Henry v. Milwaukee County, No. 07-2534 (7th Cir. Aug. 20, 2008)

By Paul Mollica

A bench trial and appeal of a correctional guard case, turning on a Title VII “bona fide occupational qualification” (BFOQ) defense (42 U.S.C. § 2000e-2(e)), leads to a startling result: the Seventh Circuit reverses judgment for the employer and orders entry of judgment for plaintiffs instead.

Under the auspices of a new superintendent, Thomas Wanta, Milwaukee County built a juvenile detenion facility that replaced the prison-like setting of the old building with a softened, dormitory feel:

“The living areas at the new facility are organized into seven single-sex ‘pods.’ Each can accommodate between 11 and 22 juveniles of the same sex. Each pod consists of a number of individual cells, a control center desk from which the staff can monitor the cells and communicate with the pod via intercom, and a common area or ‘day room’ with tables, chairs and a television. The individual cells each contain a bed, a toilet, a desk and a small storage area. The entire cell, including the toilet, is visible from the outside through a window in the cell door.”

The superintendent also implemented a new shift policy for the juvenile correctional officers (JCOs):

“The advent of the new facility provided an opportunity for Mr. Wanta to shift the JDC’s method of supervision from an indirect model to a direct model and to encourage JCOs to have greater interaction with the juveniles they monitored. Accordingly, in 1997, Mr. Wanta instituted a new role model/mentoring program at the JDC. The staff, including the JCOs, received basic training in mentoring, role modeling and child development in order to equip them to interact more effectively with the juveniles. In furtherance of this program, Mr. Want also required that a staff member of the same sex be available on each pod at all times throughout the day and night to mentor the juveniles.”

The result, because of the predominance of male residents, was to deprive female guards of opportunities for night shifts:

“Mr. Wanta’s same-sex role model/mentoring policy afforded male JCOs more opportunities for work than those available to female JCOs. The night shift was particularly problematic. It was perceived as the easiest shift; those officers assigned to it received premium pay; and it afforded the most opportunities for overtime.”

Two female guards sued the county under Title VII for sex discrimination. The district court to whom the case was tried found that the county proved a BFOQ “largely on the testimony of the JDC’s superintendent, Mr. Wanta, who testified that, in his professional judgment, a same-sex role model/mentoring program would best facilitate the rehabilitative goals of the JDC.”  (The court also found no liability on harassment and retaliation claims tried along with the night-shift claim.)

The Seventh Circuit reversed the BFOQ finding and ordered judgment be entered for the female guards.  The panel acknowledged that the full court, in Torres v. Wisconsin Department of Health & Social Services, 859 F.2d 1523 (7th Cir. 1988) (en banc), conferred wide discretion on correctional facilities to assign same-sex guards to adult inmates, so long as it was “reasonably necessary” to do so.  But the panel found the present case distinguishable, because the county furnished no hard data showing a need to disadvantage female guards’ assignment to the night shift:

“We must conclude that Milwaukee County’s contention that sex-based assignments are reasonably necessary to achieve these goals, at least on the third shift, is not supported by the record before us. The employer, Milwaukee County, has the burden to demonstrate that it could not rearrange job responsibilities to eliminate or minimize the conflict between the inmates’ privacy, security and rehabilitation interests and the employees’ rights under Title VII. [Citations omitted.] Although reducing the number of opposite-sex staff on the pods may help to promote security, efficient risk management and privacy, Milwaukee County has failed to establish that its policy was reasonably necessary for these goals.”

In particular, there were zero incidents of staff-on-inmate sexual assault, and ample security measures to prevent untoward contact between guards and residents. And there were other measures that could have been taken (e.g., a better alarm system, installing addition al cameras, leaving the doors open between the pods at night or increasing the frequency of supervisor patrols), but that Mr. Want apparently never examined.  As for the privacy of the juveniles, such concerns were no less acute (and just as easily managed) on the day and night shifts. 

Finally, there was a scarcity of record evidence (beyond Mr. Wanta’s personal belief) that same-sex night-shift guards were important for rehabilitative/mentoring roles:

“Even if we defer to Mr. Wanta’s judgment that a mentoring program is important to the success of juvenile institutions such as the one he manages, and even if we defer to his judgment with respect to the need for same-sex mentoring of juveniles in such an environment, we still must be satisfied in the present litigation that these professional judgments require a rigid rule that such a same-sex mentoring program reasonably necessitates the presence of a JCO of the same sex at all times. Milwaukee County had the responsibility to introduce sufficient evidence in the record to support the conclusion that such same-sex presence at all times was reasonably necessary to meet the institution’s essential goals. Here, the record, although perhaps demonstrating the worth of a mentoring program and the usefulness of mentors of the same sex, does not present a sufficiently strong case with respect to the need for the presence of those mentors seven days a week and twenty-four hours a day.”

Chief Judge Easterbrook, concurring, had some harsh words for the mentoring theory:  “I call this a stereotype because it is based on folk wisdom. It could, in principle, be based on facts, such as proof that recidivism rates fall (or legitimate income after release rises) when a prison has more guards of the inmates’ sex. But the County conceded that it lacked such data when it adopted this policy, and neither expert witnesses nor any published studies supplied an empirical foundation for the policy at trial. . . . [I]nstead of producing data, the defendants in this case reiterated sexual stereotypes. A court that permits a state (or for that matter a federal agency) to make decisions influenced by intuitions about what the data ultimately will show must insist that the state (or agency) find out whether those intuitions are sound or simply superstitions.”