Torres v. Wisconsin Dept. of Health and Social Services, 86-2161

• Decision Date: 17 October 1988
• Docket Number: No. 86-2161,86-2161
• Citation: 859 F.2d 1523
• Parties: 48 Fair Empl.Prac.Cas. 270, 110 A.L.R.Fed. 1, 48 Empl. Prac. Dec. P 38,392, 57 USLW 2285 Raymond J. TORRES, Franklin J. Utz, and Gerald F. Schmit, Plaintiffs-Appellees, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, et al., Defendants- Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1523

859 F.2d 1523

48 Fair Empl.Prac.Cas. 270, 110 A.L.R.Fed. 1,

48 Empl. Prac. Dec. P 38,392, 57 USLW 2285

Raymond J. TORRES, Franklin J. Utz, and Gerald F. Schmit Plaintiffs-Appellees, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, et al Defendants- Appellants.

No. 86-2161.

United States Court of Appeals Seventh Circuit.

Argued Dec. 9, 1986.

Decided Jan. 29, 1988.

Reheard En Banc May 26, 1988.

Decided Oct. 17, 1988.

Diane M. Nicks, Wisconsin Dept. of Justice, Madison, Wis., for defendants-appellants.

Dale L. English, Colwin Fortune, Colwin Pomeroy & English, Fond du Lac, Wis., for plaintiffs-appellees.

Before BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

Defendant Nona J. Switala is the superintendent of defendant Taycheedah Correctional Institution (TCI), the only women's maximum security prison in Wisconsin. TCI is operated by the Wisconsin Department of Health and Social Services (DHSS), also a defendant here. Ms. Switala, an experienced prison administrator, determined that the rehabilitation of TCI's inmates would be enhanced by employing only female correctional officers in TCI's living units. The plaintiffs Raymond Torres, Franklin Utz, and Gerald Schmit were reassigned to other positions at TCI, with no loss in pay, because of this plan. Unhappy with this reassignment, the plaintiffs brought this action alleging sex discrimination by the defendants in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. Secs. 2000e to 2000e-17. The defendants responded that sex was a bona fide occupational qualification (BFOQ), 42 U.S.C. Sec. 2000e-2(e)(1), for the positions formerly held by the plaintiffs. The district court determined that the defendants had not established a valid BFOQ because the defendants had not offered "objective evidence, either from empirical studies or otherwise," proving that the BFOQ would further inmate rehabilitation, and because prison security and inmate privacy were not materially advanced by the plan. We reverse and remand.

I Facts

TCI has three buildings for housing inmates. Each building has three residence floors, and the inmates live in single, double, or multiple occupancy rooms. The rooms are not cells with bars, but are more akin to college dormitory rooms. Each room has a solid door with a clear glass window at eye level that is approximately four inches by six inches. The rooms have one bed per inmate, a desk, chair, light, toilet, and wash basin. In two buildings, privacy curtains have been installed around the toilets. When an inmate is behind the curtain, only her feet are visible. At the time of trial, TCI had plans to install privacy curtains in the other residence building soon.

From 6 a.m. until 9 p.m., inmates may place "privacy cards" inside the door windows so that they can use the toilet or change their clothes without being observed. TCI's rules allow the privacy cards to be up for only ten minutes per day per inmate. In multiple inmate rooms, this means that the cards can be up permissibly for as much as thirty or forty minutes. However, the testimony offered at trial suggests that correctional officers are not able to keep careful track of the time that a privacy card has been in place, and that inmates sometimes leave their cards up for more than ten minutes per inmate. On one occasion, two inmates used their privacy card to facilitate an escape, and on another occasion an inmate beat up her roommate while the privacy card covered the window.

From 9 p.m. until 6 a.m., inmates may not place their privacy card on the inside of their window, but they may place their card outside the window all night long in order to prevent light from entering the room. Correctional officers then lift up the card for body counts and inspections. TCI's rules require that the officers conduct a body count each day at 7:30 a.m., 12:30 p.m., 5:30 p.m., 9:30 p.m., and once each hour between 10 p.m. and 6 a.m. Inmates know this schedule. TCI provides appropriate sleepwear for the inmates but they are not required to wear it. The guards are required to see the inmates' skin or hair during nighttime body counts.

Each floor of the residence buildings has a shower room. Inmates must sign up with their floor officer before taking a shower, and they are required to wear some sort of clothing when walking to the shower room. Testimony at trial suggested that guards normally do not enter the shower rooms when occupied. The doors to the shower rooms are solid, although some contain windows that have been rendered opaque. The shower rooms have one to three shower stalls, one to three toilets, and some have one or more bathtubs. The showers and toilets have privacy curtains or privacy doors. Only one inmate may occupy the shower room at a time, except that roommates may enter together. TCI allows each inmate fifteen minutes in the shower room.

The Wisconsin Administrative Code allows prison officials to perform four types of inmate searches. Wis.Admin.Code Sec. HSS 306.16 (1987). Correctional officers may perform pat searches at any time. During a pat search, inmates empty their pockets and the officer runs his or her hands over the inmates' entire body. Sec. HSS 306.16(a). The custom at TCI is that only female guards perform pat searches. The second type of allowable search is the strip search. Strip searches must be authorized by a supervisor and performed in private by an officer of the same sex, except during emergencies. Sec. HSS 306.16(b). The third type of search is the body cavity search. Body cavity searches are only performed by medical personnel in special circumstances. Sec. HSS 306.16(c). The fourth permissible search is a body content search, such as urinalysis or blood analysis. Sec. HSS 306.16(d). Under this regulation, body content searches are permitted only in extreme circumstances. In addition, correctional officers are expected to search occasionally inmates' rooms and the shower rooms when they are unoccupied.

Ms. Switala became superintendent of TCI in 1978. She previously had worked for three years as treatment director at TCI and for eight years as a probation and parole agent with the Wisconsin Division of Corrections. Ms. Switala, her superiors at the DHSS, and her personnel at TCI, soon began discussions regarding TCI's staffing needs. It ultimately was decided, principally by Ms. Switala, that certain positions at TCI should be staffed only by female correctional officers. It is clear from Ms. Switala's testimony at trial that the principal reason for this decision was her concern for inmate rehabilitation and security. TCI's administrators then advised all correctional officers in 1980 that a BFOQ program would be implemented gradually in the next two years.

TCI has three different ranks for its correctional officers. The lowest position is a correctional officer 1 (CO-1), followed by correctional officer 2 (CO-2) and correctional officer 3 (CO-3). The CO-3 in charge of a living unit is a "sergeant." The positions to be affected by the BFOQ plan were nineteen of the twenty-seven correctional officer positions in the living units, including all of the CO-3 posts in the living units. As a result of the plan, only three CO-3 positions at TCI would be open to men. The three plaintiffs, Mr. Torres, Mr. Utz, and Mr. Schmit, were all CO-3's prior to implementation of the BFOQ plan. Because of the limited number of available CO-3 positions, the three plaintiffs were required to accept CO-2 positions, although this demotion resulted in no loss of pay. The plaintiffs presently work under female CO-3's who have less seniority and experience.

II The District Court Opinion

The district court first determined that the BFOQ is a narrow exception to Title VII's prohibition of discrimination in employment. The court noted that "administrative convenience is insufficient to justify a BFOQ exception," and that discrimination based on sex is permissible only " 'when the essence of the business operation would be undermined.' " Torres v. Wisconsin Dep't of Health and Social Servs., 639 F.Supp. 271, 277 (E.D.Wis.1986) (quoting Diaz v. Pan Am. World Airways, 442 F.2d 385, 388 (5th Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971)). The burden of establishing a BFOQ is a "heavy one," according to the court, and is "justified only in rare, appropriate circumstances." Id. at 278.

The court then analyzed the BFOQ under each of the defendants' proposed justifications: security, rehabilitation, and inmate privacy. Regarding security, the court found that male correctional officers had filled all of the BFOQ positions from 1975 until 1982 "without any contention that TCI suffered from a lack of security." Id. Moreover, the court noted that TCI continued to allow inmates to use privacy cards even after the BFOQ program had been installed, thus rebutting the argument that the presence of male guards reduced observation of the inmates. Although the court acknowledged that staffing problems at TCI might have been reduced by the BFOQ, since all guards then could perform all tasks, the court found that this justification merely constituted administrative convenience and not a genuine justification for sex discrimination. Thus, since the defendants had not presented evidence of any decline in inmate escapes or violence as a result of the BFOQ, the court found "that defendants have failed to justify the Plan based on security reasons." Id. at 279.

The court next analyzed the BFOQ under the defendants' rehabilitation justification. The court acknowledged that the defendants had "presented various witnesses familiar with the field of corrections who testified in support of this theory." Id. at 280. However, the court said that the plaintiffs also had presented witnesses who testified that male guards can enhance...