Raymond J. Torres, Franklin J. Utz, and Gerald F. Schmit v. Wisconsin Department of Health & Social Services, Defendants

RIPPLE, Circuit Judge,

dissenting.

The majority emphasizes the characterization of this case that permits it to affirm the district court most easily. When viewed solely as a conflict between the plaintiffs’ rights under Title VII and the inmates’ constitutional right to privacy, affirming the district court becomes a relatively straightforward matter. An inmate’s constitutional rights to privacy are necessarily limited and an employee’s rights under Title VII are statutorily broad.

There is, however, another consideration, deemphasized by the majority, that makes this case far more difficult and, in my view, renders erroneous the majority’s disposition. This case is much more than a conflict between the rights of inmates and those of their guards. It also presents a serious conflict between the employees’ important rights under Title VII and the important right of a prison administrator to seek new solutions to a grave problem that, up to now, has defied solution.

A key issue at trial was the defendants’ contention that male guards in a female prison unavoidably hamper the state’s efforts at rehabilitating the inmates. 1 The record indicates that at least 60 percent of the prisoners at TCI had been physically and sexually abused in their lives by males. For that reason, an experienced and well-educated prison superintendent made a calculated and reasoned decision that using female guards might help the prisoners overcome the negative self-image that re-suited from such abuse. Regardless of the precautions taken to prevent the male guards from invading the women inmates’ privacy, the administrator believed that rehabilitation efforts were thwarted by the male guards’ mere presence. At trial, she testified:

A good many — about 60 percent of our population comes from abusive backgrounds, either ... at the hands of their parents or spouse or boyfriend or whatever[.] [Tjhey come into the institution and they have told me of their fear of assault, their fear of physical harm from inmates, and I believe that if a woman is afraid, that is going to take over predominantly her energy. The energy she has to invest in herself is going to be diminished by those concerns [and] by [not] being able to assure her that in her living space, men will not be intruding on her private life.

[W]omen, as a rule, when they come in, they have a history of being very influenced, if not dominated by men in their lives and one of our major goals is to teach them ... self-respect and ... dignity[,] [and that they] have the capability of making their own decisions and living their lives based on their own perceptions of what they want and what their options are. And [if] we establish atmospheres where men are playing the primary dominant force, which is somewhat natural in a prison anyway, in terms of staffing, or power or authority over inmates, we were to perpetuate that, that’s just going to further compound what she’s lived with in the past and she will probably defer to the male and that’s not something we want her to do.

*956 Tr. IX at 39, 43-44. The district court dismissed this purpose because the defendants failed to show “objective evidence, either from empirical studies or otherwise, displaying the validity of their theory,” 639 F.Supp. at 280. The majority agrees. It thus concludes that the defendants did not meet their “heavy burden” under the “very narrow bfoq exception to Title VII.”

I have no difficulty accepting the majority’s formulation of the standard for finding a bfoq. The standard is indeed “extremely narrow,” Dothard v. Rawlinson, 433 U.S. 321, 334 , 97 S.Ct. 2720, 2729 , 53 L.Ed.2d 786 (1977), requiring proof of “business necessity.” Id. at 332 n. 15, 97 S.Ct. at 2728 n. 15. However, by requiring objective evidence and empirical studies, the majority has placed on these defendants an unreasonable burden. The Supreme Court has repeatedly recognized the complexity of the problems facing those responsible for managing our penal system. See, e.g., Rhodes v. Chapman, 452 U.S. 337, 352 , 101 S.Ct. 2372 , 2402, 69 L.Ed.2d 59 (1981); Bell v. Wolfish, 441 U.S. 520, 547-48 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979); Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 127-29 , 97 S.Ct. 2532, 2538-40 , 53 L.Ed.2d 629 (1977); Procunier v. Martinez, 416 U.S. 396 , 94 S.Ct. 1800 , 40 L.Ed.2d 224 (1974). In Procunier , the Court said:

Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by de-cree____ Judicial recognition of that fact reflects no more than a healthy sense of realism.

Id. at 404-05 , 94 S.Ct. at 1807 (emphasis added). The difficulties of prison administration identified by the Supreme Court are even more perplexing in the context of this case because it involves a female penitentiary. The problems of female penitentiaries are unique, and society is only now awakening to their special circumstances. Between 1940 and 1970, the number of female prisoners in federal and state penitentiaries was relatively constant at about 6,000 inmates. U.S. Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 399 (1986). But from 1970 to 1985 the number of female prisoners more than quadrupled, going from 5,635 inmates to 23,091 inmates. U.S. Department of Commerce, Bureau of the Census, Statistical Abstract of the United States 188 (1977); U.S. Department of Commerce, Bureau of the Census, Statistical Abstract of the United States 174 (1987). Between 1980 and 1985 alone, the number of female inmates increased from 13,420 to 23,091. Id. These increases no doubt have significantly affected conditions in female penitentiaries. Not only do we not know the answers to the problems of a female prison, but we do not even know all the questions. Requiring the superintendent of a female prison working under these conditions to provide objective proof that male guards retard the inmates’ rehabilitation is asking the impossible; research into the problems of female prisons is simply too immature to expect so much.

The majority concludes that a footnote in Dothard v. Rawlinson, 433 U.S. at 331-32 n. 15, 97 S.Ct. at 2728 n. 15, means that the degree of scrutiny applied in this case can be no different than the scrutiny applied in a more routine bfoq case. There, the defendants had argued that the court should apply a deferential standard of review to height and weight requirements for prison guards because the requirements had been imposed by state statute. In the Dothard footnote, the Court dismissed this argument, noting that “Congress expressly indicated the intent that the same Title VII principles be applied to governmental and private employers alike.” Id. I have no disagreement with the majority’s interpretation of Dothard . Private enterprise and public enterprise should be treated the same under Title VII. But this does not prohibit us from recognizing that the unique nature of an enterprise, public or private, may justify gender-based distinctions that would not be permissible in other contexts. See Dothard, 433 U.S. at 334 , 97 S.Ct. at 2729 (holding that the unique atmosphere of the Alabama state prisons justified a prohibition on female guards that might not have been justified elsewhere). Thus, there is no reason for the majority to overlook the vast body of Supreme Court precedent emphasizing that prisons present unique management situations. We should recognize that the job of the prison admin *957 istrator is to find a solution to a problem that others before have not found. Of necessity, the prison administrator is required to experiment and innovate. To forbid a prison administrator from seeking new solutions to a riddle that has baffled society for so long is to prevent the administrator from doing what is necessary to fulfill the very “essence” of her “business.” Diaz v. Pan American 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). So viewed, the defendants in this case have met their burden for establishing a bfoq. They have established a “business necessity” for the practice, Dothard, 433 U.S. at 332 n. 15, 97 S.Ct. at 2728 n. 15; they have to try new approaches.

Today, the majority sends a message that gender-based solutions to prison dilemmas are out-of-bounds, no matter how reasonable the proposal, unless the proposal is supported by objective, empirical evidence. This is indeed a Catch-22. How will any administrator of a female prison obtain any empirical data unless a court will permit a sustained, serious test?

I cannot imagine many cases in which the often-quoted dissent of Justice Brandeis in New State Ice Co. v. Liebmann, 285 U.S. 262, 310-11 , 52 S.Ct. 371, 386 , 76 L.Ed. 747 (1932), would be more appropriate. Pointing out that the “economic and social sciences are largely uncharted seas,” he said:

The discoveries in physical science, the triumphs in invention, attest the value of the process of trial and error. In large measure, these advances have been due to experimentation. In those fields experimentation has, for two centuries, been not only free but encouraged. Some people assert that our present plight is due, in part, to the limitations set by courts upon experimentation in the fields of social and economic science; and to the discouragement to which proposals for betterment there have been subjected otherwise. There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs____

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

Id. at 310-11 , 52 S.Ct. at 386 .

As a general proposition, we ought not permit employers to elude Title VII’s requirements by arguing that they were “experimenting.” Rare is the employment situation in which an employer could argue that gender-based distinctions are a “reasonably necessary” approach to innovation. But this case involves a female penitentiary, an institution facing new and unique problems that necessarily require it to navigate “uncharted seas.” It is hardly beyond the scope of reasonable experimentation for a prison administrator to conclude that there is a good chance that female prisoners, the majority of whom have been abused by males, might make better progress toward rehabilitation if they did not have to check in, clad only in a bath robe, with a male guard before taking a shower. It is hardly an unreasonable experiment to suggest that these women might adjust more rapidly if they did not have to sleep with the knowledge that male guards could peer into their sleeping rooms at will.

There is perhaps no more isolated minority in the United States today than female prisoners. In this case, Wisconsin has attempted to help these women become integrated with, and enjoy the full benefits of, society. The objective of Title VII is similar. Yet, the majority holds that this very statute effectively forbids Wisconsin from making such an effort. This is indeed a strange fulfillment of the Congressional intent.

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

ORDER

PER CURIAM.

On consideration of the petition for rehearing and suggestion for rehearing en *958 banc filed by counsel for defendants-appellants in the above-entitled cause, a vote of the active members of the Court was requested. A majority of the judges in regular active service voted to GRANT a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehearing and suggestion for rehearing en banc be, and the same is hereby, GRANTED.

IT IS FURTHER ORDERED that the judgment and opinion entered in this case on January 29, 1988 be, and are hereby, VACATED. This case will be reheard en banc at the convenience of the Court.

. The majority cites only one case dealing with a female penitentiary. Forts v. Ward, 621 F.2d 1210 (2d Cir.1980). Forts , however, is vastly different from this case. It involved a suit by prisoners against the prison administrators; the prisoners sought to enjoin the prison from assigning male guards to duties in the housing and hospital units of the prison. Thus, Forts involves the straight-forward conflict between the prisoners’ rights to privacy and the guards’ rights under Title VII. Rehabilitation was not an issue, and indeed, the prison administrators saw no need to remove the male guards.