Henry, Ersol L. v. Milwaukee County ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2534
E RSOL L. H ENRY and T ERRI J. L EWIS,
Plaintiffs-Appellants,
v.
M ILWAUKEE C OUNTY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 C 432—Rudolph T. Randa, Chief Judge.
____________
A RGUED F EBRUARY 12, 2008—D ECIDED A UGUST 20, 2008
____________
Before E ASTERBROOK, Chief Judge, and R IPPLE and
R OVNER, Circuit Judges.
R IPPLE, Circuit Judge. In 1997, Milwaukee County’s
Juvenile Detention Center instituted a policy that re-
quired each unit of the facility to be staffed at all times by
at least one officer of the same sex as the detainees
housed on that unit. Because there were far more male
units than female units at the facility, this policy had the
effect of reducing the number of shifts available for female
2 No. 07-2534
officers. Ersol Henry and Terri Lewis, both female officers
at the facility, brought this action in the United States
District Court for the Eastern District of Wisconsin, alleg-
ing sex discrimination and retaliation in violation of Title
VII, 42 U.S.C. § 2000e, et seq. After a bench trial, the district
court concluded that the gender-specific policy was based
on a bona fide occupational qualification and that no
other discrimination or retaliation had occurred; accord-
ingly, it entered judgment in favor of the County. For the
reasons set forth in this opinion, we reverse the judg-
ment of the district court.
I
BACKGROUND
A.
At the time relevant to this appeal, Ersol Henry and Terri
Lewis were employed as Juvenile Corrections Officers
(“JCOs”) at the Milwaukee County Juvenile Detention
Center (“JDC”). The JDC, part of the Wisconsin State
Juvenile Justice System, is a detention facility designed to
house temporarily juveniles awaiting juvenile court
proceedings.
The statutory mission of the Wisconsin juvenile justice
system includes, inter alia, punishment, deterrence, and
“the development of competency in the juvenile offender,
so that he or she is more capable of living productively and
responsibly in the community.” Wis. Stat. § 938.01(2)(c).
The mission statement of the JDC, in particular, states
that the facility is intended:
No. 07-2534 3
1. To serve the community by providing care for
young people who, because they represent a danger to
themselves or others, could not remain safely in the
community pending the outcome of a Juvenile Court
proceeding.
2. To serve the Juvenile Courts by maintaining close
supervision and observation of youngsters and en-
suring their appearance in court.
3. To serve the detained youth by providing the
best possible care in an atmosphere of fairness and
dignity so that their encounter with the Juvenile
Justice System can be a positive one.
Tr. Ex. 1021.
Most juveniles at the JDC are detained there for only a
short period of time. The average length of stay is ten
days, although for those juveniles awaiting their initial
court appearances, the average stay is approximately
three weeks. Juveniles often are detained for as little as one
day. Occasionally, a juvenile may be detained there for
as long as one year.
In 1991, Thomas Wanta was appointed superintendent
of the JDC. The facility that Mr. Wanta inherited in
1991 was a poorly-maintained, over-crowded detention
facility built for indirect (also known as linear) supervision.
The juveniles were housed in cells on a long hallway, and
JCOs walked the halls monitoring the inmates from the
outside without much interaction. Mr. Wanta believed
that this indirect form of supervision was a poor way
to care for and to rehabilitate juveniles; accordingly, he
4 No. 07-2534
advanced the idea of a new facility better adapted to a
method of supervision in which staff members and
inmates would have closer, more direct contact.
As a result of his efforts, a new, non-linear juvenile
detention facility was completed in April 1996. The new
JDC contains common rooms, classrooms and recreation
rooms where the juveniles spend the majority of their
daytime hours. At night, however, the juveniles are
confined to their living areas, which are assigned based
on their sex, age and classification.
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.1 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 juveniles are monitored at all times by JCOs. During
the first (morning) and second (evening) shifts, two JCOs
are assigned to supervise each pod. During the third
(night) shift, when the juveniles are locked inside their
cells and generally are asleep, only one JCO is assigned to
monitor each pod. In addition to the JCOs assigned to
pods, the JDC also has a male and a female “runner” on
1
One pod at the JDC was reserved for females. The other
six pods housed male juveniles.
No. 07-2534 5
duty at all times. The runner is a JCO who is responsible
for performing the intake procedures for newly-admitted
juveniles, including any necessary pat-downs and super-
vision of showering during the night hours.2 Another
staff member monitors the central control center at all
times.
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. Wanta 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.3
Prior to the move to the new facility, JCOs had been
assigned to shifts without regard to the sex of the officer.
2
Other than these newly-admitted juveniles, all regular
showering takes place on the second shift.
3
Although the juveniles generally are confined to their cells at
night, cell occupants can, and occasionally do, talk with JCOs
through their doors. Staff members are permitted to speak
with the juveniles through their doors at night; however, they
are not permitted to enter the individual cells at night except
in an emergency. If they do enter the cells at night, an alarm
will sound.
6 No. 07-2534
Mr. Wanta’s new policy, however, required that each pod
be staffed at all times by at least one JCO of the same sex
as the juveniles housed on the pod. During the day shifts,
when two JCOs staffed each pod, one of the two JCOs
could be of the opposite sex; however, during the night
shifts, when only one JCO staffed each pod, the sole JCO
on duty had to be of the same sex as the juveniles in the
pod. Because the JDC housed far more male juveniles than
female juveniles,4 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.
During the time of their employment as JCOs, Ms. Henry
and Ms. Lewis primarily worked one of the day shifts.
Prior to 1997, however, they each had earned a substantial
amount of additional income from voluntary overtime,
predominantly by working the night shift. According to
a collective bargaining agreement, voluntary overtime at
the JDC traditionally had been apportioned according
to seniority. Employees with the most seniority could
“put in” for overtime, and they would receive the first
opportunities to work their preferred shifts. Ms. Lewis
4
The ratio of male detainees to female detainees at the JDC was
between 4:1 and 6:1 during the relevant time period. Six of the
pods at the new JDC were reserved for males; one was
reserved for females.
No. 07-2534 7
and Ms. Henry were relatively senior employees, and
they often were able to work overtime at the old JDC.
After Mr. Wanta instituted the same-sex pod policy,
however, far fewer women were allowed to work the third
shift because there were far fewer female pods than male
pods at the facility. As a result of the same-sex role
model/mentoring program, most of the available night
shifts with premium pay were reserved for male em-
ployees. Female officers like Ms. Henry and Ms. Lewis no
longer were able to get the same number of overtime
hours as they previously had received. Instead, male
employees with less seniority were allowed to work these
shifts. Consequently, Ms. Henry and Ms. Lewis received
significantly less compensation than they had received
prior to the institution of the same-sex role
model/mentoring program.5
B.
Prior to the institution of this policy, Ms. Henry and
Ms. Lewis each had filed an unrelated EEOC complaint
alleging harassment and discrimination in the work-
place. In October of 1997, they filed additional grievances
regarding the sex-specific requirements of the third shift.
5
At the time of trial, despite the efforts of Mr. Wanta, the same-
sex overtime policy was not being followed strictly at the JDC.
On the advice of counsel, the JDC began allowing females to
work in male pods during the third shift, so long as they kept
the doors between the pods open. Tr. at 659.
8 No. 07-2534
The plaintiffs allege that they subsequently were treated
even more negatively than they had been treated before
they filed these complaints.
Ms. Henry testified at trial that her Head of Shift, Bobby
Bell, became aggressive and threatening toward her after
she began objecting to the JDC’s sex-based shift assign-
ments and to other instances of alleged discrimination.
She also stated that she once was removed from the
voluntary overtime list for being tardy by just one
minute and that she was criticized informally by man-
agement for minor things such as eating a sandwich and
wearing a sweater at work. She testified that other em-
ployees were not disciplined or criticized for such minor
infractions. She also noted that her timecard had been
written on in red ink, which she found embarrassing, and
that occasionally her timecards had been missing alto-
gether—an unusual occurrence.
Ms. Lewis testified that, after filing her EEOC charges,
her doctor’s notes were no longer accepted without
question for sick leave purposes. Both plaintiffs stated
that their managers called them very early in the mornings
on weekends and on vacation days when the managers
knew that they would be unable to work. They also
asserted that, despite repeated requests, they no longer
were assigned to work together or to work at the “easier”
JCO positions which they preferred. Finally, they testified
that they were referred to as “troublemakers” and other
derogatory terms by their managers and fellow JCOs.
Ultimately, Ms. Lewis and Ms. Henry decided to take
positions in different departments because of this alleged
No. 07-2534 9
harassment. Although their hourly pay rate was greater
in these positions than their hourly rate had been while
working as JCOs, their total income was less because
they were unable to get overtime pay in these positions.
C.
Ms. Henry and Ms. Lewis brought this action in the
district court. They alleged that, in violation of Title VII,
they had been denied overtime assignments on the third
shift at the JDC because of their sex. They also alleged
that they were subjected to a variety of other indignities
in the workplace on account of their sex and that the
defendants had retaliated against them for filing com-
plaints of discrimination.
Before the district court, the County denied that
Ms. Henry and Ms. Lewis had experienced any harass-
ment on account of their sex or in retaliation for their
EEOC charges. The County admitted that it had assigned
positions on the third shift based on the employees’ sex;
however, it asserted as a defense that its sex-based classifi-
cations were a bona fide occupational qualification
(“BFOQ”) permissible under 42 U.S.C. § 2000e-2(e). It
based this defense 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.
After a three-day bench trial, the district court con-
cluded that the same-sex staffing policy on the third shift
10 No. 07-2534
was a BFOQ. It found that “[t]he essence of the JDC’s
business is to ensure and promote the care, rehabilitation,
safety and security of the juveniles entrusted to its care.”
R.60 at 11. Based on Mr. Wanta’s testimony, it then con-
cluded that “same gender role modeling furthers the
twin goals of rehabilitation and security in the juvenile
detention setting,” id. at 4, and that “[s]ame gender shift
assignments serve to protect the privacy interests of the
juvenile detainees,” id. at 5. Finally, relying on general
studies that heterosexual assaults are statistically more
likely than homosexual assaults, the court found that
“[s]ame gender shift assignments also serve the goals of
risk management and security.” Id. In the district court’s
view, the “alternative to protecting against this risk . . . is
to hire an additional staff member for each pod on third
shift at an approximate cost of $750,000 per year.” Id.
Accordingly, it found that gender was a BFOQ for JCOs
working the third shift; therefore, the sex-based shift
assignments did not violate the anti-discrimination provi-
sions of Title VII.
Regarding the plaintiffs’ other claims, the district court
found that the allegedly harassing incidents did not
affect the terms and conditions of their employment
because they were “trivial inconveniences” that did “not
rise to the level of an adverse employment action.” Id. at 7.
It also found that the alleged retaliatory actions were not
materially adverse actions that would dissuade a rea-
sonable employee from engaging in protected activity.
Id. at 8. Finally, the district court found that the plain-
tiffs had failed to demonstrate any causal connection
between their gender or their EEOC charges and the
No. 07-2534 11
alleged harassment. Id. at 9-10. Accordingly, it denied
their claims of discrimination and retaliation under Title
VII.
The district court therefore entered judgment in favor
of the defendants on May 31, 2007. Ms. Henry and
Ms. Lewis timely appealed.
II
DISCUSSION
A.
We begin by setting forth the general principles that
must govern our decision. Title VII makes it unlawful
for an employer to “limit, segregate, or classify his em-
ployees” based on their sex in a way that would adversely
affect their employment. 42 U.S.C. § 2000e-2(a)(2). An
exception exists, however, when sex is a bona fide oc-
cupational qualification (“BFOQ”) that is “reasonably
necessary to the normal operation of that particular
business or enterprise.” Id. § 2000e-2(e); see also Int’l
Union, United Auto. Aerospace & Agric. Implement Workers
v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991); Torres v.
Wis. Dep’t of Health & Social Servs., 859 F.2d 1523, 1527
(7th Cir. 1988) (en banc).
The Supreme Court has cautioned that the BFOQ
defense is written narrowly and is to be read narrowly.
Int’l Union, 499 U.S. at 201. It has made clear that the
defense is “meant to be an extremely narrow exception to
the general prohibition of discrimination on the basis of
12 No. 07-2534
sex.” Dothard v. Rawlinson, 433 U.S. 321, 334 (1977). In
Dothard, the Court quoted approvingly the Fifth Circuit’s
formulation in Diaz v. Pan American World Airways, 442
F.2d 385, 388 (5th Cir. 1971), that “discrimination based
on sex is valid only when the essence of the business
operation would be undermined.” Dothard, 433 U.S. at
333; see also Torres, 859 F.2d at 1527.
Employers bear the burden of establishing the affirma-
tive defense that a particular qualification is a BFOQ. See
Meacham v. Knolls Atomic Power Lab., 128 S. Ct. 2395, 2400-
01 (2008); Everson v. Mich. Dep’t of Corr., 391 F.3d 737, 748
(6th Cir. 2004). Employers also bear the burden of proving
that they could not rearrange job responsibilities or
otherwise eliminate the clash between the business neces-
sities and the employment opportunities of female
officers. Torres v. Wis. Dept. of Health & Social Servs., 838
F.2d 944, 953 n.6 (7th Cir. 1988) (reheard and reversed on
other grounds in Torres, 859 F.2d 1523).6
B.
Before the district court, Milwaukee County relied on
a series of cases from this and other circuits that exa-
mined whether sex could be a BFOQ for officers in adult
6
See also Everson v. Mich. Dept. of Corr., 391 F.3d 737, 749 (6th
Cir. 2004); Reed v. County of Casey, 184 F.3d 597, 600 (6th Cir.
1999); Chambers v. Omaha Girls Club, Inc., 834 F.2d 697, 704 (8th
Cir. 1987); Edwards v. Dep’t of Corr., 615 F. Supp. 804, 809 (M.D.
Ala. 1985).
No. 07-2534 13
female correctional facilities. See Torres, 859 F.2d at 1532;
Everson, 391 F.3d at 747-60; Robino v. Iranon, 145 F.3d 1109,
1110-11 (9th Cir. 1998); Tharp v. Iowa Dep’t of Corr., 68 F.3d
223, 226 (8th Cir. 1995). In each of these cases, the court
held that the goals of security, safety, privacy and rehabili-
tation could, in some circumstances, justify sex-based
assignments in female prisons. Milwaukee County
submits that, like the sex-specific shift assignments in
adult female correctional facilities, the sex-specific assign-
ments at issue here should be upheld because they are
necessary to protect the juveniles’ safety and privacy
and to further the facility’s rehabilitative goals.
In Torres, we determined that the unique circum-
stances of the female prison at issue required prison
administrators to “innovate and experiment.” 859 F.2d at
1529. In the course of our decision, we noted that, because
prison administrators in general face unusually difficult
challenges in dealing with the “perplexing sociological
problems of how best to achieve the goals of the penal
function in the criminal justice system: to punish justly, to
deter future crime, and to return imprisoned persons to
society with an improved chance of being useful,
law-abiding citizens,” prison administrators’ decisions
must receive some degree of deference. Id. Accordingly,
although the decisions of prison officials are not
accorded as much deference in Title VII cases as they are
in constitutional cases, their decisions “are entitled to
substantial weight when they are the product of a reasoned
decision-making process, based on available information and
experience.” Id. at 1532 (emphasis added); see also Robino,
14 No. 07-2534
145 F.3d at 1110; Everson, 391 F.3d at 750. Milwaukee
County contends that, like in Torres, the administrators
of the JDC were entitled to substantial deference in their
decision to implement a sex-specific policy regarding
shift assignments. In its view, the goals and circumstances
of the juvenile detention context, when compared to the
female corrections context, are equally complex and
challenging.
We agree that the administrators of juvenile detention
facilities, like the administrators of female correctional
facilities, are entitled to substantial deference when
fashioning policies to further the goals of the facility. We
do not agree, however, that the discretion accorded to
these individuals in either context is effectively unlimited.
A defendant ultimately must introduce sufficient evi-
dence to prove that the administrator’s judgment—that
a particular sex classification is reasonably necessary to
the normal operation of the institution—is “the product of
a reasoned decision-making process, based on available
information and experience.” See Torres, 859 F.2d at 1532.
The district court concluded that the JDC’s policy of
assigning shifts according to an employee’s sex was based
on its administrator’s reasonable belief that the policy
would “promote” the goals of rehabilitation, security and
privacy. R.60 at 11. All of these functions are, as the dis-
trict court concluded, essential to the mission of the JDC.
However, Title VII’s standard is not satisfied simply
because a policy promotes an essential function of an
institution. Although sex-based assignments might be
helpful in pursuing these goals, in order to satisfy the anti-
No. 07-2534 15
discrimination strictures of Title VII, Milwaukee County
must show that the contested sex classifications are
“reasonably necessary.” See Torres, 859 F.2d at 1527 (emphasis
in original); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62,
86 (2000) (noting that the “reasonably necessary” standard
of the BFOQ defense is “a far cry from the rational
basis standard”).
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, Mil-
waukee 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. See Torres, 838 F.2d at 952 n.6;
Chambers v. Omaha Girls Club, Inc., 834 F.2d 697, 704 (8th
Cir. 1987). 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. We address each proffered justification
in turn.
The evidence in the record does not support the conclu-
sion that the juveniles’ safety or security, or the institu-
tion’s ability to manage risk effectively, was at all in
jeopardy because of the presence of opposite-sex JCOs on
the third shift. The district court correctly asserted that
heterosexual assaults and misconduct are statistically
more likely than homosexual attacks. The record estab-
16 No. 07-2534
lishes, however, that there has not been a single instance
of staff-on-inmate sexual assault at the JDC, on any shift,
by either sex; nor has there been a significant problem
with false accusations against the staff. Furthermore, other
safety precautions, such as door alarms and the presence
of supervisors, runners and video cameras, currently are
working to prevent actual and alleged security breaches.
Although Milwaukee County contends that a staff mem-
ber may be able to circumvent the alarm system in order
to enter a juvenile’s cell at night, the record contains
no evidence that this contingency has occurred or was
likely to occur at the JDC.
More fundamentally, Milwaukee County offered no
reasons why the numerous alternatives to same-sex
staffing suggested by the plaintiffs at trial, such as improv-
ing the alarm system, installing additional cameras, leaving
the doors open between the pods at night or increasing
the frequency of supervisor patrols, would not have
mitigated any concern. Notably, Mr. Wanta testified at
trial that he had not investigated the cost of any of these
options. He did assert that adding an additional staff
member on each of the pods during the third shift would
have been prohibitively costly; however, he did not
provide any data on this point, and such an augmentation
in personnel certainly was not the only option available
to minimize the already-minimal risk of staff-on-juvenile
sexual assault. The BFOQ defense extends only to those
policies that are “reasonably necessary to the normal
operation” of the institution, 42 U.S.C. 2000e-2(e)(1). It
does not excuse investigation of and reliance upon alterna-
No. 07-2534 17
tives that involve minor additional costs or inconve-
niences.7
Milwaukee County’s proffered privacy justification is
even more difficult to justify on the record before us. The
record affirmatively shows that the JDC allowed JCOs of
the opposite sex to monitor the pods during both of the
daytime shifts. It is undisputed that the vast majority of
the time that the juveniles were unclothed occurred during
these daytime shifts. Showering generally took place
during the second shift, when members of the opposite
sex were permitted to staff the pods. The only showering
that occurred on the third shift was monitored by one of
the runners who performed the intake procedures. The
juveniles were provided with pajamas, which they were
required to wear at night. They changed into this attire
on the second shift, and they changed out of it on the
first shift—again, while JCOs of the opposite sex were
permitted to view them. Although Milwaukee County
presented testimony that third-shift JCOs occasionally
viewed juveniles using the toilet, masturbating or other-
wise acting out sexually, it is undisputed that this situa-
tion occurred on the first and second shifts as well.
This situation is therefore very different from cases
such as Torres, 859 F.2d at 1530, and Everson, 391 F.3d at
753, which involved the presence of male guards in the
7
See, e.g., Chambers, 834 F.2d at 701 (noting that “[t]he employer
must demonstrate that there is a compelling need to maintain
that practice, and the practice cannot be justified by routine
business considerations” (internal quotation marks omitted)).
18 No. 07-2534
housing units of all-female prisons. In Torres, we held that
the superintendent reasonably made a “professional
judgment that giving women prisoners a living environ-
ment free from the presence of males in a position of
authority was necessary to foster the goal of rehabilita-
tion.” 859 F.2d at 1530. In Everson, the court determined
that, “given the endemic problem of sexual abuse in
Michigan’s female facilities” and other unique circum-
stances, 391 F.3d at 761, the presence of male guards, at
any time, in the housing units was a threat to “the
security of the prison, the safety of inmates and the pro-
tection of the privacy rights of inmates,” id. at 753. In
Everson and Torres, prison officials permitted no officers
of the opposite sex to guard the living units at any time
because the specific needs of the institutions and the
prisoners housed in those institutions reasonably re-
quired such a policy. The same-sex policy was aimed at a
specific condition and was tailored to address that
specific condition. The plans were quite clearly “the
product of a reasoned decision-making process, based on
available information and experience.” Torres, 859 F.2d at
1532. Here, by contrast, we are faced with the fact that the
JDC allowed JCOs of the opposite sex to guard the juve-
niles during those times when the privacy interests of the
juveniles were most in jeopardy. Under these circum-
stances, we cannot say that, with respect to privacy
concerns, the same-sex policy is the product of the same
sort of comprehensive professional decision-making as
exhibited in Torres and Everson. The inconsistencies in
implementation cast a significant doubt on whether the
policy is reasonably necessary to achieve the institution’s
No. 07-2534 19
goal of protecting the privacy interests of the juveniles.
Therefore, on this factor as well, the record reveals a
failure of proof on the part of Milwaukee County.
The County also contends that same-sex staffing on the
third shift is necessary to further the JDC’s mission of
rehabilitation. Contrary to the submission of the plain-
tiffs, we have no doubt that the County is correct in stating
that this goal is a very important goal of the institution.8
8
Ms. Henry and Ms. Lewis take issue with the district court’s
determination that rehabilitation is part of the “essence of the
business” of the JDC. They note that neither the Wisconsin
regulations nor the JDC’s own mission statement mentions the
word “rehabilitation.” They also assert that the juveniles are in
the JDC for very brief periods of time, and, unlike in a penal
institution, rehabilitation in a short-term detention facility is
a futile goal.
Based on its interpretation of the juvenile justice statute and
the JDC’s mission statement, as well as on testimony from Mr.
Wanta and others, the district court concluded that rehabilita-
tion indeed was part of the essence of the JDC’s business.
Wisconsin’s juvenile justice code requires the juvenile justice
system to take action directed at providing the best possible
care for the juveniles and at preventing future delinquent
behavior by developing their ability to lead productive and
responsible lives. Wis. Stat. § 938.01(2)(c), (f). Wisconsin courts
also have recognized the rehabilitative goals of the juvenile
justice system. See In re Hezzie R., 580 N.W.2d 660, 668 & n.4
(Wis. 1998). Mr. Wanta and other administrators testified that
the juveniles’ time at the JDC, generally a result of a crisis
situation, is often a valuable opportunity for intervention and
(continued...)
20 No. 07-2534
The record contains substantial testimony from
Mr. Wanta on this factor. He described the basis for his
determination that a role model/mentoring policy was
necessary to the JDC’s rehabilitative efforts. Tr. at 607-19,
634-35, 658-60. He noted that, in formulating the policy, he
had relied upon his own experience with juvenile correc-
tions, information learned from his attendance at various
seminars and committee meetings, his interviews with
the juveniles and staff at the JDC, consultations with
experts in the field and professional literature supporting
such programs.9 Each of these sources suggested that the
direct role modeling/mentoring form of supervision, rather
than the indirect form of supervision, was the best avail-
able method of providing care and rehabilitation to
juveniles in detention facilities. Mr. Wanta, in his profes-
sional judgment, concluded that institution of the direct
role model/mentoring form of supervision was necessary
to achieve the JDC’s mission of rehabilitation. The founda-
tion for his belief is well established in the record.
The conclusion that the effectiveness of these role
model/mentoring programs requires the presence of at
8
(...continued)
rehabilitation. Tr. at 623-24. This evidence supports the district
court’s finding that rehabilitation is part of the “essence” of
the JDC.
9
See, e.g., Office of Juvenile Justice and Delinquency Prevention
(“OJJDP”), Delinquency Prevention: Desktop Guide to Good Juvenile
Detention Practice (Roush ed., 1996), R.48, Ex. 1013 (praising
the virtues of direct supervision over indirect supervision).
No. 07-2534 21
least one staff member of the same sex as the juveniles in
each pod at all times, however, does not find the same
strong foundation in the record. Mr. Wanta expressed
his belief that same-sex role model/mentoring was more
effective than cross-gender programs. He testified that, in
formulating this view, he relied upon his own personal
experiences, as well as literature on mentoring programs,
which “indicate that gender mentoring improves the
chances of child behavior changes being positive.” Tr. at
635. He continued: “[A]ll the statistics and the research
that I have seen indicates that a male mentoring a male,
and a female mentoring a female, exponentially increases
the chance of success than would cross-gender . . .
mentoring.” Id.
In support of his belief, Mr. Wanta referenced a
report from the Office of Juvenile Justice and
Delinquency Prevention (“OJJDP”), Juvenile Mentoring
Programs: A Progress Review (Sept. 2000), R.48, Ex. 1022.
Although this publication was not available at the time
of his decision, he suggested that it supported his view
that same-sex role modeling was necessary for rehabilita-
tion. This report, however, is specific to one-on-one mentor
matching programs for at-risk youth. Moreover, its find-
ings regarding the effect of sex-specific assignments, even
in this circumstance, are inconclusive at best. See id. at 5.
Mr. Wanta did not explain how anecdotal evidence from
these after-school mentoring programs is relevant to the
vastly different juvenile detention setting. More impor-
tantly, it does not speak to the issue of whether, to achieve
success in mentoring, same-sex supervision on the third
shift, when the juveniles are isolated and likely asleep
22 No. 07-2534
in their cells, is reasonably necessary. The other publica-
tions admitted into evidence by the County appear to
add little to this precise question.1 0
We are well aware that the professionals who have
the great responsibility for running penal institutions
need to innovate and experiment if they are to succeed
in resolving the crisis in this important area of gover-
nance. Indeed, we already have recognized that the
inability to proffer solid empirical evidence in support of
a particular policy certainly is not fatal to a BFOQ defense.
See Torres, 859 F.2d at 1532. 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 pro-
gram reasonably necessitates the presence of a JCO of the
10
See OJJDP, Psychiatric Disorders of Youth in Detention (April
2006), R.48, Ex. 1017 (discussing the prevalence of juveniles with
mental disorders in juvenile detention facilities); U.S. Dep’t of
Justice, Bureau of Justice Statistics, Prison Rape Elimination Act of
2003: Sexual Violence Reported by Correctional Authorities 2004 (July
2005), R.48, Ex. 1015 (discussing nationwide statistics on sexual
assault in correctional facilities); OJJDP, Juvenile Mentoring
Programs: 1998 Report to Congress (Dec. 1998), R.48, Ex. 1023
(discussing mentor matching programs outside the detention
context, and noting that most programs use gender as a match-
ing criteria).
No. 07-2534 23
same sex at all times. Milwaukee County had the responsi-
bility 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 institu-
tion’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.
At trial, Mr. Wanta explained how the JCOs were to
act as role models and mentors at the JDC:
On a practical sense, I just wanted a staff member to be
a good, positive person. To display positive attitude.
To display respect towards the juvenile. Respect
towards your peers. Respect toward any individual
that came across their area. To model how to interact.
Whether interacting with that juvenile, so the other
juveniles who observe can see that interaction going
on and the positive outcomes to that type of interac-
tion. Interaction with your peers in a positive way. . . .
[T]he biggest focus was . . . for staff to demonstrate
proper behavior.
Tr. at 609. JCOs were not trained or expected to act as
counselors; if any serious counseling was necessary, the
JCOs were instructed to refer the juvenile to an on-site
nurse trained in mental health. Instead, the JCOs carried
out their role model/mentoring responsibilities by pro-
viding the juveniles with a constant model of proper
behavior in their interactions with others.
24 No. 07-2534
Given this description of the role of JCOs in the
mentoring program, we must conclude that the record does
not respond to the question of why a JCO of the same
sex is reasonably necessary during the night shift. Ac-
cording to the record, the opportunity for the JCO to
interact with the juveniles on the third shift is very mini-
mal. The third shift begins after the juveniles are locked
down for the night, and the JCOs on third shift were
instructed to encourage them to sleep. Although there
was testimony at trial that staff occasionally spoke with
juveniles through their doors at night, particularly when
they were ill or acting out and it was necessary to calm
them down, this interaction was kept to a minimum. There
is no evidence that the JCOs ever spoke with the juveniles
about confidential counseling matters at night. Indeed,
because the other juveniles in the pod would have been
able to hear any conversations that occurred, the JCOs
testified at trial that they were encouraged to avoid these
types of discussions on the third shift.
The County provided no reasons why opposite-sex
JCOs were incapable of appropriately interacting with
these juveniles to the extent necessary to provide a good
behavioral role model on the third shift. Mr. Wanta’s
assertion that “consistency” in the same-sex mentoring
program requires the presence of someone of the same
sex within each pod at all times is simply not justified by
the record. Furthermore, the County failed to provide
evidence that the many non-discriminatory alternatives
proffered by the plaintiffs would have been intolerable
here. The plaintiffs questioned Mr. Wanta about nu-
merous other possibilities for encouraging rehabilitation
No. 07-2534 25
through the availability of same-sex staff, such as hiring
more JCOs for the third shift, leaving the doors between
pods open or increasing the frequency of supervisor
rotations. They also noted that numerous other mecha-
nisms to encourage rehabilitation already were in place
at the facility, including educational programs, counselors,
guest speakers, community mentors and other programs
available to facilitate the JDC’s mission. The County
failed to explain why the presence of a same-sex JCO
within each pod during the hours that the juveniles were
sleeping was reasonably necessary to its rehabilitative
efforts.
Accordingly, we must conclude that the County failed
to meet its burden to prove that the sex-based classifica-
tion at issue here was reasonably necessary for the re-
habilitation, security or privacy functions of the JDC.
Therefore, Milwaukee’s BFOQ defense must fail. The JDC’s
third shift policy adversely affected the plaintiffs’ employ-
ment. It is undisputed that overtime pay had been a
significant and expected component of the plaintiffs’
compensation prior to the institution of the sex-based
policy. Not only did the majority of overtime work avail-
able occur on the third shift, but the third shift also
offered a fifty cent per hour pay premium. Accordingly,
the dramatic reduction in the opportunity for women to
work on the third shift constituted an adverse employ-
ment action. See Lewis v. City of Chicago, 496 F.3d 645, 653-
54 (7th Cir. 2007) (holding that the denial of the opportu-
nity for overtime pay, when that pay is a significant and
recurring part of an employee’s total earnings, can consti-
tute an adverse employment action). Because the JDC’s
26 No. 07-2534
third-shift policy adversely affected the plaintiffs’ em-
ployment opportunities, we must conclude that it is in
violation of Title VII.
C.
Finally, we turn to the plaintiffs’ workplace harassment
and retaliation claims. Both plaintiffs testified regarding
a number of incidents that occurred, both before and
after they had filed their EEOC charges, which they
believed were forms of harassment and retaliation. The
district court, however, held a bench trial and determined
that these incidents were merely trivial inconveniences
and isolated acts that did not rise to the level of harass-
ment necessary to establish a claim under either the
discrimination or retaliation provisions of Title VII. The
court also found that the plaintiffs did not present any
evidence of a causal connection between their sex or their
complaints and the alleged harassment. We review these
findings of fact for clear error. Fed. R. Civ. P. 52(a); Cerros,
288 F.3d at 1044.
Title VII prohibits sex discrimination in the terms and
conditions of employment. Jackson v. County of Racine,
474 F.3d 493, 499 (7th Cir. 2007). In order to establish a
Title VII claim based on workplace harassment, then, the
plaintiffs must prove that a reasonable person would
find the alleged harassment to be so severe or pervasive
as to create a hostile work environment, thus affecting the
terms and conditions of employment. Id.; Kriescher v. Fox
Hills Golf Resort & Conf. Ctr. FHR, Inc., 384 F.3d 912, 915
(7th Cir. 2004). Furthermore, they must show that there
No. 07-2534 27
is a “link between this treatment and [their] sex.” Jackson,
474 F.3d at 499.
The analysis regarding the plaintiffs’ retaliation claims
is similar. Title VII prohibits employers from discrim-
inating against employees who report or oppose practices
made unlawful under Title VII. 42 U.S.C. § 2000e-3(a). The
range of conduct prohibited under the anti-retaliation
provision is broader than its anti-discrimination provision,
however, because “the discriminatory acts proscribed by
Title VII’s anti-retaliation provision are not limited to
those that affect the terms and conditions of one’s em-
ployment.” Lewis, 496 F.3d at 655 (internal quotation
marks and citation omitted). Nevertheless, in order to
establish a claim for retaliation under Title VII, the plain-
tiffs must prove that the alleged employment actions were
materially adverse such that they would dissuade a
reasonable person from engaging in protected activity. Id.
Additionally, they must show a causal link between these
alleged adverse actions and their protected activity. Basith
v. Cook County, 241 F.3d 919, 933 (7th Cir. 2001).
After a review of the record, we conclude that the
district court did not err in its determination that the
alleged incidents did not rise to the level of harassment or
retaliation. The Supreme Court has emphasized the
necessity of separating “significant from trivial harms.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006). It further cautioned that “[a]n employee’s decision
to report discriminatory behavior cannot immunize that
employee from those petty slights or minor annoyances
that often take place at work.” Id. Title VII’s anti-retaliation
28 No. 07-2534
provision prohibits only those employer actions that are
likely to deter victims of discrimination from invoking the
Act’s remedial mechanisms. Id. We agree with the district
court that the alleged incidents, such as being told not
to wear sweaters or eat in front of the juveniles, unspeci-
fied “intimidation” and door slamming by the head of
shift, missing or marked up time-cards, occasional early
morning phone calls, and not being assigned to work
together on the same shift or in easier pods are the type
of petty slights and minor annoyances that generally will
not create such deterrence. Additionally, because these
incidents do not rise to the level of an adverse action
under the anti-retaliation provision of Title VII, they
certainly do not constitute workplace harassment suf-
ficient to establish a discrimination claim. See id. at 67.
Furthermore, the district court did not err when it
concluded that the plaintiffs had failed to prove a causal
link between their discrimination complaints and the
alleged harassment. The plaintiffs did not even attempt to
show that any of the alleged harassment was tied to their
sex. As for retaliation, the plaintiffs point only to “suspi-
cious timing” and an allegation that they were referred to
as “troublemakers” to suggest that the incidents of which
they complain were a result of retaliation for their pro-
tected activity. The district court here found that the
timing of the incidents in question was not suspicious;
the difficulties the plaintiffs had been having with their
managers had been ongoing well before they engaged in
No. 07-2534 29
any protected activity.1 1 The district court further found
that the managers’ alleged use of the term “troublemakers”
was not in reference to any of the plaintiff’s protected
activities. R.60 at 10. Instead, it found that the plaintiffs
in fact had been difficult employees, constantly lodging
trivial grievances and generally complaining whenever
superiors tried to correct their behavior; the term “trouble-
maker” had been used in reference to the plaintiffs’ general
behavior, not their EEOC complaints. Id. We cannot say
that this finding was clearly erroneous.
Conclusion
Accordingly, the judgment of the district court is af-
firmed in part and reversed in part. The case is remanded
to the district court for proceedings consistent with this
opinion. The parties shall bear their own costs in this
appeal.
A FFIRMED in part;
R EVERSED and R EMANDED in part
11
Furthermore, suspicious timing alone is not enough to
establish causation. See, e.g., Sauzek v. Exxon Coal USA, Inc., 202
F.3d 913, 918 (7th Cir. 2000) (“Speculation based on suspicious
timing alone, however, does not support a reasonable inference
of retaliation; instead, plaintiffs must produce facts which
somehow tie the adverse decision to the plaintiffs’ protected
actions.”); Culver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir.
2005) (noting that timing “will rarely be sufficient in and of
itself to create a triable issue”).
30 No. 07-2534
E ASTERBROOK, Chief Judge, concurring. The court’s opin-
ion applies Torres v. Wisconsin Department of Health &
Social Services, 859 F.2d 1523 (7th Cir. 1988) (en banc).
I dissented from that decision, because I thought that
the majority’s approach could allow an employer to
establish a bona fide occupational qualification on the
basis of wishful thinking rather than proof. 859 F.2d at
1535–38. After Torres the Supreme Court emphasized that
the BFOQ defense requires an employer to prove that
“objective, verifiable requirements [that only one sex can
fulfil] . . . concern job-related skills and aptitudes.” Automo-
bile Workers v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991).
See also Dothard v. Rawlinson, 433 U.S. 321 (1977). Cf.
Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995). But we need
not decide whether Torres requires a fresh look, because
the court’s opinion (which I join) shows that the em-
ployer’s justifications flunk the Torres standard.
Milwaukee County decided that at least one guard of
the same sex as the prisoners is necessary not only for
the prison as a whole (to perform body-cavity searches,
for example), but also for each pod in the prison. A pod
in Milwaukee’s Juvenile Detention Center may contain as
few as 11 inmates, and because women occupy only one
pod the County’s policy reduced women’s opportunities
for employment as guards. The County expresses concern
about sexual assaults but admits that no guard has ever
sexually assaulted any prisoner in its care—and data from
prisons elsewhere do not show that female guards are
likely to assault male prisoners sexually. That left the
County with stereotypes, such as the proposition that
No. 07-2534 31
guards of the same sex serve as mentors or role models
for the prisoners.
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.
Employers frequently assert that inmates (or students)
respond more favorably to guards (or teachers) of their
own sex or race. If this sort of justification had been
advanced for matching the race of the inmates and the
guards (or students and their teachers), courts would not
go along. See Wygant v. Jackson Board of Education, 476 U.S.
267 (1986). Cf. United States v. Virginia, 518 U.S. 515 (1996).
(Whether short boot-camp programs are exceptional for
this purpose, see Wittmer v. Peters, 87 F.3d 916 (7th Cir.
1996), is not important to a case that involves the long-
term operation of regular prisons.) Why then should
courts accept the same sort of “justification” for sex
discrimination?
The majority in Torres concluded that Title VII should
not be used to block experiments that might lead to the
sort of data that would establish a BFOQ. Twenty years
have passed since Torres, and Wisconsin’s prisons (like
those in other states) have had ample opportunity to try
different policies. Other states (and other prisons in
Wisconsin) allow people to guard the opposite sex both
32 No. 07-2534
day and night; data should not be hard to come by. But
instead 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 supersti-
tions. See Bechtel v. FCC, 10 F.3d 875 (D.C. Cir. 1993).
Wisconsin has not made anything of the 20 years’ breath-
ing space provided by Torres, and the time has passed
when cheap talk and unverifiable assertions of “profes-
sional experience” may substitute for the kind of evidence
that Johnson Controls and Dothard contemplate.
8-20-08