2) the harassment was severe or per-

vasive enough to interfere with the terms, conditions, or priv-

ileges of her residency, or in the provision of services or

facilities; and (3) that there is a basis for imputing liability to

the defendant.78

The isomorphism between Title VII and the FHA can be sup-

ported from within the text of the FHA.

To show the second requirement, Chief Judge Wood returned

to Wetzel’s capabilities (though without using that word). She

wasn’t just displeased, she was disabled. She couldn’t eat the

meals she had paid for, she couldn’t use the lobby or other com-

mon spaces, and she couldn’t use the laundry room.79 Some of

these involved explicit violations of the Tenant’s Agreement, and

all were significant diminutions of Wetzel’s opportunities to use

her rental.

The district court’s dismissal of Wetzel’s complaint was re-

versed, and the case was remanded for further proceedings.

V. JUDGES AND PHILOSOPHERS

Judge Wood reached a result that is similar to what someone

using the CA as a method would say. Of course she didn’t read

into the case the full normative framework of the CA: she used

75 Id at 863–64.

76 Id at 861.

77 Wetzel, 901 F3d at 861. Chief Judge Wood supported this claim by analysis of

§§ 3604 and 3617 of the FHA. See id.

78 Id at 861–62.

79 Id at 861.

2020] Harassment and Capabilities 2451

the normative materials that the relevant statutes gave her. And

she did something the philosopher would not know how to do

without a lot of further training: she used the facts and the law

in an astute and reasonable manner, building on precedent, look-

ing closely at the language of the statute, and consulting other

relevant statutes that propose similar frameworks. This is legal,

not philosophical, thinking, and she would have reasoned well

had she reasoned purely in the manner of the philosopher. Here,

as often, the common law provides continuity and solidity because

of its way of combining reliance on precedent with openness to

extension in the light of new cases.80

Why, then, do we need the CA at all? What does it bring to

law when judges already know what they are doing? One use for

the CA, and the primary one I had in mind, was to assist makers

of constitutions—or indeed framers of statutes—to think well

about which human capabilities might be in need of protection.

That use is not at issue here, though perhaps it was in Hively,

when discrimination on grounds of sexual orientation was held to

be a type of sex discrimination. Another use for the CA, however,

is as a method of judging, one that focuses on people and what

they can be and do, and avoids the type of distanced formalism

represented by Professor Wechsler’s call for “neutral principles,”

since the Wechslerian standpoint looks at human lives from such

a lofty difference that salient inequalities in what people are able

to do and be cannot be seen. This use for the CA is amply repre-

sented in our entire legal tradition of thinking about sex discrim-

ination, under both the Equal Protection Clause and Titles VII

and IX—and as we now learn from Judge Wood, under the FHA.

It was the main contention of my Foreword that judges should

think this way whenever inequality is potentially at issue.81

Yes, but obviously Judge Wood reached her conclusion in

Wetzel without turning to philosophy. Even more obviously,

Judge Posner reached his conclusion in Carr despite his well-

known hostility to philosophy.82 So why the philosopher? What

does Judge Wood bring to the table? Nothing, when people are

80 See Martha C. Nussbaum, Janus-Faced Law: A Philosophical Debate, in Saul Levmore

and Frank Fagan, eds, The Timing of Lawmaking 249, 274–77 (Edward Elgar, 2017).

81 See Nussbaum, 121 Harv L Rev at 64–67 (cited in note 34).

82 See, for example, Richard A. Posner, The Problematics of Moral and Legal Theory,

111 Harv L Rev 1637, 1646–49 (1998).

2452 The University of Chicago Law Review [87:2437

judging human situations with the requisite insight and complex-

ity. Philosophy is not required to prove that it changes every-

thing, and a philosophy that did should be suspect.

Instead, philosophy gives firmness to sound human judgment

when it is, as so often, prone to go astray in the direction of lofty

but obtuse formalism of the Wechsler variety: it supplies what we

might call a “countertheory” to the voices of lofty obtuseness in

our own heads. In my career, and in that of Professor Amartya

Sen, we have found those voices above all in formalist economics,

in which people of great mathematical sophistication but paltry

(often) human understanding create elegant structures that ig-

nore what people actually seek. That’s how the CA was born. Peo-

ple seeking fruitful lives could not get a hearing at the World

Bank, but a philosophical approach proffered by a Nobel Prize

Winner might. (A philosopher would never get a hearing all on

her own.) Similarly, the CA reminds us why it is important to ask

in a searching way what Marsha Wetzel was unable to do, and

why that matters.

But there are many sources of obtuseness in human heads,

and it’s useful to have an articulated theory that holds in place

some of the outcomes of sensible human judgment. Immanuel

Kant put it well: people know pretty well what good practical

judgment is, but they are “easily led astray” because we are im-

perfect, selfish, and power-grabbing beings.83 That’s basically

what I think: judges don’t need philosophy so long as they are

judging with sound human understanding. Judge Wood, one of

whose great distinctions is her sound human understanding,

probably doesn’t need it at all. But having it there to turn to, when

others wax obtuse, is not such a useless thing either.

83 Immanuel Kant, Grounding for the Metaphysics of Morals, in Ethical Philosophy:

The Complete Texts of Grounding for the Metaphysics of Morals and Metaphyisical Princi-

ples of Virtue 16 (Hackett 1983) (James W. Ellington, trans) (originally published 1785)

(Akademie 405) (the authoritative edition of Kant, to which it is usual to cite in order to

ensure comparability among editions).

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