Henry v. Milwaukee County
539 F.3d 573 (2008)
Rule of Law:
Under Title VII, an employer's policy that discriminates based on sex is only permissible as a bona fide occupational qualification (BFOQ) if the employer proves the policy is reasonably necessary to the essence of its business operation and demonstrates that no reasonable, less discriminatory alternatives exist.
Facts:
- Ersol Henry and Terri Lewis were female Juvenile Corrections Officers (JCOs) at the Milwaukee County Juvenile Detention Center (JDC).
- In 1997, JDC Superintendent Thomas Wanta implemented a policy requiring each juvenile housing unit ('pod') to be staffed at all times by at least one JCO of the same sex as the detainees.
- The JDC housed far more male juveniles than female juveniles, with six male pods and only one female pod.
- During the night shift, when only one JCO staffed each pod, that officer was required to be the same sex as the juveniles in the pod.
- This policy significantly reduced the number of available overtime shifts for female JCOs, as the desirable, premium-pay night shifts were predominantly in male pods.
- As a result of the policy, Henry and Lewis, who were senior employees, lost substantial overtime income, which was instead given to male JCOs with less seniority.
Procedural Posture:
- Ersol Henry and Terri Lewis sued Milwaukee County in the United States District Court for the Eastern District of Wisconsin, alleging sex discrimination in violation of Title VII.
- Milwaukee County asserted that its sex-based staffing policy was a bona fide occupational qualification (BFOQ).
- After a bench trial, the district court entered judgment for Milwaukee County, concluding that the policy was a valid BFOQ.
- Henry and Lewis, as appellants, appealed the district court's judgment to the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Does a juvenile detention center's policy requiring night-shift correctional officers to be the same sex as the inmates violate Title VII's prohibition on sex discrimination when the employer fails to prove the policy is reasonably necessary for security, privacy, or rehabilitation, and has not explored less discriminatory alternatives?
Opinions:
Majority - Ripple, J.
Yes, the policy violates Title VII because sex is not a bona fide occupational qualification (BFOQ) under these circumstances. The BFOQ is an extremely narrow exception, and Milwaukee County failed to meet its burden of proving that the same-sex staffing policy for the night shift was 'reasonably necessary' for the normal operation of the facility. The County's justifications regarding security, privacy, and rehabilitation were not supported by the record. There was no evidence of prior sexual assaults to justify the security concern, the privacy rationale was undermined by allowing opposite-sex guards during daytime shifts when privacy interests were greater, and the county failed to show why a same-sex role model was necessary when juveniles were asleep. Furthermore, the County failed to investigate or consider less discriminatory alternatives to its blanket policy.
Concurring - Easterbrook, C.J.
Yes, the policy violates Title VII. The County's justification for the policy relies on stereotypes and 'folk wisdom' rather than the objective, verifiable proof required to establish a BFOQ. Assertions that same-sex guards serve as better role models are unsubstantiated by empirical data, much like similar racial arguments that have been rejected by courts. After decades of opportunity to conduct studies and gather evidence on staffing policies, employers can no longer substitute 'cheap talk and unverifiable assertions of professional experience' for the hard evidence required to justify sex discrimination under Title VII.
Analysis:
This case reinforces the exceptionally high standard for establishing a bona fide occupational qualification (BFOQ) defense under Title VII. It clarifies that an employer's professional judgment or good-faith belief is insufficient; the defense requires objective evidence that the discriminatory policy is 'reasonably necessary,' not merely helpful, to the essence of the business. The decision places a heavy burden on employers, particularly in correctional settings, to explore and rule out less discriminatory alternatives before implementing sex-based staffing rules. This holding makes it significantly more difficult for employers to justify sex-based employment restrictions based on generalized concerns for privacy, safety, or rehabilitation without strong, specific evidence tied to the particular job functions at issue.
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