Petition for Writ of Certiorari — Everson v. Michigan Department of Corrections

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IN THE

Supreme Court of the Gnited States

ROSLYN EVERSON, RANDY FOX, STENNIS GEORGE,

RICHARD IDEMUDIA, and BRENDA L. SEBASTIAN,

and a class of all persons similarly situated,

Petitioners,

Vv.

STATE OF MICHIGAN DEPARTMENT OF CORRECTIONS and

BILL MARTIN, individually and in his official capacity as

Director of the Michigan Department of Corrections,

Respondents.

and

LINDA NUNN and TRACY NEAL,

Intervenor Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN R. RUNYAN *

ANDREW NICKELHOFF

MARSHALL J. WIDICK

SACHS WALDMAN, P.C.

1000 Farmer Street

Detroit, MI 48226

* Counsel of Record (313) 965-3464

FOE ne NNT ACRE MCC A TN ESSA RT TE ERNGIEBHS ENG very ae etn

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

QUESTIONS PRESENTED

I. Must an employer’s assertion of a bona fide occu-

pational qualification (BFOQ) under Title VII of the 1964

Civil Rights Act to justify its intentional gender dis-

crimination be supported with proof showing that all or

substantially all members of the excluded gender cannot

safely and efficiently perform the job, or may the employer

rely on the Age Discrimination in Employment Act’s more

lenient test of whether it is “impossible or highly impractical”

to determine on an individualized basis which employees are

not qualified?

II. In lieu of intentional job discrimination, must a cor-

rections system employ the least discriminatory approach that

balances the competing rights of employees and prisoners,

and is the trial court’s factfinding in reviewing such decisions

entitled to deference under F.R.C.P. 52(a)?

' PARTIES TO THE PROCEEDING

The caption of this case includes all parties to the pro-

ceeding in the courts below.

TABLE OF CONTENTS

CRF SSO GE © MAREE B Wi icccsccnstesoccscssccnctensscoteseteceiten i

PARTIBS TO THE PROCEEDING ...ccccccccsscesssccssscoesees ii

OE Ie GOs BUNS TEE cctcccncetcnincccserereczenencsininsbanhs

ETI wi cvenchanbinhvnsonsunentbascesnociensentebeessonhiiens

REASONS FOR GRANTING THE WRIT...................

I. THE DECISION BELOW ALTERS THE

LEGAL STANDARD UNDER TITLE VII

FOR PROVING THAT GENDER IS A

BONA FIDE OCCUPATIONAL QUALIFI-

CATION, IN CONFLICT WITH DECISIONS

OF THIS COURT AND OTHER CIRCUITS... 8

A. The Decision Below Conflicts With This

Court’s Decision In /nternational Union,

UAW v. Johnson Controls, Inc., And The

Decisions Of The Majority Of Circuit

Courts After Johnson Controls ..............0000+- 8

B. The Decision Below Also Conflicts With

The Settled Law That A Corrections Em-

ployer Must First Strive To Rearrange Job

Responsibilities In Order To Accommo-

date Both Corrections Officers’ Rights

And Prisoners’ Rights Before Resorting To

International Gender Discrimination ........... 12

EIEN ds aitiasslocekacchesesitnesstsaceciecbsecnensaceniibesaresess 17

TABLE OF CONTENTS—Continued

Page

I i a la i

REE SOT TIT 2a

MINE ii ere 3a

| A ee CE 48a

CASES

TABLE OF AUTHORITIES

Page

Anderson v. City of Bessemer, 470 U.S. 564

PEI sini icicicatacsdnariaseissaarslandarctabicdistadibemeedeibesine 15, 16

Carney v. Martin Luther Home, Inc., 824 F.2d

GES COC, BT Decherissnininkaitecistabsiciadisinsininidedas 9

Cutter v. Wilkinson, __ U.S. __ (Case No. 03-

9877, decided May 31, 2005) ..............ceeeeeeeeees 14

Dothard v. Rawlinson, 433 U.S. 321 (1977)...c.se-0000:. 4,10

Forts v. Ward, 621 F.2d 1210 (2nd Cir. 1980)...... 13, 14

Gunther v. Iowa State Men's Reformatory, 612

Me Ff ee, RR ee 13, 14

Hardin v. Stynchcomb, 691 F.2d 1364, (11th Cir.

IOI iscsi cc Sridipemecaeediekeibdineraiinuniinh canal i Mil eon 9, 13, 14

Harriss v. Pan Am. World Airways, Inc., 649

F die OFF COG IEE BED wisinicedccccntiennaccccnsirodintans 5,8

Healey v. Southwood Psychiatric Hosp., 78 F.3d

ee GC FO ee tise ecicctiseinien 9

International Union, UAW v. Johnson Controls,

Bae, MP UB. BGT Cae a iiiititiceincastchicnieaians 5,9, 10, 11

Pullman-Standard v. Swint, 456 U.S. 273 (1982).. 10

Robino v. Iranon, 145 F.3d 1109 (9th Cir. 1998).. 11, 14

Tharp v. lowa Dept. of Corrections, 68 F.3d 223

COE: SDS Piicssscettintsistanisiesinihinialeapisinibiniiaions

Torres v. Wisconsin Dept. of Health and Human

Services, 859 F.2d 1523 (7th Cir. 1988).......... 9,10, 11

United States v. Gregory, 818 F.2d 1114 (4th

Cir.), cert. denied, 484 U.S. 847 (1987)......... 12, 13, 14

Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228

NG AE WIPE i chinansinsetectiingmatnaicinidanaas isin des shcnias

Western Air Lines, Inc. v. Criswell, 472 U.S. 400

CTD Ds jiinisinidciinipépinantenikensiguiaaaashaghioieepinatie’ 4, 7, 8,9, 10

TABLE OF AUTHORITIES—Continued

STATUTES Page

M.C.L.A. §37.2202 ........000. a —

Ca eS 2. | SER ce eres TE 3

TRO CIR dis ccetdieattinticndans 2

Pett Vo ON ee Sea Tne 2

42. UBL, SRD I veiviceccesetttcisctidadiiuiaai 3, 4,6

IN THE

Supreme Court of the United States

No.

ROSLYN EVERSON, RANDY FOX, STENNIS GEORGE,

RICHARD IDEMUDIA, and BRENDA L. SEBASTIAN,

and a class of all persons similarly situated,

Petitioners,

STATE OF MICHIGAN DEPARTMENT OF CORRECTIONS and

BILL MARTIN, individually and in his official capacity as

Director of the Michigan Department of Corrections,

Respondents.

and

LINDA NUNN and TRACY NEAL,

Intervenor Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners Roslyn Everson, Randy Fox, Stennis George,

Richard Idemudia, and Brenda L. Sebastian respectfully pray

that a writ of certiorari issue to review the opinion and

judgment of the United States Court of Appeals for the Sixth

Circuit entered in the above-entitled proceeding on Decem-

ber 3, 2004.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Sixth Circuit is reported at 391 F.3d 737, and is reprinted in

the Appendix attached hereto at Pet. App. 3a. The United

States Court of Appeals for the Sixth Circuit’s order denying

the petitioners’ Petition for Hearing or Rehearing En Banc

issued on March 18, 2005, and is attached hereto at Pet. App.

la. The decision of the United States District Court for the

Eastern District of Michigan, dated July 11, 2002, is reported

at 222 F. Supp.2d 864 and is appended hereto as Appendix D,

at Pet. App. 48a. The final judgment of the District Court

issued on August 8, 2002.

JURISDICTION

The decision of the court of appeals was entered on

December 3, 2004. A timely Petition for Rehearing or

Rehearing En Banc was filed on December 16, 2004, and was

denied on March 18, 2005. The jurisdiction of this Court to

review the judgment of the court of appeals is invoked pur-

suant to 28 U.S.C. § 1254(1).

STATUTES AND RULE INVOLVED

Section 703(a) of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-2(a) (“Title VII”) provides:

It shall be an unlawful , ee practice for an

employer—

(1) to fail or refuse to hire or discharge any individual,

or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such individ-

ual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his ernployees or ap-

plicants for employment in any way, which would

deprive or otherwise adversely affect his status as an

employee, because of such individual's race, color,

religion, sex, or national origin.

42 U.S.C. § 2000e-2(e) reads in pertinent part:

Notwithstanding any other provision of this subchapter,

(1) it shall not be an unlawful employment practice for

an employer to hire and employ employees . . . on the

basis of his religion, sex, or national origin in those

certain instances where religion, sex, or national origin is

a bona fide occupational qualification reasonably

necessary to the normal operation of that particular

business or enterprise. . .

Section 202 of Michigan’s Elliott-Larsen Civil Rights Act

(“Elliott-Larsen”), M.C.L.A. 37.2202 provides in pertinent

part:

(1) An employer shall not do any of the following:

(b) Limit, segregate, or classify an employee or ap-

plicant for employment in a way which deprives or

tends to deprive the employee or applicant of an

employment opportunity, or otherwise adversely

affects the status of an employee or applicant because

of religion, race, color, national origin, age, sex,

height, weight, or marital status.

Section 208 of Elliott-Larsen, M.C.L.A. § 37.2208, provides

in pertinent part: :

A person subject to this article may apply to the

commission for an exemption on the basis that religion,

national origin, age, height, weight, or sex is a bona fide

occupational qualification reasonably necessary to the

normal operation of the business or enterprise.

Rule 52(a) of the Federal Rules of Civil Procedure provides

in pertinent part:

Findings of fact shall not be set aside unless clearly

erroneous, and due regard shall be given to the

opportunity of the trial court to judge the credibility of

the witnesses.

INTRODUCTION

This Petition presents the opportunity for the Court to

resolve an important unsettled question of employment dis-

crimination law. Because it is an exception that permits

employers to intentionally discriminate against their employ-

ees on the basis of sex, age, and other protected charac-

teristics, the_“bona-fide occupational qualification” (BFOQ)

defense contained in an.i-discrimination laws was intended to

be “extremely narrow” in scope. Dothard v. Rawlinson, 433

U.S. 321, 334 (1977). This Court has said that in order to fit

through the narrow BFOQ doorway opened in Title VII of the

Civil Rights Act of 1964, 29 U.S.C. § 2000e-2(e), an

employer must establish a factual basis for believing that all

or substantially all members of the excluded group would be

unable to perform their jobs safely and efficiently. Dothard,

supra at 333. However, this Court has approved a signifi-

cantly more lenient test in the context of age discrimination,

under which an employer can establish a BFOQ by proving

that some older workers—perhaps only a very small minor-

ity—possess a disqualifying characteristic—for example,

medical unfitness to safely handle the stress of an emer-

gency—and that it is “impossible or highly impractical” to

predict which older workers fall into that category. Western

Air Lines, Inc. v. Criswell, 472 U.S. 400, 414-416 (1985). In

other words, considerations unique to the aging process make

it permissible in some circumstances to use age as a proxy for

a trait that cannot be identified individually.

In this case the Sixth Circuit Court of Appeals transplanted

the more lenient BFOQ standard of the ADEA to a gender

discrimination claim under Title VII. Reversing a trial court

ruling based on extensive fact-finding, the court below

approved a BFOQ allowing the Michigan Department of

Corrections to exclude males on a systematic basis from

corrections officer positions in female inmate housing units.

The court of appeals effectively concluded that a permissible

BFOQ under Title VII exists where some unidentified male

officers—undoubtedly only a very small minority—possibly

could engage in sexual misconduct involving female pris-

oners, justifying the blanket exclusion of all males.

This Court appeared to have foreclosed application of the

more permissive ADEA “impossible or highly impractical”

standard in the context of sex discrimination claims under

Title VII, in International Union, UAW v. Johnson Controls,

Inc., 499 U.S. 187, 207 (1991) (“Johnson Controls argues that

it must exclude all fertile women because it is impossible to

tell which women will become pregnant while working with

lead. ... Johnson Controls has shown no ‘factual basis for

believing that all or substantially all women would be unable

to perform safely and efficiently the duties of the job

_ involved.” Even on this sparse record, it is apparent that

Johnson Controls is concerned about only a small minority of

women”). Yet the Sixth Circuit here, and perhaps one other

circuit, Harriss v. Pan Am. World Airways, Inc., 649 F.2d

670, 676 (9th Cir. 1981), have applied the ADEA’s more

permissive BFOQ standard to claims under Title VII. Other

courts have declined to do so.

The law should be clarified. While the employees ex-

cluded here are males, the Sixth Circuit’s decision will have

equal application to the claims of female employees. Allow-

ing employers to rely upon gender as a proxy for legitimate

job qualifications, simply because it would be difficult to deal

with women on an individualized basis, would open the door

to the very sex stereotyping that Title VII was designed

to eliminate.

STATEMENT OF THE CASE

This case arose from the decision of the Director of the

Michigan Department of Corrections (“MDOC”’) to engage in

wholesale, intentional gender discrimination by adopting a

“selective certification” plan that would restrict exclusively to

female officers approximately 250 correction and resident

officer positions in housing units at Michigan’s three correc-

tional facilities housing female prisoners. The Petitioners,

male and female officers whose jobs would have been

directly affected, filed suit claiming gender discrimination

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e et seg., Michigan’s Elliott-Larsen Civil Rights Act,

MCLA 37.2101, and the Equal Protection Clause.

The district court conducted a bench trial that spanned nine

days. Approximately 250 exhibits were entered into

evidence.' The trial judge had the opportunity to observe the

demeanor and assess the credibility of twenty-one witnesses,

including eleven expert witnesses. He personally toured the

three female prisons.

In a comprehensive sixty-nine page opinion detailing its

analysis of the voluminous evidentiary record, which is

reported at 222 F. Supp. 2d 864 (E.D. Mich. 2002), the

district court concluded that the MDOC’s plan violated

federal and state equal employment opportunity laws. Pet.

App. 48a. The district judge found that MDOC’s facially

' The testimony of the expert and other witnesses is reviewed at length

in the District Court's opinion. 222 F. Supp.: 2d at 880-885. Pet. App.

78a-88a. The documentary evidence presented by the parties included:

“MDOC reports and minutes of meetings, staffing reports, training and

reporting materials, layouts and photographs of housing units, inmate

population data, incident data relating to sexual misconduct and other

sanctionable conduct by corrections officers and other personnel, the

request to the DCS for selective certification and the responses, position

descriptions, court cases papers, expert witness reports, the collective

bargaining agreements with the MCO, affidavits, published papers,

curriculum vitae of the expert witnesses, narrative statements of direct

testimony of the expert witnesses, ACA Standards and a miscellany of

other papers relating to MDOC activities and management of prisons.”

222 F. Supp. 2d at 885. Pet. App. 89a. The District Judge also reviewed

a number of reports and studies obtained from his own research. Pet.

App. 89a, n. 32.

discriminatory plan would inflict adverse job consequences

on both male and female officers, and that the defendants had

failed to prove that gender was a bona fide occupational

qualification reasonably necessary to the positions at issue.

222 F. Supp. 2d at 868. Pet. App. 55a. The trial court

carefully weighed the trial testimony and the documentary

evidence to arrive at seven overall factual findings, based on

which it concluded that MDOC had failed to establish that

male officers were unable to perform safely and efficiently

the duties of the jobs at issue; or that the employment of

males would undermine the central mission of the MDOC; or

that there were no reasonable alternatives to gender dis-

crimination for ensuring security of the prisons and the

privacy of female prisoners. 222 F. Supp. 2d at 893. Pet.

App. 105a-108a. The district judge found that the MDOC

could accommodate security and other concerns by making

gender-specific task assignments without wholesale exclusion

of officers from certain positions based on their sex. 222

F. Supp. 2d at 868, 895, 896. Pet. App. 55a, 109a, 11 1a.’

On appeal, the majority of a divided panel of the Sixth

Circuit Court of Appeals read the trial record differently. The

Sixth Circuit re-analyzed the evidence to conclude that

factual support for a genuine bona fide occupational

qualification existed. The panel majority did so, however, by

importing a legal standard from the age discrimination

context set forth in Western Air Lines, Inc. v. Criswell, 472

? A group of female prisoners intervened as defendants in this action, a

group who had litigated against the Michigan Department of Corrections

and obtained a settlement agreement which called for numerous reforms

in Michigan’s female prisons, but which did not require gender-based job

assignments. Parallel litigation by the U.S. Department of Justice resulted

in similar reforms. (Pet. App. 60a-63a) As the district court observed,

those reforms had reduced the numbe: of allegations of improper conduct

against male officers from 57 in 1998, to 40 in 1999, and to 25 in 2000;

the sustained allegations dropped from 22 in 1998, to 3 in 1999, to 0 in

2000. Pet. App. 94a.

U.S. 400, 414 (1985)—applied only once by another circuit in

the gender-discrimination context—yet failed to remand to

the District Court for findings of fact under this new standard.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW ALTERS THE LEGAL

STANDARD UNDER TITLE VII FOR PROVING

THAT GENDER IS A BONA FIDE OCCU-

PATIONAL QUALIFICATION, IN CONFLICT

WITH DECISIONS OF THIS COURT AND

OTHER CIRCUITS.

_A. The Decision Below Conflicts With This

Court’s Decision In International Union, UAW

v. Johnson Controls, Inc., And The Decisions Of

The Majority Of Circuit Courts After Johnson

Controls.

The court below held that an employer may prove, as a

defense to intentional gender discrimination in a Title VII

case, that gender is a bona fide occupational qualification

(BFOQ) by showing that “it is impossible or highly imprac-

tical” to determine on an individualized basis the fitness for

employment of members of one gender. Pet. App. 20a-21a.

This standard for proving that gender is a bona fide occu-

pational qualification has been applied by one other jurisdic-

tion, the Ninth Circuit Court of Appeals. Harriss v. Pan Am.

World Airways, Inc., 649 F.2d 670, 676 (9th Cir. 1980).

The decision below is in conflict, however, with the deci-

sion of this Court in /nternational Union, UAW v. Johnson

Controls, Inc., 499 U.S. 187 (1991), and the decisions of the

Third, Fifth, Seventh, Eighth, and Eleventh Circuit Courts of

Appeals, which have upheld a more rigorous standard: an

employer must prove that gender is a bona fide occupational

qualification by showing a factual basis for believing that “all

or substantially all [members of one gender] would be unable

to perform safely and efficiently the duties of the job

involved.” Jd. at 207; Weeks v. S. Bell Tel. & Tel. Co., 408

F.2d 228, 235 (Sth Cir. 1969) (quoted in Johnson Controls,

supra at 207); Healey v. Southwood Psychiatric Hosp., 78

F.3d 128, 132 (3rd Cir. 1996); Torres v. Wisconsin Dept. of

Health and Human Services, 859 F.2d 1523, 1527, 1530-31

(7th Cir. 1988); Carney v. Martin Luther Home, Inc., 824

F.2d 643, 649 (8th Cir. 1987); Hardin v. Cn, 691

F.2d 1364, 1370 (11th Cir. 1982).°

In fact, in Johnson Controls, supra, this Court not only

used the “all or substantially all” standard for gender-based

BFOQ’s, but also rejected an employer’s BFOQ defense that

it was “impossible or highly impractical” to determine on an

individualized basis the fitness for employment of women in

certain jobs. Specifically at issue in Johnson Controls was

an employment policy that excluded all fertile women from

jobs entailing exposure to lead, which presented a risk to fe-

tuses. Explicitly citing the “impossible or highly impractical”

standard set forth in Western Air Lines, Inc. v. Criswell, 472

U.S. 400, 414 (1985) for BFOQ’s in the context of age

discrimination challenged under the Age Discrimination in

Employment Act (ADEA), the employer defended this policy

as a BFOQ on the grounds that “it would be ‘impossible or

highly impractical’ for Johnson Controls to restrict its policy

to those who actually will become pregnant.” (Johnson

Controls’ brief on the merits, p. 45, quoting Criswell) This

Court, however, rejected that argument and stated that the

employer failed to show a factual basis for believing that all

or substantially all women would be unable to perform safely

and efficiently the duties of the job. Johnson Controls, supra

> Although the court below initially disavowed reliance on the “impos-

sible or highly impractical” standard by asserting that “our decision does

not turn on the use of either standard” (Pet. App. 20a-21a, n. 15), the

disavowal was short-lived. The court went on to conclude that the

“impossible or highly impractical” standard “better suits the instant case”

and fashioned its analysis thereunder. (Pet. App. 33a)

at 207 (explicitly rejecting the employer’s argument that it

was necessary to “exclude ail fertile women” from jobs

entailing lead exposure because “‘it is impossible to tell which

women will become pregnant while working with lead”).

Despite this Court’s rejection of the Criswell standard in

the context of gender discrimination, the court below relied

upon the same case law—Western Air Lines, Inc. v. Criswell,

472 U.S. 400, 414 (1985)—for the same BFOQ defense—that

it was “impossible or highly impractical” to determine which

male corrections officers would breach their duties and

violate the asserted constitutional rights of female prisoners.

Pet. App. 20a-21a. Moreover, after overturning the Johnson

Controls BFOQ standard employed by the district court, the

court of appeals simply reversed rather than remanding for

factfinding under a different legal standard, contravening

Pullman-Standard v. Swint, 456 U.S. 273, 291-292 (1982)

(“[W]here findings are infirm because of an erroneous view

of the law, a remand is the proper course unless the record

permits only one resolution of the factual issue.”’)

In so doing, the court below impermissibly strayed from

this Court’s decision in Johnson Controls, supra, and from

other decisions involving the gender-based removal of cor-

rections officers from the housing units of prisoners of the

opposite gender. In Dothard v. Rowlinson, 433 U.S. 321, 333

(1977), this Court favorably quoted the “all or substantially

all” standard from Weeks, supra, where the record evidence

strongly supported the conclusion that the employment of

female corrections officers would jeopardize the safety of the

maximum security prisons for male inmates in Alabama. In

Torres v. Wisconsin Dept. of Health and Human Services,

supra, the Seventh Circuit Court of Appeals followed the

BFOQ standard employed by this Court in Johnson Controls,

supra, to conclude that the employer had shown a factual

basis for believing that all or substantially all males would be

unable to perform the duties of the job at issue, and thus

found that the employer had demonstrated a gender-based

BFOQ. 859 F.2d at 1530-31."

Here, however, the court below invoked a different stan-

dard to justify its reversal of the district court’s detailed

finding that the employer failed to show a factual basis for

believing that all or substantially all male officers could not

perform their jobs in the housing units safely and efficiently.

Applying the “impossible or highly impractical” standard

imported from the ADEA, the Sixth Circuit overstated this

Court’s general observation that the ADEA “tracks” Title

VII’s provisions, Johnson Controls, supra at 201, and

effectively fashioned an ad hoc approach to BFOQ inquiries

which fails to give guidance with a uniform standard. In

the words of the court below, the “impossible or highly

impractical” standard “better suits the instant case” (Pet. App.

33a); but the court did not explain why and did not offer any

legal compass to direct the trial courts and potential litigants

as to which standard would “better suit” a particular case in

the future.

The Sixth Circuit was wrong in holding that the ADEA’s

“impossible or highly impractical” BFOQ standard suits a

gender discrimination claim under Title VII. Just as Johnson

Controls’ concern about a small minority of women could not

justify excluding all women from battery-making jobs,

* Two other circuits have dismissed challenges by male officers who

were excluded from female prison settings on the basis of gender, but the

reason for the dismissals was that the plaintiffs failed to show adverse

employment consequences resulting from the exclusion. Robino v.

Iranon, 145 F.3d 1109, 1110 (9th Cir. 1998); Tharp v. lowa Dept. of

Corrections 68 F.3d 223, 225-226 (8th Cir. 1995). By contrast, in the

instant case, the district court specifically found adverse employment

consequences resulting from the defendants’ intentional gender discrim-

ination (Pet. App. 80a, 96a), a finding which the court of appeals did not

reverse (Pet. App. 18a, n. 13).

MDOC’s concern about a small minority of males cannot

justify excluding all. males from positions in the female

housing units. The Criswell BFOQ standard resulted from

considerations unique to the aging process, which have no

application where gender discrimination is concerned. In

light of latent physical or mental effects of aging that cannot

be detected, it may be reasonable in some circumstances to

rely on age as a proxy for screening out employees who may

be unable to safely or efficiently perform a job. The same

cannot be said for screening out all members of one sex.

Accepting the Criswell BFOQ standard to justify gender

discrimination will set employment rights back decades—

particularly for female workers.

Guidance from this Court is necessary to clarify the legal

standard applicable to determining whether gender can be a

bona fide occupational qualification, a standard now in doubt

because of the decision below.

B. The Decision Below Also Conflicts With The

Settled Law That A Corrections Employer

Must First Strive To Rearrange Job Respons-

ibilities In Order To Accommodate Both

Corrections Officers’ Rights And Prisoners’

Rights Before Resorting To Intentional Gender

Discrimination.

The interpretation of Title VII in the context of prisons has

required the federal courts to balance and reconcile a variety

of important interests. More specifically, the federal courts

have recognized that prisons must endeavor to arrange job

responsibilities in order to accommodate prisoners’ rights to

privacy and safety, and the Title VII rights of corrections

officers to be free from gender discrimination. United States

v. Gregory, 818 F.2d 1114, 1118 (4th Cir.) (“Before a de-

fendant prison can claim entitlement to the BFOQ exception

to Title VII contained in § 703(e), it must demonstrate why it

cannot reasonably rearrange job responsibilities within the

prison in order to minimize the clash between the privacy

interests of the inmates and the safety of the prison employees

on the one hand and the non-discrimination requirement of

Title VII on the other.”), cert. denied, 484 U.S. 847 (1987);

Hardin v. Stynchcomb, 691 F.2d 1364, 1374 (11th Cir. 1982)

(“Defendants . . . have failed to prove they cannot rearrange

job responsibilities so that female deputies assigned to male

sections of the jail will not have to perform duties that

impinge upon inmate privacy rights”); Forts v. Ward, 621 -

F.2d 1210, 1217 (2nd Cir. 1980) (“the remedy proposed by

the State will accord adequate protection to the privacy

interests of the inmates that will avoid any denial of the

guards’ rights to equal employment opportunities”); Gunther

v. Iowa State Men’s Reformatory, 612 F.2d 1079, 1086 (8th

Cir. 1980) (prison employer “must also demonstrate it could

not reasonably rearrange job responsibilities in a way to

minimize the clash between privacy interests of the inmates,

and the nondiscrimination principle of Title VII”).

The district court followed this line of cases to preserve the

rights of both corrections officers and prisoners. Based upon

his thorough analysis of the record, including the testimony of

several experts, the district judge found that the Michigan

Department of Corrections can, does, and should. assign

particular tasks in the female housing units on a gender-

specific basis, rather than assign entire jobs in the female

housing units based on gender. Pet. App. 108a-11la. As the

trial judge explained:

“Strip searches, observation of female inmates while

undressed, and staffing of medical visits are all discrete

tasks which should be limited to female corrections

officers as is transport under some circumstances. Pat

down searches are of the same order. The Securicor

study supports gender specific task assignments. All

this, however, does not make out a case for gender

specific assignment of [corrections officers and resident

unit officers] in the housing unit and_ plaintiffs’

willingness to accept the principle of gender specific

tasks does not mean they concede the MDOC’s posi-

tion.” [Pet. App. | 11a (emphasis in original). ]

The trial court took a balanced approach that respected the

rights of female prisoners yet also required the MDOC to

refrain from violating the Title VII rights of corrections

officers. Such a balance was found to be entirely feasible and

appropriate in the context of the Michigan prisons on the

exhaustive record before the district court. Cf Robino v.

Iranon, 145 F.3d 1109 (9th Cir. 1998) (upholding BFOQ for

six out of forty-one guard positions in small prison setting

after studies and extensive deliberation following an EEOC

settlement agreement) (distinguished from the facts of this

case at Pet. App. 101a-103a, 115a-117a).

The Sixth Circuit, however, abandoned the balanced ap-

proach taken by the district court and by other circuits in

Gregory, supra; Hardin, supra; Forts, supra; and Gunther,

supra. \gnoring the settled approach, the Sixth Circuit made

no effort to reconcile the corrections officers’ Title VII rights

with the prisoners’ rights. Instead, it presumed a direct con-

flict between the rights of corrections officers and those of

prisoners and concluded that all male officers must be re-

moved wholesale from the female housing units—regardless

of what the credited expert testimony revealed about safe

practices ensuring officers’ rights and prisoners’ rights. The

court of appeals justified this departure on the ground that the

director of MDOC should have the “ability to innovate” for

the sake of prison safety. Pet. App. 40a.

Such a one-sided approach wrongly deviates from the

recent decision in Cutter v. Wilkinson, __ U.S. __ (Case No.

03-9877, decided May 31, 2005), where this Court re-

emphasized that a state correctional system cannot axioma-

tically assert safety concerns to trump statutory or constitu-

tional rights. Cutter v. Wilkinson upheld the Religious Land

Use and Institutionalized Persons Act of 2000, 42 U.S.C.

§ 2000cc-1(a)(1)-(2), against an attack that, in part, asserted

that the statute would compromise prison security, based

upon the trial court’s finding that there was insufficient

evidence to prove a threat to prison security. .

Likewise here, the trial court carefully scrutinized the

record and found insufficient evidence to support the

MDOC’s argument that prison security necessitates inten-

tional gender discrimination. The district court found that

there were ways to reconcile corrections officers’ Title VII

rights with prisoners’ rights without jeopardizing prison

security, through the restructuring of job tasks and other

measures that had been recommended but never imple-

mented. Pet. App. 105a-106a, 108a-109a, 11 la. The court of

appeals brushed aside the trial court’s extensive factual

findings on this issue by relying upon the testimony of three

expert witnesses (Pet. App. 28a-30a) whom the district court

had decided not to credit over testimony of the plaintiffs’

experts (Pet. App. 106a). By doing so the Sixth Circuit

arrogated the fact finding role that F.R.C.P. 52(a) clearly

assigns to the district court. Anderson v. City of Bessemer,

470 U.S. 564 (1985).°

* To take one example of how the court of appeals simply substituted

its own factfinding for the trial court’s: the district court made factual

findings on the important issue of whether non-discriminatory alternatives

to the MDOC’s facially discriminatory plan would preserve safety. The

trial judge relied on the testimony of the plaintiffs’ expert witness, Dr.

Harley V. Stock, a psychologist specializing in employment matters. Dr.

Stock rendered an opinion that MDOC could reduce the risk of sexual

misconduct through standard pre-employment screening measures. 222 F.

Supp. 2d at 880. Pet. App. 78a-79a. Stock testified regarding his own

success in using such tests, and he identified flaws in a 1995 study upon

which the MDOC relied to conclude that psychological testing was

unsatisfactory. An expert witness for the defendants testified that pre-

employment testing had no predictive value. /d. at 883. Pet. App. 83a.

The district judge concluded that pre-employment screening, in use

among many prison systems, was one among many reasonable alterna-

Further, tossing aside extensive fact-finding by the district

court, the Sixth Circuit held that deference to the “pro-

fessional judgment” of the MDOC’s Director was “man-

date[d]” in this case. Pet. App. 28a The district court declined

to accord such deference based on evidence that included the

Director’s dearth of experience in corrections and the contrary

recommendations of the two professional committees that had

been convened to study whether removal of male officers from

the female housing units was necessary. See, Pet. App. 64a-66a,

105a-106a, 116a-117a. The court below overstepped the

boundaries of its appellate role under the clearly erroneous

standard set forth in F.R.C.P. 52(a), and at the same time failed

tives. /d. at 895. Pet. App. 108a. The court of appeals, speaking in the

voice of a fact-finder, made its own credibility determination concerning

Dr. Stock’s testimony:

The district court also erred in concluding that pre-employment

screening constituted a reasonable alternative to a female BFOQ.

Harley Stock, an expert for the plaintiffs, testified that the MDOC

could reduce its risk of hiring applicants likely to engage in sexual

abuse by instituting psychological testing and making other changes

in its pre-employment screening. However, Stock conceded that

(1) the tests he proposed do not measure a subject’s proclivity for

sexual abuse specifically, but instead place subjects into high risk

categories that “might include such things as inappropriate sexual

behavior” or assess “the ability to relate to members of the opposite

sex,” (2) he had not conducted follow-up studies to assess the

accuracy of his testing methods, (3) his proposed testing is valid

only for a year, and (4) he saw the testing of current employees as

a “problem.” Given its speculative value, and its limited applicabil-

ity, testing does not qualify as a reasonable alternative to gender-

specific assignments. {Ret—App. 34a (citation omitted).]

The foregoing is symptomatic of the court of appeals’ fundamental mis-

application of the clearly erroneous standard of review set forth in

F.R.C.P. 52(a). “Where there are two permissible views of the evidence,

the factfinder’s choice between them cannot be clearly erroneous.”

Anderson v. City of Bessemer, supra, at 574.

to undertake an effort reconcile the rights of corrections officers

with the asserted rights of prisoners.

This Court should review the decision below to resolve the

conflicting views as to the appropriate legal standard for

determining whether gender is a BFOQ, and to explicate the

proper balancing of interests and the appellate court’s role in

a factually complex BFOQ case such as this.

CONCLUSION

For the above reasons, Petitioners respectfully request that

the Court grant the Petition for a Writ of Certiorari to the

Sixth Circuit Court of Appeals.

Respectfully submitted,

JOHN R. RUNYAN *

ANDREW NICKELHOFF

MARSHALL J. WIDICK

SACHS WALDMAN, P.C.

1000 Farmer Street

Detroit, MI 48226

* Counsel of Record (313) 965-3464

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed March 18, 2005]

Nos. 02-2028/2033/2084

ROSLYN EVERSON, et al.,

Plaintiffs-Appellees,

MICHIGAN DEPARTMENT OF CORRECTIONS, ef al,

Defendants-Appellants (02-2033),

LINDA NUNN, ef al.,

Intervening Defendants-Appellants (02-2028/2084).

ORDER

BEFORE: NORRIS, GILMAN, and ROGERS, Circuit Judges.

The court having received a petition for rehearing en banc,

and the petition having been circulated not only to the origi-

nal panel members but also to all other active judges of this

court, and no judge of this court having requested a vote on

the suggestion for rehearing en banc, the petition for rehear-

ing has been referred to the original panel.

The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the

cases. Accordingly, the petition is denied. Judge Gilman would

grant rehearing for the reasons stated in his dissent.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

LEONARD GREEN, Clerk

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed Dec. 3, 2004]

Nos. 02-2028; 2033; 2084

ROSLYN EVERSON; RANDY FOX; STENNIS GEORGE; BRENDA

L. SEBASTIAN, and a class of all persons similarly situated,

Plaintiffs-Appellees,

MICHIGAN DEPARTMENT OF CORRECTIONS; BILL MARTIN,

individually and in his official capacity as Director of the

Michigan Department of Corrections,

Defendants-Appellants (02-2033),

LINDA NUNN; TRACY NEAL,

| Intervening Defendants-Appellants

| (02-2028/2084).

On Appeal from the United States District Court for the

| Eastern District of Michigan at Detroit

JUDGMENT

BEFORE: NORRIS, GILMAN, and ROGERS, Circuit Judges.

| THIS CAUSE was heard on the record from the district

court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that

the judgment of the district court is REVERSED and the case

is REMANDED with instructions to dismiss the complaint.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

LEONARD GREEN, Clerk

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 02-2028/2033/2084

ROSLYN EVERSON; RANDY FOX; STENNIS GEORGE; BRENDA

L. SEBASTIAN, and a class of all persons similarly situated,

Plaintiffs-Appellees,

¥.

MICHIGAN DEPARTMENT OF CORRECTIONS; BILL MARTIN,

individually and in his official capacity as Director of the

Michigan Department of Corrections,

Defendants-Appellants (02-2033),

LINDA NUNN; TRACY NEAL,

Intervening Defendants-Appellants

(02-2028/2084).

Appeal from the United States District Court for the

Eastern District of Michigan at Detroit

No. 00-73133 Avern Cohn, District Judge

Argued: February 4, 2004

Decided and Filed: December 3, 2004

BEFORE: NORRIS, GILMAN, and ROGERS, Circuit Judges.

COUNSEL

ARGUED: Deborah A. LaBelle, LAW OFFICES OF DEB-

ORAH LaBELLE, Ann Arbor, Michigan, Mark W. Matus,

MICHIGAN DEPARTMENT OF ATTORNEY GENERAL,

Lansing, Michigan, for Appellants. John R. Runyan, SACHS

I Ta I IN aR OP RC a Spa

WALDMAN, Detroit, Michigan, for Appellees. ON BRIEF:

Deborah A. LaBelle, LAW OFFICES OF DEBORAH

LaBELLE, Ann Arbor, Michigan, Mark W. Matus, MICHI-

GAN DEPARTMENT OF ATTORNEY GENERAL, Lans-

ing, Michigan, for Appellants. John R. Runyan, Eileen

Nowikowski, Marshall J. Widick, SACHS WALDMAN,

Detroit, Michigan, for Appellees.

ROGERS, J., delivered the opinion of the court, in which

NORRIS, J., joined. GILMAN, J. (pp. 20-21), delivered a

separate dissenting opinion.

OPINION

ROGERS, Circuit Judge. Following separate lawsuits by

female prisoners in Michigan and by the Civil Rights Divi-

sion of the United States Department of Justice, both of

which alleged rampant sexual abuse of female prisoners in

Michigan, the Michigan Department of Corrections (the

“MDOC’’) barred males from working in certain positions at

its female prisons. Specifically, the MDOC designated ap-

proximately 250 Correctional Officer (“CO”) and Residential

Unit Officer (“RUO”) positions in housing units at female

prisons as “female only.” A group of MDOC employees,

both males and females, sued the MDOC, alleging that the

MDOC’s plan violated Title VII of the Civil Rights Act-of

1964, 42 U.S.C. § 2000e-2(a), and Michigan’s Elliott-Larsen

Civil Rights Act, Mich. Comp. Laws § 37.2202. Following a

bench trial, the district court ruled in the plaintiffs’ favor,

concluding, among other things, that gender was not a bona

fide occupational qualification (a “BFOQ”) for the positions

in question. The district court entered a permanent injunction

enjoining the MDOC from making gender-specific assign-

ments at female prisons. Because gender is a BFOQ for

the positions in question, we reverse the judgment of the

district court.

BACKGROUND

At the time of trial, the MDOC managed a population of

approximately 2000 female prisoners.' Currently, the MDOC

houses most of its female prisoners at three facilities. The

Robert Scott Correctional Facility (the “Scott Facility”), lo-

cated in Plymouth, Michigan, is a multilevel prison with

an operating capacity of 860 prisoners, and it serves as the

reception center for all incoming female prisoners. The

Western Wayne Correctional Facility (the “Wayne Facility”),

also located in Plymouth, Michigan, is a secure Level I facil-

ity with an operating capacity of 775. Camp Brighton, located

near Pinckney, Michigan, is a Level I| facility with barracks-

style housing, and it has an operating capacity of 358.

At the time of trial, the MDOC employed approximately

19,000 persons, about 9400 of whom served as COs and

RUOs. The duties of COs and RUOs in the housing units

include patrolling the sleeping, shower, and bathroom areas,

attending to the basic needs of women prisoners (including

the provision of sanitary supplies), monitoring activity in the

living quarters, enforcing housing rules and procedures, and

assuring that proper standards of care and hygiene are

maintained. RUOs staff the housing units on the first and

second shifts, while COs staff the housing units on the third

shift. CO positions outside the housing units include intake

officer and transportation officer. Intake officers shepherd

prisoners through the intake process, during which new

prisoners are strip searched, fingerprinted, and showered, and

during which paperwork is completed on the prisoners. Intake

officers examine prisoners while they are naked. Among

other things, transportation officers drive inmates to prisons

'At the time of trial, female prisoners represented 4.3% of the

MDOC’s total population of approximately 46,000 prisoners. According

to the MDOC, since trial, the total population has increased to 50,600

prisoners, and the female population has increased to 2,100 prisoners,

4.2% of the total population.

to which they have been transferred and to medical appoint-

ments. Sometimes during transportation, female prisoners,

who are placed in restraints, require the assistance of a trans-

portation officer to use the bathroom.

The parties have provided only a partial picture of the

staffing at Michigan’s female prisons. According to the tes-

timony of Lori Sahl, a corrections officer employed at the

Wayne Facility, there are three officers per shift assigned to

each housing unit at the Wayne Facility. Each unit comprises

a pair of wings which house between 80 and 90 inmates each.

One officer works the “A” wing, one officer works the “B”

wing, and one officer works at a desk, where he or she watches

the other two officers as they make their rounds. R. 113, Tr.

at 91. According to the testimony of Joan Yukins, the warden

of the Scott Facility, the housing units at the Scott Facility are

shaped like a bow tie with an “A” side, a “B” side, and a

“center” containing offices and laundry rooms. In most of the

units, each side holds 96 inmates, though the capacity is

lower in the high-security and psychiatric units. For the most

part, the units are staffed with either two officers per side or

one officer per side plus a “rover.” R. 119, Tr. at 15-18, 21.

The problem of sexual abuse* and other mistreatment of

female inmates has long plagued the MDOC. In 1993, fol-

* The MDOC recognizes three categories of what we collectively term

“sexual abuse.” “Sexual misconduct” means engaging in, or attempting to

engage in, any of the following:

1. A sexual act with any prisoner.

2. The intentional touching, either directly or through clothing, of a

prisoner’s genitals, anus, groin, breast, inner thigh or buttocks

with the intent to abuse, humiliate, harass, degrade, arouse, or

gratify the sexual desire of any person.

3. Prohibited physical contact, including fondling or kissing.

4. Indecent exposure or other indecent sexual behavior by staff in

the presence of a prisoner.

lowing interviews of a number of inmates, the Michigan

Women’s Commission® advised the MDOC that it believed

that “sexual assault and harassment are not isolated incidents

and that fear of reporting such incidents is a significant

problem.” In 1996, after an independent investigation, Human

Rights Watch issued a report concluding that “rape, sexual

assault or abuse, criminal sexual contact, and other miscon-

duct by corrections staff are continuing and serious problems

within the women’s prison, in Michigan [and] have been

tolerated over the years at both the institutional and depart-

mental levels.* Human Rights Watch also charged that the

male corrections’ staff routinely violated the privacy rights of

inmates by, for example, abusing their power to conduct “pat-

down”’ searches and improperly viewing inmates as they used

the shower or toilet. Later, in 1998, Human Rights Watch

issued a second report describing a campaign of retaliation by

corrections staff against several women who had made public

accusations of sexual abuse. In 1999, following its own inves-

tigation, the United Nations Commission on Human Rights

seconded Human Rights Watch’s charge that corrections

officers systematically retaliated against women who reported

sexual abuse.

“Sexual Harassment” means “sexual advances, requests for sexual favors,

and other offensive verbal or physical conduct, including communica-

tions, of a sexual nature with a prisoner. This includes verbal conduct of a

gender-related nature intended to humiliate, harass, degrade or arouse.”

“Overfamiliarity” means “[c]onduct between staff and a prisoner which

has or is likely to result in intimacy or a close personal association, or

conduct that is contrary to the good order of the facility.”

*The Michigan Women’s Commission is an independent unit in the

executive office of the governor. Mich. Comp. Laws Ann. § 10.71 (West

2001).

“Human Rights Watch found that the current allegations of sexual

abuse were “consistent with a pattern and practice of conduct in women’s

prisons since, at least, the mid-1980s.”

Statistics compiled by the parties add some content to the

charge of rampant sexual abuse of female inmates in Michi-

gan’s prisons. According to the MDOC, between 1994 and

January 31, 2001, it investigated 217 allegations of sexual

misconduct’ against female inmates, of which 43 were sus-

tained and of which only 47 were deemed unfounded. Ac-

cording to the plaintiffs’ calculations, between 1994 and

2000, female inmates made 208 allegations of sexual miscon-

duct, of which 58 were sustained or resulted in the resigna-

tion, leave, or discharge of the accused. In 1997 and 1998,

Michigan cases constituted 10 out of a total of 20 convictions

of male staff nationwide for criminal sexual conduct against

women prisoners.

In addition to public criticism, the MDOC faced a pair of

high-profile lawsuits involving the sexual abuse of female

inmates in this period. On March 27, 1996, a group of female

inmates’ filed suit in the United States District Court for the

Eastern District of Michigan against the MDOC and a num-

ber of state officials and corrections officers (the “Nunn law-

suit”). The inmates alleged rampant sexual misconduct, sex-

ual harassment, violation of privacy rights, and retaliation by

corrections officers, and they asserted violations of the First,

Fourth, Eighth, Ninth, and Fourteenth Amendments under 42

U.S.C. § 1983, and of the Violence Against Women Act, 42

U.S.C. § 13981. The inmates’ monetary claims were settled

for a little less than $4 million, and, on July 31, 2000, the

inmates’ claim for injunctive relief was resolved by a settle-

ment agreement (the “Nunn agreement”). In the Nunn agree-

ment, the MDOC pledged, among other things, to restrict pat-

down searches of female inmates by male staff, to require

* These figures do not include allegations of sexual harassment or over-

familiarity. Additionally, evidence presented at trial indicates that sexual

misconduct may be underreported. R. 117, Tr. at 164; J.A. at 3149, 4177.

° The plaintiffs’ Second Amended Complaint named 32 female inmates

as plaintiffs.

male staff to announce their presence upon entering a housing

unit area, and to maintain areas where inmates may dress,

shower, and use the toilet without being observed by male

staff. Additionally, the Nunn agreement provided that “[c]on-

sistent with the MDOC’s announced intention to limit the

assignment of staff in faciliy housing units to female officers,

the MDOC will make a good faith effort to accomplish this

objective.”

In June of 1994, the Civil Rights Division of the United

States Department of Justice (the “DOJ’”’) initiated an inves-

tigation of allegations of sexual abuse and other violations of

the constitutional rights of inmates at a pair of Michigan

women’s prisons pursuant to the Civil Rights of Institutional-

ized Persons Act, 42 U.S.C. § 1997 et seg. The State refused

to grant the DOJ access to the facilities, but the DOJ managed

to interview over 100 inmates in the course of its investiga-

tion. By a letter dated March 27, 1995, the DOJ advised the

Governor of Michigan that it had concluded that “various

acts, practices, and other conditions at both facilities deny

inmates confined there of their constitutional rights.” The

DOJ found that “sexual abuse of women inmates by guards,

’More completely, the MDOC agreed in the Nunn agreement to

(1) screen applicants for positions involving contact with female inmates

for drug abuse and criminal histories, (2) train staff and internal investiga-

tors on issues relating to the supervision of prisoners, (3) review training

materials on sexual misconduct for prisoners, (4) minimize access to se-

cluded areas and one-on-one contact between male staff and inmates,

(5) ban pat-down searches of inmates by male staff absent emergency

circumstances during a twelve-month evaluation period, (6) require male

staff to announce their presence upon entering a housing unit area,

(7) maintain areas where inmates may dress, shower, and use the toilet

without being observed by male staff, (8) assign at least one female to

transport an inmate, (9) facilitate prisoner and staff reporting of allega-

tions of sexual misconduct, sexual harassment, and retaliation, (10) in-

vestigate allegations of sexual misconduct, sexual harassment, and retalia-

tion timely and completely, and (11) make a good faith effort to limit the

assignment of staff in housing units to female officers.

10a

including rapes, the lack of adequate medical care, including

mental health services, grossly deficient sanitation, crowding,

and other threats to the physical safety and well-being of

inmates violates their constitutional rights.” The DOJ letter

reported a pattern of sexual abuse, including sexual assaults

by guards, “frequent” sexual activity between guards and

inmates, sexually aggressive acts by guards (such as pressing

their bodies against inmates, exposing their genitals to in-

mates, and fondling inmates during “pat-down” searches),

and ubiquitous sexually suggestive comments by guards. The

DOJ letter also detailed improper visual surveillance of in-

mates, including the “routine” practices of watching inmates

undress, use the shower, and use the toilet.

Two years later, on March 10, 1997, the DOJ filed suit

against the State of Michigan in the United States District

Court for the Eastern District of Michigan (the “USA law-

suit”) pursuant to the Civil Rights of Institutionalized Persons

Act. The United States alleged that Michigan was violating

the constitutional rights of female inmates by failing to pro-

tect them from sexual misconduct, by failing to prevent un-

lawful invasions of their privacy, and by failing to provide

adequate medical and mental health care. After conducting

extensive discovery, the United States dismissed its claims

related to the provision of medical and mental health care. On

May 25, 1999, the parties entered into a settlement agreement

resolving the remaining claims (the “USA agreement’). In the

USA agreement, Michigan pledged, among other things, to

minimize access to secluded areas and one-on-one contact

between male staff and female inmates, to implement a “knock

and announce” policy whereby male officers must announce

their presence prior to entering areas where inmates normally

could be in a state of undress, and to restrict pat-down

searches of female inmates by male staff.* The MDOC also

* More completely, Michigan agreed to (1) conduct pre-employment

screening, including drug testing and criminal background checks, to

lla

agreed to conduct a study exploring the feasibility of “re-

deploying officers to increase the presence of female officers

in the housing units” and “rotating staff assignments to hous-

ing units” and, if feasible, to implement a plan consistent with

this study.

On June 25, 1999, and on October 25, 1999, the MDOC’s

Director issued Director’s Office Memoranda to implement

the USA agreement. On December 6, 2000, the Director

signed a Policy Directive that superseded the Director’s Of-

fice Memoranda and formalized the changes mandated by the

USA and Nunn agreements. Major changes in policy insti-

tuted by the MDOC included a moratorium on pat-down

searches of female inmates by male officers absent exigent

circumstances; a “knock and announce” policy requiring male

staff to announce their presence before entering places where

female prisoners are likely to be in a state of undress; a

uniform dress code for prisoners; the minimization of one-on-

one contact between male staff and female inmates and of

access to secluded areas; the maintenance of one or more

determine the fitness of applicants for work at female prisons, (2) provide

specialized training for employees at female prisons, (3) educate inmates

on the MDOC’s prohibitions against sexual misconduct, sexual harass-

ment, and overfamiliarity, (4) facilitate inmate and staff reporting of alle-

gations of sexual misconduct, sexual harassment, and overfamiliarity,

(5) investigate allegations of sexual misconduct, sexual harassment, and

overfamiliarity in a timely and complete fashion, (6) minimize access to

secluded areas and one-on-one contact between male staff and female in-

mates, (7) conduct random interviews of inmates concerning sexual mis-

conduct, sexual harassment, and overfamiliarity, (8) implement a “knock

and announce” policy whereby male officers must announce their pres-

ence prior to entering areas where inmates normally could be in a state of

undress, (9) ban “pat-down” searches of female inmates by male staff

absent exigent circumstances during an evaluation-period of at least six

months, (10) screen inmates for past histories of physical or sexual abuse,

and (11) conduct a study to explore the feasibility of redeploying officers

to increase the presence of female officers in the housing units and of

rotating staff assignments to the housing units.

12a

locations where inmates may dress, shower, and use the toilet

out of sight of male staff; random interviews of female in-

mates; specialized training for inmates and staff at female

prisons; improved procedures for investigating allegations of

sexual misconduct and retaliation; and drug testing of and

criminal history checks on applicants for employment.

Sometime in 1998, prior to the USA and Nunn agreements,

the MDOC’s Director’ appointed a Gender Specific Assign-

ment Committee (the “GSAC’), consisting of a number of

high-level MDOC officials, which was instructed to review

officer assignments within Michigan’s correctional facili-

ties—both male and female—for the -feasibility of making

them gender-specific. In its final report, which was issued on

December 11, 1998, the GSAC recommended gender-specific

assignments to certain tasks, such as strip searches, pat-down

searches, and urine collection. However, the GSAC unani-

mously endorsed gender neutrality in assignments to first-

and second-shift positions in housing units, and a majority of

the committee advised against gender-specific assignments to

third-shift positions in housing units. Four of six members

recommended that the MDOC move toward “gender balance”

—meaning that, “where more than one officer is assigned, the

second officer may be gender specific’—through attrition,

stating that they did not “believe gender specific assignments

are a viable option due to the labor pool and union contracts,”

but observing that “some states have voluntarily implemented

gender specific assignments on specific shifts through letters

of agreement with the corrections officers’ union or have

responded to various threats/instances of court intervention.”

One of the dissenters advised that only females should be

assigned to third-shift housing unit positions in female facili-

ties, while the other advocated gender-specific assignments to

” The defendant, Bill Martin, was appointed as Director of the MDOC

in 1999.

13a

third-shift housing unit positions in both male and female

facilities.

Pursuant to the USA agreement, the MDOC commissioned

Securicor New Century, LLC (“Securicor’), a consulting

firm, to study ways to increase the presence of female officers

in the housing units at Michigan’s women’s prisons. In

particular, Securicor was instructed to explore the feasibility

of redeploying female officers to positions in the housing

units and of rotating staff assignments. Securicor’s report,

dated August 20, 1999, recommended a number of strategies

for increasing the number of female officers in the housing

units, including exploring the redeployment of all available

female officers to housing units, covering RUO vacancies in

the housing units with female COs, redeploying female offi-

cers in supervisory positions, exploring the possibility of

rotating female officers assigned to housing units to different

shifts and locations, creating incentives for female applica-

tions, changiig the shift times to create overlapping shifts,

and revising the criteria for promotion.

On October 13, 1999, during testimony before the House

Appropriations Subcommittee on Corrections of the Michigan

House of Representatives, Bill Martin, the MDOC’s Director,

disclosed that the MDOC was exploring the possibility of

removing male officers from certain areas in female facilities,

as well as female officers from certain areas in male facilities,

in order to minimize incidents of sexual_ misconduct. On

December 9, 1999, Martin formally announced his intention

to remove male officers from female prisons, stating, “I am

convinced that the single best way to protect [male officers’ ]

personal and professional lives is to remove them from those

assignments in which they are most vulnerable” to allegations

of sexual abuse. According to the district court, Martin was

unaware of the GSAC’s analysis when he made this decision,

and there was no evidence presented at trial that any internal

MDOC memoranda recommended such a step or that Martin

14a

had consulted the Michigan Department of Civil Rights or the

Attorney General of Michigan regarding the change.

In February 2000, the MDOC hired Michael Mahoney’? to

study “whether certain custody positions at MDOC women’s

facilities should be filled only by female custody staff or if

there is a less intrusive means to ensure the safety and reason-

able privacy needs of female inmates.” In June 2000, Ma-

honey issued a report concluding that only female officers

should fill the CO and RUO positions in housing units,

segregation units, and intake units at Michigan’s women’s

facilities. He opined that this reform would reduce the likeli-

hood of sexual misconduct, improve the security in the

housing units by removing “gun-shy” male officers and by

permitting increased surveillance of inmates, and reduce false

allegations of sexual misconduct. Mahoney advised that re-

forms undertaken pursuant to the Nunn and USA settlements

could not alone address the problems of sexual abuse and

inmate privacy.

On August 2, 2000, the MDOC filed applications with the

Michigan Department of Civil Service (the “MDCS”) for

“selective certification” of CO and RUO positions in the

housing units, segregation units, and intake units at its

women’s facilities as “female only.” In the applications, the

MDOC reported that it had faced lawsuits alleging sexual

misconduct and violation of privacy rights of female inmates,

and had made a number of changes in response to these

charges. However, it stated that “it is felt that these changes

will not eliminate inappropriate behavior or sexual miscon-

duct,” and it claimed that selective certification would

enhance the privacy of female prisoners, reduce the

likelihood of sexual misconduct; the reduction [sic] of

Mahoney was the president and executive director of the Jehn

Howard Association, a private, not-for-profit prison reform group, and he

served as an expert for the DOJ in the USA lawsuit.

15a

fear of sexual misconduct will enhance the ability of the

[MDOC] to achieve its mission, security capabilities

would be improved due to much less reluctance by

female staff to perform observation duties, and female

staff only in housing units would reduce the likelihood

of instances where individual male staff and individual

female prisoners would be involved in long isolated

contacts.

On August 14, 2000, the MDCS approved the MDOC’s

applications without a hearing. As of the summer of 2001, the

certification affected 267 positions—257 CO and RUO posi-

tions in housing units, 8 transportation officers, and 2 intake

officers. The MDOC contends that, in the interim, the total

number of affected positions has decreased to 247.

On July 12, 2000, the plaintiffs'' filed suit against the

MDOC and Bill Martin, the MDOC’s director, in his official

capacity and individually, in the United States District Court

for the Eastern District of Michigan. The plaintiffs alleged

that gender-based assignments at female correctional facilities

violated Title VII of the Civil Rights Act of 1964 (“Title

VII’), 42 U.S.C. § 2000e-2(a)(1), and Michigan’s Elliott-

Larsen Civil Rights Act (the “Elliot-Larsen Act’), Mich.

Comp. Laws Ann. § 37.2202(1)(a) (West 2001). Additionally,

'' The original plaintiffs are (1) Roslyn Everson, a CO at the Scott

Facility, (2) Randy Fox, an RUO at the Camp Branch Correctional

Facility in Coldwater, Michigan, which, at the time the suit was filed,

housed female inmates, (3) Stennis George, an RUO at the Scott Facility,

and (4) Brenda L. Sebastin, a CO at the Camp Cassidy Lake Correctional

Facility in Chelsea, Michigan, which, at the time the suit was filed,

housed female inmates. Later, Richard Idemudia, an RUO at the Western

Wayne Facility, was added as a plaintiff On November 1, 2000, the

plaintiffs moved for certification of a class composed of all corrections

officers and related classes of employees who have been or will be

adversely affected by the gender-based assignments at correctional

facilities that house female prisoners, The district court never ruled on the

motion, which the defendants opposed.

l6a

the plaintiffs asserted against Martin an Equal Protection

Clause claim under 42 U.S.C. § 1983. Plaintiffs sought a

declaratory judgment that gender-based assignments at

female correctional facilities violated Title VII, the Elliott-

Larsen Act, and the Equal Protection Clause, injunctive relief

enjoining further discrimination, damages for lost earnings,

compensatory damages for emotional distress and damage to

their reputations, punitive damages against Martin, and

attorney fees pursuant to Title VII and the Elliott-Larsen Act.

On September 28, 2000, the district court entered a tem-

porary restraining order, which enjoined the MDOC and

Martin “from implementing the plan to make gender-specific

assignments and/or to allow only female staff to hold

Corrections Officer and Resident Unit Officer positions in

work assignments in housing units, segregation units and/or

intake units at the Robert Scott, Western Wayne, and Camp

Branch Correctional Facilities.” On October 13, 2000, the

district court granted a motion for intervention filed by a

group of female inmates—specifically, the certified class

from the Nunn Lawsuit and the certified class in Neal v.

MDOC, No. 96-6986-CZ (Washtenaw Co. Cir. Ct.), another

class action by female inmates against the MDOC alleging

sexual abuse, privacy violations, and retaliatory conduct by

male staff.

The bench trial began on February 13, 2001, and continued

over nine days until March 7, 2001. On July 11, 2002, the

district court entered a decision and a declaratory judgment

providing that gender-based assignments to the CO and RUO

positions at the Scott Facility, the Wayne Facility, and Camp

Brighton violate Title VII and the Elliot-Larsen Act. The

court concluded that the implementation of the policy would

have an adverse employment effect on the plaintiffs and that

gender was not a bona fide occupational qualification. On

August 8, 2002, the district court entered a final judgment,

which permanently enjoined the defendants from implement-

17a

ing the plan to make gender-specific assignments to CO and

RUO positions at the Scott Facility, the Wayne Facility, and

Camp Brighton, and which dismissed the plaintiffs’ § 1983

claim against Martin with prejudice. '”

The district court concluded that gender is not a BFOQ for

housing unit officers. The court explained that “[t]here has

simply been no showing that there is reasonable cause to find

that all, or substantially all, males are not able to perform

safely and efficiently the duties of a CO and RUO in the

housing units in the female prisons.” Everson v. Mich. Dep't

of Corr., 222 F. Supp. 2d 864, 895 (E.D. Mich. 2002). In

reaching this conclusion, the court made the following

findings of fact: (1) standard practices nationwide provide for

the employment of male corrections officers in female prisons

and “there is nothing unique about the operation of the female

prisons in Michigan”; (2) the GSAC and Securicor studies did

not recommend this strategy, and “there is no evidence that

any MDOC official supported it at the time the request was

made to [the MDCS] for selective certification”; (3) the

concern over cross-gender supervision of prisoners originated

with Martin; (4) the opinions of the plaintiffs’ experts were

“considerably more credible” than those of the defendants’

experts; (5) the changes required by the USA and Nunn

agreements have only recently been implemented; (6) statis-

tical evidence showed a “substantial decrease” in improper

conduct since the implementation of the changes called for in

the USA and Nunn agreements; and (7) “the published

literature on the presence of male correctional officers in

female prisons does not support a female BFOQ for correc-

tions officer in the housing units in a female prison.” /d. at

893-95.

'? On December 7, 2000, the district court bifurcated the issue of

damages and stayed discovery pending the resolution of the issue of

liability.

18a

Additionally, the district court determined that reasonable

alternatives to the MDOC’s plan exist. Specifically, it stated

that the Securicor study identified a number of reasonable

alternatives—in particular, covering vacancies with females,

increasing female coverage where necessary with overtime,

and redeploying female officers in supervisory positions—

which the MDOC had not explored. /d. at 895. Additionally,

it noted that the MDOC had not made efforts to enhance pre-

employment screening to lessen the likelihood of employing

high-risk male COs and RUOs in female prisons. /d. The

court stressed, however, that nothing in its decision “should

be read to prohibit the MDOC officials from making gender

specific task assignments.” Jd. at 899. The MDOC and Mar-

tin, as well as the intervening defendants, timely appealed.

ANALYSIS” -

The district court erred in finding that the female gender is

not a BFOQ for the positions of CO and RUO in the housing

units at MDOC’s female facilities.'* Title VII of the Civil

Rights Act of 1964 broadly proscribes gender-based dis-

crimination in the workplace. See Grant v. Gen'l Motors

Corp., 908 F.2d 1303, 1306 (6th Cir. 1990). The MDOC

concedes that it has adopted a facially discriminatory plan,

and this case therefore “turn{s] on whether such overt

disparate treatment is for some reason justified under Title

VII.” Reed v. County of Casey, 184 F.3d 597, 599 (6th Cir.

1999) (internal quotation omitted). Title VII permits overt

discrimination if the disparate treatment is based on a bona

fide occupation qualification, or BFOQ. /d.

The BFOQ defense countenances gender-based discrim-

ination “in those certain instances where . . : sex .. . is a bona

fide occupational qualification reasonably necessary to the

Because we find that gender is a BFOQ, we need not address the

defendants’ alternative argument that the plaintiffs Tithe Vil claim fails

for lack of an adverse employment action by the MDOC,

19a

normal operation of that particular business or enterprise.

42 U.S.C. § 2000e-2(e) (2001). It is true that the BFOQ

defense is written narrowly, and is to be read narrowly. /nt’]

Union, United Auto., Aerospace & Agric. Implement Workers

of Am. v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991).

Moreover, the burden is on an employer to establish a BFOQ

defense. Grant, 908 F.2d at 1306.

Courts have offered various formulations of the BFOQ

defense, Dothard v. Rawlinson, 433 U.S. 321, 333 (1977),

and from these decisions we distill the principles that lead us

to the conclusion that the defense has been established in this

3314

“5 The Elliot-Larsen Act parallels Title VII. Section 202(1)(a) of the

Elliott-Larsen Act provides

An employer shall not do any of the following: . . . Fail or refuse to

hire or recruit, discharge, or otherwise discriminate against an indi-

vidual with respect to employment, compensation, or a term, condi-

tion, or privilege of employment, because of . . . sex . . .

Mich. Comp. Laws Ann. § 37.2202(1)(a) (West 2001). The Elliott-Larsen

Act also includes a “BFOQ” defense, which reads

A person subject to this article may apply to the commission for an

exemption on the basis that . . . sex is a bona fide occupational

qualification reasonably necessary to the normal operation of the

business or enterprise. . . . An employer may have a bona fide

occupational qualification on the basis of . . . sex . . . without obtain-

ing prior exemption from the commission, provided that an em-

ployer who does not obtain an exemption shall have the burden of

establishing that the qualification is reasonably necessary to the

normal operation of the business.

Id. § 37.2208.

Federal civil rights cases are persuasive rather than controlling author-

ity in determining the proper interpretation of the Elliott-Larsen Act.

Bryant v. Automatic Data Processing, Inc., 390 N.W.2d 732, 734 (Mich.

Ct. App. 1986). However, the partics have not identified any relevant

substantive differences between Title VII and the Elliott-Larsen Act, and

the parties and the district court have relied almost entirely on federal

precedent. Accordingly, we decide the plaintiffs’ claim under the Ethot-

Larsen Act on the same basis that we decide the plaintiffs’ Tithe VIE claim.

20a

case. First, “it is impermissible under Title VII to refuse to

hire an individual woman or man on the basis of stereotyped

characterizations of the sexes,” id., and an employer must

have a “basis in fact,” id. at 335; for its belief that gender

discrimination is “reasonably necessary”—not merely reason-

able or convenient—to the normal operation of its business.

Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (Sth

Cir. 1971); see also Western Air Lines, Inc. v. Criswell, 472

U.S. 400, 414 (1985) (interpreting the BFOQ defense in the

Age Discrimination in Employment Act (“ADEA”)). Courts

have variously stated that an employer can meet this

requirement by showing that “all or substantially all [mem-

bers of one gender] would be unable to perform safely and

efficiently the duties of the job involved,” Johnson Controls,

499 U.S. at 207 (quoting Weeks v. S. Bell Tel. & Tel. Co., 408

F.2d 228, 235 (Sth Cir. 1969)); that “it is impossible or highly

impractical” to determine on an individualized basis the

fitness for employment of members of one gender,'> Harriss

'S The plaintiffs maintain that the “impossible or highly impractical”

standard applies only to the BFOQ defense set forth in the ADEA. They

argue that the court should not import this “lower” standard into Title VII

jurisprudence because (1) Title VII’s BFOQ “provides only the narrowest

of exceptions to the general rule requiring equality of employment oppor-

tunities,” Dothard v. Rawlinson, 433 U.S. 321, 333 (1977), (2) the Su-

preme Court declined to adopt the standard for Title VII cases in

International Union, United Automobile, Aerospace and Agriculture

Implement Workers of America v. Johnson Controls, Inc., 499 U.S. 187

(1991), and (3) the standard is premised on considerations unique to the

aging process.

The plaintiffs’ argument fails for a number of reasons. Most funda-

mentally, the “impossible or highly impractical” standard is not solely an

ADEA standard. This language appears to have originated in a Title VII

case, Weeks v. So. Bell Tel. & Tel. Co., 408 F.2d 228, 235 n.5 (Sth Cir.

1969), and subsequently to have been applied in ADEA cases. Western

Air Lines, Inc. v. Criswell, 472 U.S. 400, 414 n.19 (1985). At least two

circuits have utilized this language in Title VII cases. Harriss v. Pan Am.

World Airways, Inc., 649 F.2d 670, 676 (9th Cir. 1981); Weeks, 408 F.2d

at 235 n.5.

2la

Moreover, even if the standard had not yet been applied in Title VII

cases, precedent suggests that it should be. “The provisions of the ADEA

generally receive an identical interpretation to corresponding provisions of

Title VI,” Lilley v. BTM Corp., 958 F.2d 746, 750 n.2 (6th Cir. 1992),

and Title VIl and the ADEA define the BFOQ defense in materially

indistinguishable terms. Compare 29 U.S.C. § 623(f)(1) (2001) (“It shall

not be unlawful for an employer . . . to take any action otherwise pro-

hibited . . . where age is a bona fide occupational qualification reasonably

necessary to the normal operation of the particular business . . . .”), with

42 U.S.C. § 2000e-2(e) (“[I]t shall not be an unlawful employment

practice for an employer to hire and employ employees . . . on the basis of

... Sex... in those certain instances where . . . sex . . is a bona fide

occupational reasonably necessary to the normal operation of that

particular business or enterprise. . . .”). In fact, the Supreme Court has

observed that Congress borrowed the concept and statutory language from

Title VII's BFOQ defense in composing the ADEA’s BFOQ defense, and

the Court has used Title VII and ADEA case law interchangeably.

Johnson Controls, 499 U.S. at 201; Criswell, 472 U.S. at 412, 416.

The plaintiffs’ arguments against applying the “ADEA” standard in

Title VII cases—the plaintiffs do not acknowledge the lineage of the

“impossible or highly impractical” standard—are not persuasive. The

Court has read the ADEA’s BFOQ defense, “which tracks the BFOQ

provision in Title Vil, just as narrowly.” Johnson Controls, 499 U.S. at

201. The Johnson Controls decision concerned whether the employer’s

asserted BFOQ related to the “essence” of the employer’s business, and

did not purport to hold that an employer can establish “reasonable

necessity” only by showing that “all or substantially all woman would be

unable to perform safely and efficiently the duties of job invulved.”

Johnson Controls, 499 U.S. at 206-07 (internal quotations omitted). The

plaintiffs fail to identify the “considerations unique to the aging process”

that require a departure from the usual practice of interpreting Title VII

and the ADEA in identical fashion.

In short, the BFOQ defense has not been reduced to a single,

universally-applicable test. The “all or substantially all” and “impossible

or highly impractical” standards are, to use the language of Dothard, 433

U.S. at 333, “formulations” of the “reasonable necessity” requirement, not

hard-and-fast rules of law. These tools may or may not assist a court in

evaluating the facts of the particular case before it. In the instant case,

both standards have helped guide our analysis, but our decision does not

turn on the use of either standard.

22a

v. Pan Am. World Airways, Inc., 649 F.2d 670, 676 (9th Cir.

1980) (quoting Weeks, 408 F.2d at 235 n.5); or that “the very

womanhood or very manhood of the employee undermines

his capacity to perform a job satisfactorily,” Torres v. Wisc.

Dep't of Health & Soc. Servs., 859 F.2d 1523, 1528 (7th Cir.

1988) (en banc). Second, the Supreme Court has stressed that

“in order to qualify as a BFOQ, a job qualification must relate

to the essence, or to the central mission of the employer’s

business.” Johnson Controls, 499 U.S. at 203 (internal cita-

tions and punctuation omitted). Third, this court imposes on

employers asserting a BFOQ defense the burden of estab-

lishing that no reasonable alternatives exist to discrimination

on the basis of sex. Reed, 184 F.3d at 600.

In reaching the conclusion that the female gender is a

BFOQ for the CO and RUO positions in this case, we are

aided by a series of cases that directly address the issue of

gender as a BFOQ for corrections officers in female cor-

rectional facilities. Reed, 184 F.3d at 600; Robino v. Iranon,

145 F.3d 1109, 1110-11 (9th Cir. 1998); Tharp v. lowa Dep't

of Corr., 68 F.3d 223, 226 (8th Cir. 1995); Torres, 859 F.2d

at 1532. These decisions teach that the reasoned decisions of

prison officials are entitled to deference and that the goals of

security, safety, privacy, and rehabilitation can justify gender-

based assignments in female correctional facilities.

Because of the unusual responsibilities entrusted to them,

the redoubtable challenges they face, and the unique re-

sources they possess, the decisions of prison administrators

are entitled to a degree of deference, even in the Title VII

context. As the Seventh Circuit, sitting en banc, observed,

prison officials

must grapple 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

23a

with an improved chance of being useful, law-abiding

citizens.”

Torres, 859 F.2d at 1529 (quoting Rhodes v. Chapman, 452

U.S. 337, 352 (1981)). To meet this daunting task, the court

continued, “prison administrators always have been expected

to innovate and experiment. Unless prison administrators try

new approaches, the ‘intractable problems’ will remain and

the lot of the incarcerated individual will not improve.

Indeed, it probably will deteriorate.” /d. (internal citation

omitted). Thus, the court concluded that, although the deci-

sions of prison officials are not accorded as much deference

in Title VII cases as they are in constitutional cases,'° “their

'© In cases involving constitutional challenges to the actions of prison

administrators, the Supreme Court has stressed repeatedly that the deci-

sions of administrators are entitled to substantial deference. See, e.g..

Washington v. Harper, 494 U.S. 210, 223-24 (1990); Turner v. Safley,

482 U.S. 78, 84-85, 89 (1987); Whitley v. Albers, 475 U.S. 312, 321-22

(1986). In particular, “the proper standard for determining the validity of a

prison regulation claimed to infringe on an inmate's constitutional rights

is to ask whether the regulation is reasonably related to legitimate

penological interests,” even when “the constitutional right claimed to have

been infringed is fundamental, and the State under other circumstances

would have been required to satisfy a more rigorous standard of review.”

Harper, 494 U.S. at 223 (internal quotation marks omitted). Behind this

rule is the recognition that

courts are ill equipped to deal with the increasingly urgent problems

of prison administration and reform. . . . [T]he problems of prisons

in America are complex and intractable, and, more to the point, they

are not readily susceptible of resolution by decree. Running a prison

is an inordinately difficult undertaking that requires expertise, plan-

ning, and the commitment of resources, all of which are peculiarly

within the province of the legislative and executive branches of

government. Prison administration is, moreover, a task that has been

committed to the responsibility of those branches, and separation of

powers concerns counsel a policy of judicial restraint. Where a state

penal system is involved, federal courts have . . . additional reason

to accord deference to the appropriate prison authorities.

Turner, 482 U.S. at 84-85 (internal citations omitted).

24a

judgments still are entitled to substantial weight when they

are the product of a reasoned decision-making process, based

on available information and experience.” fd. at 1532; see

also Robino, 145 F.3d at 1110 (holding that the professional

judgments of prison administrators are entitled to deference);

cf. Tharp, 68 F.3d at 226 (applying a “deferential balancing

test” to constitutional component of plaintiffs’ challenge to

prison administrator’s gender-based staffing assignments).

The district court distinguished Torres and its progeny on

the ground that the MDOC’s decision “reflected neither

reasoned decision making nor professional judgment, but

rather the consequence of a belief of one person, not a cor-

rectional professional, in a transitory position of authority,

that it was best for the female prisons in Michigan.” Everson,

222 F. Supp. 2d at 898. The court elaborated,

The reason for this case is that Martin became director

and he came to the position with a stereotypical view of

the role of sex in employment in male and female

prisons: males guard males and females guard females.

Without consulting his staff and without a review of

internal studies, national policies or the literature Martin,

and Martin alone, decided the change was appropriate

and the MDOC staff fell in line. Martin had no quali-

fications from past training[,] employment or experience

to make a reasoned judgment on the subject and his

leaving corrections as a profession simply confirms this.

Id. at 897. In defending the district court’s ruling, the plain-

tiffs point to the district court’s findings that Martin did not

consult with his staff, that the MDOC did not submit its

BFOQ request to the Michigan Department of Civil Rights,

and that the GSAC study did not recommend gender-specific

assignments.

The district court committed legal error in concluding that

the MDOC had forfeited the deference normally afforded

25a

prison administrators. Cases may arise in which a prison

official has acted so capriciously that his decision does not

deserve deference, but the case at bar does not fall in this

category. The MDOC was not obligated to follow any

particular protocols in order to earn deference, and the district

court applied too exacting a standard in dismissing the

MDOC’s deliberations as inadequate. In effect, the district

court circumvented the rule of deference by second-guessing

the procedures employed by the MDOC.

Though it did not exhaust its institutional resources, the

MDOC made a considered decision that a BFOQ was

necessary to address the grave problem of sexual abuse of

female inmates. When Martin assumed the position of

Director, the MDOC faced a pair of high-profile lawsuits and

a chorus of public criticism charging that it had ignored, or

covered up, widespread sexual abuse of its female inmates—a

situation calling for prompt and decisive action. In the USA

agreement, the MDOC agreed to study the feasibility of

increasing the presence of female officers in the housing

units,'’ and, in the Nunn agreement, the MDOC agreed to

make a good faith effort to limit the assignment of staff in

housing units to female officers. J.A. at 1255, 1266. The

Securicor study, undertaken pursuant to the USA agreement,

recommended that the MDOC “explore the re-deployment of

all available female corrections officers . . . to housing units.”

J.A. at 994. Mahoney’s report, which Martin commissioned

prior to the MDOC’s application for selective certification,

recommended that only women be assigned to the CO and

RUO positions in the housing, segregation, and intake units

because, in Mahoney’s opinion, only this action could ensure

'’ Three experts for the DOJ in the USA lawsuit recommended that,

consistent with Title VII’s mandate of equal employment opportunity, the

MDOC staff the housing units in its female facilities with female staff

only, either permanently or until misconduct was reduced. J.A. at 4009-

10, 4014, 4116, 4167.

26a

safe and humane conditions of confinement and the pro-

fessional operation of the MDOC’s facilities. J.A. at 1441.

Additionally, Martin testified that-he consulted with his staff

about the plan prior to seeking selective certification and

discussed privacy accommodations for female inmates with

prison officials from other states. J.A. at 3307-08, 3314.

Finally, the MDOC assembled an array of materials in

support of its application for selective certification,'® and the

MDCS approved the application.'” Clearly, the MDOC’s plan

was “the product of a reasoned decision-making process,”

Torres, 859 F.2d at 1532, and not simply the result of

Martin’s whim.

The procedural shortcomings identified by the district court

do not dictate a contrary conclusion. The district court appar-

ently reasoned that, because Martin had a limited background

in corrections,”” because Martin did not consult with the

wardens of the female facilities before adopting the plan,

because the MDOC did not seek approval from the Michigan

Department of Civil Rights, and because the GSAC study did

'* The materials included a summary of disciplinary action taken

against MDOC employees for sexual abuse, data on practices in female

prisons in other states, descriptions of the duties of COs and RUOs in the

unit in Michigan’s RUOs in the housing s female facilities, applications

for a BFOQ for officer positions at a women’s prison prepared by

Wisconsin corrections officials, expert reports from the USA lawsuit, the

GSAC study, the Securicor study, the Mahoney report, and the USA and

Nunn agreements. J.A. at 3729-4203.

' The district court found that the Department of Civil Service

“rubber-stamped” the MDOC’s application. Everson v. Mich. Dep't of

Corr., 222 F. Supp. 2d 864, 878 (E.D. Mich. 2002). We find this con-

clusion, which was based solely on the fact that the approval took twelve

days, unwarranted.

experience in corrections was his four years of service on the Corrections

Committee of the Michigan House of Representatives while a state

legislator.

27a

not recommend a BFOQ, the plan did not reflect the

institutional expertise of the MDOC and, hence, did not merit

~ deference. However, as discussed above, the evidence shows

that Martin drew on some, though not all, of the resources

and expertise of the MDOC in the course of settling the USA

and Nunn lawsuits and formulating the plan. Moreover, the

district court failed to recognize that courts defer to the

judgments of prison administrators not simply because of

their expertise. Additional reasons counsel in favor of a

policy of judicial restraint: the ability of administrators to

plan and muster resources, the primary nature of the

executive—as opposed to the judicial—branch of government

to run the prisons, and the respect owed to state sovereignty

by the federal judiciary. Cf Turner v. Safley, 482 U.S. 78, 85

(1987). These considerations apply whether or not Martin

acted unilaterally. Finally, none of the irregularities identified

by the district court vitiated the MDOC’s decision-making

process. A prison official need not run his department as a

participatory democracy nor build “unanimity of opinion” to

win deference. Torres, 859 F.2d at 1532. Neither the district

court nor the plaintiffs explain what sort of penological

expertise the Michigan Department of Civil Rights would

have contributed, and there was no statutory requirement that

the MDOC obtain approval from the Department of Civil

Rights. Mich. Comp. Laws Ann. § 37.2208 (West 2001). To

bind the MDOC to the recommendations of the GSAC, which

were made before Martin became Director and before the

USA and Nunn agreements, would, in violation of Torres and

its progeny, deprive the MDOC of the freedom to evolve and

innovate.” In short, in closely scrutinizing the decision-

making process of the MDOC, the district court effectively

rendered the rule of deference a nullity.

*! Additionally, the GSAC’s recommendations rested, at least in part,

on the conclusion that gender-based assignments were not a viable option

“due to the labor pool and union contracts”—a conclusion silent as to the

penological soundness of gender-based assignments. J.A. at 3933.

28a

Application of the correct legal standard, which mandates

that we give due regard to the professional judgment of the

MDOC, makes it clear that the female gender is a BFOQ for

the CO and RUO positions in the housing units at female

prisons in Michigan. Viewed in proper perspective, the

exclusion of males from these positions is “reasonably nec-

essary” to “the normal operation” of the MDOC’s female

facilities. The MDOC reasonably concluded that a BFOQ

would materially advance a constellation of interests related

to the “essence” of the MDOC’s business—the security of the

prison, the safety of inmates, and the protection of the privacy

rights of inmates—and reasonable alternatives to the plan

have not been identified.

Unquestionably, the security of the prisons relates to the

essence of the MDOC’s business, and the MDOC maintains

that the presence of male COs and RUOs in female housing

units imperils security in a number of ways. First, the

presence of males in the housing units necessitates the use of

“artificial barriers to security” such as covers for cell win-

dows, doors on the toilet stalls, shower curtains, the mora-

torium on pat-down searches by male officers, and the “knock

and announce” policy.” Second, allegations of sexual abuse,

? George Camp, a former corrections official and currently a correc-

tions consultant, testified that these artificial barriers to security “give

inmates an opportunity to manipulate behind that, to do things that they

ought not to be doing, for the staff not to be aware, not to interact with

them, and | think that runs counter to being alert, observant, and in the

know, and you have to have that.” J.A. at 3110. He further testified that

“fo]nce you abandon any part of the turf at any time or any place, you

have sent a signal that this belongs to the inmates and it cannot, and once

you do that, it leads to a creeping and eroding of the legitimate rights, the

legitimate obligation of a prison staff to be everywhere, to be informed, to

be alert.” J.A. at 3111. Similarly, Annabelle Romero, who worked as a

consultant for the DOJ in connection with the USA Lawsuit, described the

shades for cell windows as “a Band-Aid approach” that prevents officers

from “accomplishing 100 percent of their duties” and “creates a security

hazard for both the officers and the inmates.” J.A. at 3373-74. Likewise,

art

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whether true or not, create a “poisoned atmosphere” that

. . 9 .

breeds misconduct on the part of inmates and guards.”’ Third,

many male officers, afraid of false accusations of sexual

Director Martin testified that “[a]ny time you put barriers in a facility

from observation, direct observation, it puts | think inmates and staff at

certain risk. For instance, if a window curtain is up on a cell door and an

officer, male or female, it doesn’t matter, can’t see in, there’s no way we

can intervene in a suicide attempt because we don’t know that’s going on.

We just don’t know what’s behind it, and it seems contrary then to other

recommendation that you put windows in other doors [so] that you can

always see in.” R. 114, Tr. at 166. Finally, Joan Yukins, the warden of the

Scott Facility, criticized “t[ying] the hands of male corrections officers in

the housing units” by means of the shades for cell windows and the

moratorium on “pat-down” searches. R. 119, Tr. at 33. She stated that she

thought “we can function better in those housing units with females in

there being able to look over the curtains, go into bathrooms, go into the

showers if necessary, pat down the prisoners in the housing units where

they live.” J.A. at 3620.

** Michael J. Mahoney, an expert for the DOJ in the USA lawsuit and

the author of the Mahoney report, testified that “(t]he nature of [the]

atmosphere in the correctional facility really relies upon the relationship

between staff and prisoners, and allegations even when falsely made and

in some cases particularly when falsely made can have a negative impact

on that kind of an atmosphere. It increase[es] friction. It increases

mistrust. It puts both staff and inmates into a ‘we and they’ game, and |

think in those situations it only serves to . . . reduce[] the positive

correctional atmosphere and increases the potential of fear, of negative

inferences.” J.A. at 3242. Relatedly, Patrick McManus, a corrections

consultant responsible for monitoring the MDOC’s compliance with the

USA agreement, testified that “prisons need to have a level of trust,

confidence, comfort between staff and prisoners if they are going to

function well,” and that “it was in [the housing units] that the mistrust, the

fear between the female prisoners and the male staff, was the most

prominent and where it was likely to be the most corrosive.” J.A. at 3090.

Similarly, Director Martin testified that allegations create “friction

between staff and prisoners that is counterproductive to safety and

security in the prison.” J.A. at 3290. Finally, Yukins testified that

“allegations of sexual misconduct by female [inmates] on the male

officers ha[ve] a very detrimental effect to the institution and to the

employees and the prisoners.” J.A. at 3614.

30a

abuse, become “gun-shy” and fail to monitor and discipline

inmates in a proactive fashion.”*

Giving due deference to the judgment of the MDOC, we

agree that the MDOC’s plan will significantly enhance

security at the MDOC’s female facilities. Support for the

MDOC’s position comes from Dothard v. Rawlinson, 433

U.S. 321 (1977), in which the Supreme Court held that the

male gender was a BFOQ for prison guards in Alabama’s

maximum-security men’s prisons. The environment in Ala-

bama’s penitentiaries was, in the words of the Court, “a

peculiarly inhospitable one for human beings of whatever

sex,” characterized by “rampant violence” and a “jungle

*4 George E. Sullivan, a corrections professional who had served as an

expert for the DOJ in the USA lawsuit, testified that, in conversations with

male officers at the Wayne Facility, the officers “were very candid in

expressing their serious concerns, seeming even fearful of doing their jobs

in the women’s housing units risking a sexual harassment charge against

them by female inmates. ‘How could | explain such a charge to my wife

or family,’ asked one of them.’” J.A. at 3223. He opined that “male staff

generally in women’s prisons around the country, and especially at

Western Wayne, do not, and will not (and in my opinion should not)

conduct the security searches and procedures necessary to assure control

over escape devices, weapons, illicit drugs, drug paraphernalia, and other

serious contraband within the living spaces of female inmates. As a

simple matter of their own self-consciousness and modesty, most male

staff are very reluctant to search women’s garments, personal care/

sanitary items, observe them nude in showers or while using toilets.” J.A.

at 3224-25. Likewise, Camp testified that male officers “are tentative, that

they are perhaps reluctant to engage female prisoners in a way that they

would males to find out what was going on in a professional way, to be

alert to the events in the institution or in the housing unit, to make

rounds.” J.A. at 3134. Finally, Mahoney testified that “[i]n order to run-a

facility, you have to supervise prisoners, and that requires observation on

a regular basis. When staff may feel reluctant, particularly male staff, to

view females in a state of undress, in the use of toilet facilities, in

dressing, and other kinds of situations, they may reluctantly, not pursue

vigorously their supervision requirements because of the natural reluc-

tance to not do that.” J.A. at 3243.

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atmosphere.” /d. at 334 (internal quotations omitted). Noting

that inmates were housed in dormitories rather than cells, that

inmates were not segregated according to their offense or

level of dangerousness, and that an estimated 20% of inmates

were sex offenders, the Court found “a basis in fact for

expecting that sex offenders who have criminally assaulted

women in the past would be moved to do so again if access to

women were established within the prison,” and it spotted “a

real risk that other inmates, deprived of a normal heterosexual

environment, would assault women guards because they were

women.” /d. at 335. The Court concluded,

The likelihood that inmates would assault a woman

because she was a woman would pose a real threat not

only to the victim of the assault also to the basic control

of the penitentiary and protection of its inmates and

other security personnel. The employees very woman-

hood would thus directly undermine her capacity to

provide the security that is the essence of a correctional

counselor’s responsibility.

Id. at 336. Similarly, in the instant case, a “basis in fact”

exists that “privacy screens” preclude proper surveillance

of inmates and that allegations of sexual abuse engender

hesitancy in male officers and mistrust between inmates and

guards, and thus the “very manhood” of male COs and RUOs

undermines their capacity to provide security.

The safety of inmates also indisputably relates to the

essence of the MDOC’s business, and the MDOC believes

that it must eliminate males from the CO and RUO positions

in the housing units in order to safeguard female inmates

from sexual abuse. The defendants state that males perpetrate

most of the sexual abuse in its female facilities, noting that,

according to the plaintiffs’ calculations, between 1994 and

2000, 189 of 208 allegations of sexual misconduct—includ-

ing all of the sustained allegations—were made against male

(officer and non-officer) employees, while the remaining 19

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allegations were made against female employees or non-

employees. J.A. at 700. The defendants also claim that sexual

abuse most frequently occurs in the housing units, noting that,

according to the MDOC’s figures, 39% of the allegations of

sexual misconduct arose in housing units, and that, according

to the testimony of a MDOC expert, 57% of “alleged

incidents” occurred in housing units. MDOC Br. at 8-9; R.

112, Tr. at 82. The defendants further argue that corrections

officers commit a majority of the sexual abuse, noting that,

according to the plaintiffs’ figures, 125 of 208 allegations of

sexual misconduct were lodged against male officers. J.A. at

700. Finally, while conceding that the vast majority of male

COs and RUOs conduct themselves professionally, the

MDOC contends that it cannot predict which officers will

engage in sexual abuse.

The MDOC has established that the exclusion of male COs

and RUOs from the housing units will decrease the likelihood

of sexual abuse. As we have emphasized, the MDOC’s

decision receives “substantial weight,” Torres, 859 F.2d at

1532, and, given the severity of the harm to sexually abused

inmates, the MDOC may set “more stringent” qualifications

for officer positions. Harriss v. Pan Am. World Airways, Inc.,

649 F.2d 670, 676 (9th Cir. 1980) (quoting Usery v. Tamiami

Trail Tours, Inc., 531 F.2d 224, 236 (Sth Cir. 1976)). As the

data cited above shows, some male officers possess a trait

precluding safe and efficient job performance—a proclivity

for sexually abusive conduct that cannot be ascertained by

means other than knowledge of the officer’s gender, and thus

gender was “a legitimate proxy” for a safety-related job

qualification. Cf’ Western Air Lines, Inc. v. Criswell, 472 U.S.

400, 414-15 (1985) (applying “legitimate proxy” standard in

an ADEA case. As the Ninth Circuit found in analogous

circumstances, MDOC’s decision to designate certain posi-

tions as female-only was “a reasonable response to concerns

about inmate privacy. and allegations of abuse by male

33a

[officers].”” Robino v. Iranon, 145 F.3d 1109, 1111 (9th Cir.

1998).

The district court erred in concluding that the safety

interests of female inmates did not support a BFOQ. The

court reasoned that the MDOC’s plan was not reasonably

necessary because the MDOC had only recently implemented

the reforms mandated by the USA and Nunn agreements,

because improper conduct had decreased since the imple-

mentation of the reform, and because only a minuscule

percentage of male officers sexually abuse inmates.”° Everson,

222 F. Supp. 2d at 894-95. Further, the court relied on the

lack of effort “to enhance pre-employment screening of new

CO’s and RUO’s to lessen the likelihood of employing high

risk male CO’s and RUO’s in the female prisons.” /d. at 895.

The district court applied too restrictive a standard in

rejecting the MDOC’s safety-based argument. Apparently,

the court thought that the MDOC could establish a BFOQ

only by showing that “all, or substantially all, males are not

able to perform safely and efficiently the duties of a CO and

RUO in the housing units in the female prisons.” /d.

However, as discussed above, the “all or substantially all”

standard represents just one formulation of the “reasonable

necessity” requirement, and the “impossible or highly im-

practical” standard better suits the instant case. No amount of

sexual abuse is acceptable, and, given the gravity of the harm

visited on the victims of sexual abuse, the MDOC permissibly

*S The district court found that allegations of “improper conduct”

declined from 57 in 1998 (22 of which were sustained), to 40 in 1999 (of

which 3 were sustained), to 25 in 2000 (none of which were sustained).

Everson v. Mich. Dep't of Corr., 222 F. Supp. 2d 864, 887 (E.D. Mich.

2002). The court did not identify the source of this data, define what

constitutes “improper conduct,” or explain whom the allegations were

made against. /d. The plaintiffs state that, between 1994 and 2000, only

1.3% of the total number of male officers were involved in sustained

allegations of sexual misconduct. Everson Br. at 39.

34a

eschewed the “wait-and-see” approach commended by the

district court. None of the parties claims that the reforms

mandated by the USA and Nunn agreements will completely

eradicate sexual abuse, and the MDOC acted within the

narrow confines of the BFOQ defense when it undertook a

policy reasonably calculated to bring sexual abuse to an

irreducible minimum.

The district court also erred in concluding that pre-

employment screening constituted a reasonable alternative to

a female BFOQ. Harley Stock, an expert for the plaintiffs,

testified that the MDOC could reduce its risk of hiring

applicants likely to engage in sexual abuse by instituting

psychological testing and making other changes in its pre-

employment screening. However, Stock conceded that (1) the

tests he proposed do not measure a subject’s proclivity for

sexual abuse specifically, but instead place subjects into high

risk categories that “might include such things as inap-

propriate sexual behavior” or assess “the ability to relate to

members of the opposite sex,” (2) he had not conducted

follow-up studies to assess the accuracy of his testing

methods, (3) his proposed testing is valid only for a year, and

(4) he saw the testing of current employees as a “problem.”

R. 116, Tr. at 40-43, 47, 54-55. Given its speculative value,

and its limited applicability, testing does not qualify as a

reasonable alternative to gender-specific assignments.

The privacy rights of Michigan’s female inmates also

weigh in favor of a BFOQ. “Prison walls do not form a

barrier separating prison inmates from the protections of the

Constitution.” Turner, 482 U.S. at 84. “Thus, while inmates

may lose many of their freedoms at the prison gate, they

retain ‘those rights [that are] not fundamentally inconsistent

with imprisonment itself or incompatible with the objectives

of incarceration.’” Covino v. Patrissi, 967 F.2d 73, 77 (2d

Cir. 1992) (quoting Hudson v. Palmer, 468 U.S. 517, 523

(1984)). Our court has recognized that “a convicted prisoner

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35a

maintains some reasonable expectations of privacy while in

prison, particularly where those claims are related to forced

exposure to strangers of the opposite sex, even though those

privacy rights may be less than those enjoyed by non-

prisoners.””° Cornwall v. Dahlberg, 963 F.2d 912, 916 (6th

Cir. 1992); see also Kent v. Johnson, 821 F.2d 1220, 1227

(6th Cir. 1987) (assuming that “there is some vestige of the

right to privacy retained by state prisoners and that this right

protects them from being forced unnecessarily to expose their

bodies to guards of the opposite sex”). As one of our sister

circuits has explained, most people “have a special sense of

privacy in their genitals, and involuntary exposure of them in

the presence of people of the other sex may be especially

demeaning and humiliating. When not reasonably necessary,

°° This court has found the “privacy” right against the forced exposure

of one’s body to strangers of the opposite sex to be located tn the Fourth

Amendment. Cornwall v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992);

Kent v. Johnson, 821 F.2d 1220, 1226 (6th Cir. 1987). Other courts have

described this rightas a liberty interest guaranteed by the Due Process

Clause of the Fourteenth Amendment. Sepulveda v. Ramirez, 967 F.2d

1413, 1415 (9th Cir. 1992) (relying upon Grummett v. Rushen, 779 F.2d

491 (9th Cir. 1981)); York v. Story, 324 F.2d 450, 455 (9th Cir. 1963);

Rushing v. Wayne County, 462 N.W.2d 23, 30 (Mich. 1990). Additionally,

under certain circumstances, the invasion of an inmate’s bodily “privacy”

can violate the inmate’s Eighth Amendment rights. For example, in

Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc), the

court held that a cross-gender clothed body search policy at a women’s

prison in Washington state constituted cruel and unusual punishment

because many of the inmates had histories of sexual or physical abuse by

men and because cross-gender bodily searches, even if conducted

properly, would likely inflict psychological trauma on many of these

inmates. Similarly, in Kent, 821 F.2d at 1227-28, this court held that a

male inmate had stated a claim under the Eighth Amendment for purposes

of Rule 12(b)(6) of the Federal Rules of Civil Procedure by alleging that

“female prison guards have allowed themselves unrestricted views of his

naked body in the shower, at close range and for extended periods of time,

to retaliate against, punish and harass him for asserting his right to

privacy.”

36a

that sort of degradation is not to be visited upon those

confined in our prisons.” Lee v. Downs, 641 F.2d 1117, 1119

(4th Cir. 1981); see also York v. Story, 324 F.2d 450, 455 (9th

Cir. 1963) (“We cannot conceive of a more basic subject of

privacy than the naked body. The desire to shield one’s

unclothed figure from view of strangers, and particularly

strangers of the opposite sex, is impelled by elementary self-

respect and personal dignity.”).”’

Courts have recognized that this privacy interest can justify

the exclusion of male officers from certain positions in

female prisons. In Robino v. lIranon, a Hawaii women’s

correctional center asserted that the female gender was a

BFOQ for 6 out of 41 corrections officer positions at a

women’s correctional center because the restriction was

reasonably necessary to accommodate the privacy interests of

the inmates, and to reduce the risk of sexual conduct between

the officers and inmates. 145 F.3d 1109, 1110 (9th Cir. 1998).

The positions at issue raised privacy concerns in that they

were “residential” and required the officer on duty “to

observe the inmates in the showers and toilet areas for the

prison’s own security or provide[d] unsupervised access to

the inmates.” /d. at 1111. Accepting the BFOQ argument, the

court found the policy “a reasonable response to the concerns

?” Of course, as important this right may be, it must yield to the needs

of prison administration. Thus, courts evaluate prison policies that

infringe on the privacy rights under a “rational relationship” that provides

that a policy is valid if “reasonably related to legitimate penological

interests.” Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992) (quo-

ting Turner v. Safley, 482 U.S. 78, 89 (1987)). Factors to consider in

applying this standard include, “(1) whether there is a valid, rational

connection between the prison policy and the legitimate governmental

interest . . . ; (2) the existence of alternative means for inmates to exercise

their constitutional rights; (3) the impact that accommodation of these

constitutional rights may have on other guards and inmates, and on the

allocation of prison resources; and (4) the absence of ready alternatives as

evidence of the reasonableness of the regulation.” /d. at 917.

37a

about inmate privacy and allegations of abuse by male

[officers].” /d. Similarly, in Tharp v. lowa Department of

Corrections, the court upheld a policy that assigned only

female officers to the women’s unit of a mixed-gender

minimum security prison in lowa. 68 F.3d 223, 224 (8th Cir.

1995). Among other duties, the officers conducted room

searches, urinalysis tests, and strip and pat-down searches of

inmates, though only female staff—either female officers or,

if none were available, less trained female staff—conducted

urinalysis and personal searches. /d. Without even reaching

the BFOQ issue, the court deemed the policy a “reasonable

gender-based job assignment policy” because, among other

things, it addressed “female inmate privacy concerns.” /d. at

226; see also Carl v. Angelone, 883 F. Supp. 1433, 1442 n.3

(D. Nev. 1995) (stating that a BFOQ might be justified on the

ground of “simple decency in order to afford female inmates

as much privacy as possible, even if not constitutionally

mandated or protected”).”*

The MDOC’s policy similarly advances the privacy inter-

ests of Michigan’s female inmates. The housing unit serves as

inmates’ “home,” the place where they “let their hair down”

and perform the most intimate functions like “like showering,

using the toilet, dressing, even sleeping.” J.A. at 3089, 3371.

In the housing units, inmates spend a great deal of time in

close contact with the officers, who supervise “the most

intimate aspects of an inmate’s life in prison, what time they

go to sleep, where they sleep, when they get up, brush their

teeth, use the restroom, shower, dress.” J.A. at 3369; see also

?* We note that courts have identified “privacy” as a basis for a BFOQ

in other contexts as well. See, e.g., Healey v. Southwood Psychiatric

Hosp., 78 F.3d 128, 133 (3d Cir. 1996) (child care specialist at psychiatric

hospital); Hernandez v. Univ. of St. Thomas, 793 F. Supp. 214, 218 (D.

Minn. 1992) (janitor in female dormitory); Local 567 Am. Fed. of State,

County, & Mun. Employees v. Michigan Council 25, 635 F. Supp. 1010,

1014 (E. D. Mich. 1986) (attendants at mentai health care facility).

38a

J.A. at 3291, 3368. Inmates must request sanitary napkins and

other personal items from the officers. J.A. at 3565. Given

these circumstances, the MDOC,. in Martin’s words, deter-

mined that “sound correctional practices” and “simple human

decency” dictated the exclusion of males from CO and RUO

positions in the housing units. J.A. at 3292.

The MDOC has instituted “privacy screens” to address the

most severe invasions of privacy, but these measure are not

failsafe. The MDOC has provided inmates with screens for

their cell windows, but these screens do not cover the entire

window and a male of “average height” can see over them.

J.A. at 3147; see also J.A. at 3154. Officers can also see over

the doors on the toilet stalls. J.A. at 3531. Opaque curtains

shield inmates from view while they shower, but they are

exposed when they reach outside the stall for a towel. R. 118,

Tr. at-170, 242; see also R. 120, Tr. at 33-34; J.A. at 3564.

Finally, although male staff are required to knock and an-

nounce before entering places where female prisoners are

likely to be in a state of undress, such as a bathroom or a

shower facility, the “announcements” are frequently inaudible

to the inmates. R. 118, Tr. at 243; J.A. at 3378. Thus, even

with these privacy screens, prurient male officers have ample

opportunity to gaze upon inmates in a state of undress, and

even the most professional officers are liable to intrude on the

privacy of inmates unintentionally. Moreover, these privacy

screens do not address the fear of unwanted viewing experi-

enced by many inmates, some of whom have a history of

physical or sexual abuse by men.

The MDOC has made a reasonable determination that its

plan will protect the privacy rights of its female inmates.

Regardless of whether its current conditions violate the

constitutional rights of its inmates, a prison may invoke the

BFQQ defense to justify measures taken to enhance inmate

privacy. Robino, 145 F.3d at 1111; Carl, 883 F. Supp. at 1442

39a

n.3. Thus, the goal of “privacy” provides support for the

MDOC’s BFOQ defense.

In rejecting the MDOC’s privacy-based argument, the

district court erroneously determined that inmate privacy did

not go to the “essence” of the MDOC’s business. The court

found that “there is nothing in any publication of the MDOC

to suggest that the ‘privacy of prisoners, especially female, as

the term is conventionally used, is a mission of the MDOC.’”

Everson, 222 F. Supp. 2d at 878. But, as quoted a few pages

earlier in the court’s opinion, the “position descriptions” for

the CO and RUO positions state that the “goal is to provide a

safe, clean, secure, and efficient living environment while

respecting the privacy of female prisoners, and enforcing

rules and regulations.” /d. at 867; J.A. at 3737, 3744, 3756

(emphasis added). Additionally, in his report, Mahoney stated

that the MDOC has hired him “to determine whether certain

custody positions at . . . women’s facilities should be filled

only by female custody staff or if there is a less intrusive

means to ensure the safety and reasonable privacy needs of

female inmates.” J.A. at 1426 (emphasis added). More im-

portantly, when determining whether a particular job quali-

fication relates to the “essence” of the employer’s business, a

court must undertake a functional analysis of the employer’s

business, and not simply look to the employer’s mission

statement or other documentation. Here, given the MDOC’s

legal responsibility to safeguard the privacy rights of its

inmates, Director Martin’s statement that respecting the

privacy interests of female inmates represents “sound cor-

rectional practice” and “basic human decency,” and our

common-sense understanding of corrections practice, it is

beyond cavil that “privacy” relates to the essence of the

MDOC’s business.

In rejecting the MDOC’s argument for a BFOQ, the district

court stressed that the MDOC’s plan departed from national

norms. The court found that “standard practices nationwide

40a

provide for the employment of male corrections officers in

female prisons” and that “there is nothing unique about the

operation of the female prisons in Michigan.” Everson, 222 F.

Supp. 2d at 893. The court further found that “the published

literature on the presence of male correctional officers in

female prisons does not support a female BFOQ for correc-

tions officer in the housing units in a female prison.” /d. at

894. In short, the court reasoned that, because the MDOC’s

plan deviated from standard practice, the plan was not

reasonably necessary to the normal operation of Michigan’s

female prisons.

The district court committed legal and factual error by

using standard practice as a yardstick for the reasonable

necessity of the MDOC’s plan. In determining whether

gender-based discrimination constitutes a BFOQ, a court

must examine the particular circumstances of the individual

employer, and not simply rely on generalizations about an

industry or a group of employers, as the district court did. See

Dothard, 433 U.S. at 336 n.23; Torres, 859 F.2d at 1529.

Additionally, “appraisais need not be based on objective,

empirical evidence, and common sense and deference to

experts in the field may be used” to establish a BFOQ. Healey

v. Southwood Psychiatric Hosp., 73 F.3d 128, 132 (3d Cir.

1996); see also Torres, 859: F.2d at 1531; cf Wittmer v.

Peters, 87 F.3d 916, 920 (7th Cir. 1996) (substantial deference

accorded to experts in a constitutional challenge to state’s

hiring preference for African-American lieutenants in penal

boot camp). Both of these precepts are especially true where

the employer is a prison administrator that “must be allowed

to adopt innovative solutions to the intractable problems of

prison administration.” Torres, 859 F.2d at 1529 (quoting

Turner v. Safley, 482 U.S. 78, 107 (1987)). Placing the

straightjacket of standard practices on prison officials, as the

district court did, would deprive of them of the ability “to

innovate and experiment,” to the detriment of the inmates and

society in general. /d.

4la

In addition to this legal error, the district court clearly erred

in finding “nothing unique” about Michigan’s female prisons.

In reaching this conclusion, the district court inexplicably

failed to address Michigan’s deplorable record regarding the

care of its female inmates, which, absent evidence to the

contrary, we must assume sets it apart from other states. In

light of- the endemic problem of sexual abuse, it was in-

cumbent upon the MDOC to act decisively and creatively,

and the lessons of Torres apply with special force. As Martin

testified, and as we agree,

the [MDOC’s] plan to assign only females in the

housing units . . . challenges the thinking of the past 15

years or so that officers are officers and prisoners are

prisoners no matter what their gender, but the [MDOC’s]

staff and prisoners have paid a high price for going along

with this conventional wisdom and I believe that I

should be given the flexibility to exercise my best

judgment on staffing the housing units to make our

female prisons as safe and secure as they can be for the

staff, the prisoners, and the public.

J.A. at 3295. In brief, given the case-by-case nature of the

BFOQ analysis, the flexibility afforded prison administrators,

and the MDOC’s unique history, the lack of a national con-

sensus does not mean that the female gender is not a BFOQ

for CO and RUO positions in Michigan’s female prisons.

The district court also erred in finding that there are

“reasonable alternatives” to the MDOC’s plan. As noted

above, an employer invoking the BFOQ defense has the

burden of establishing that there are no reasonable alter-

natives to discrimination. Reed, 184 F.3d at 600. In addition

to pre-employment screening, which is discussed above, the

district court identified the following alternatives to female-

only staffing of the CO and RUO positions in the housing

units: covering vacancies with females; increasing female

coverage where necessary with overtime; redeployment of

42a

female officers in supervisory positions; and eliminating the

policy that each CO and RUO conduct five pat-down

searches per shift. Everson, 222 F. Supp. 2d at 895.

The MDOC has demonstrated that the district court erred

in deeming these proposals “reasonable alternatives” to

gender-specific staffing. First, the proposal to fill vacancies

with female officers is simply a watered-down version of the

MDOC’s plan; the district court did not explain why it is

permissible under Title VII to move to female-only staffing-

in the housing units through attrition but not through the

immediate transfer of males to other positions. Second,

increasing coverage with overtime is self evidently expensive

and inefficient. In fact, the Securicor study—the source of the

proposal stated that increasing coverage with overtime “is not

a satisfactory long-term solution” for many reasons, including

“the amount of time spent by supervisors to schedule over-

time, staff burnout, and decreased staff effectiveness, as well

as the fiscal cost of overtime.” J.A. at 989; see Reed, 184 F.3d

at 600 (holding that an option that would place “financial

strains” on a county jail by requiring the payment of over-

time, and that would “cause fatigue” in a jail employee, was

not a reasonable alternative). Third, neither the district court

nor the plaintiffs have explained how the redeployment of

female supervisors to the housing units at the female prisons

would cure problems stemming from the very presence of

male COs and RUOs in the housing units. Fourth, the MDOC

has already instituted a moratorium on pat-downs of female

inmates by male officers, so this measure would not increase

inmate safety or privacy. Moreover, the moratorium on

pat-down searches impairs the ability of the male officers

to protect the security of the prison and the safety of the

inmates.

Before concluding, we emphasize the limited nature of our

holding. We do not hold that gender constitutes a BFOQ for

corrections officers in female prisons outside of Michigan.

43a

Nor do we hold that gender constitutes a BFOQ for positions

in Michigan’s female prisons beyond the approximately 250

positions we have discussed. Nor do we have occasion to

address whether the male gender can ever be a BFOQ for

a corrections officer position at a male prison. Rather, we

simply conclude that, given the endemic problem of sexual

abuse in Michigan’s female facilities, given the constellation

of issues addressed by the MDOC’s plan (security, safety,

and privacy), and given the deference accorded the MDOC’s

judgment, the MDOC’s plan is reasonably necessary to the

normal operation of its female prisons.

CONCLUSION

The district court prefaced its decision with a famous

quotation from Alexis de Toqueville: “There is hardly ever a

political question in the United States which does not sooner

or later turn into a judicial one.” Everson, 222 F. Supp. 2d at

865 (quoting Democracy in America 248 (J.P. Moyer & Max

Lerner eds., Harper & Row 1996) (1832)). This apothegm

indeed illuminates the present dispute, though not in the

manner suggested by the district court. The MDOC’s appeal

is before this court not because Director Martin “made a

decision and tried to translate the decision into a courtroom

judgment,” id. at 899, but rather because, among other errors,

the district court failed to accord proper deference to the

decision of a state political actor, the MDOC, when indi-

viduals challenged that decision by filing suit in federal court

rather than through the political process. For this reason, and

for the other reasons discussed above, we REVERSE the

judgment of the district court and REMAND with instructions

to dismiss the complaint.

44a

DISSENT

RONALD LEE GILMAN, Circuit Judge, dissenting. | dis-

agree with the majority’s conclusion that being a female is a

bona fide occupational qualification (BFOQ) for approxi-

mately 250 Correctional Officer (CO) and Residential Unit

Officer (RUO) positions in prisons for women inmates man-

aged by the Michigan Department of Corrections (MDOC).

In reaching its conclusion, the majority repeatedly stresses the

importance of giving “due regard to the professional

judgment of the MDOC.” Although the judgments of prison

officials are “entitled to substantial weight when they are the

product of a reasoned decision-making process, based on

available information and experience[,]” Torres v. Wis. Dep't

of Health & Soc. Servs., 859 F.2d 1523, 1532 (7th Cir. 1988)

(en banc), the factual findings of the district court following a

bench trial are also entitled to substantial deference. Anderson

v. City of Bessemer City, 470 U.S. 564, 575 (1985).

The district court made several key findings of fact that I

believe have not been adequately considered by the majority.

First, the district court concluded that standard-practice in the

corrections field is to allow the employment of males in

female prisons, even though the male employees may be

limited in the scope of the tasks -that they are permitted to

perform. Second, the court found that internal studies by the

MDOC did not support the wholesale elimination of male

COs and RUOs from the housing units in the female prisons.

The studies recommended that various tasks be assigned on a

gender-specific basis and that the number of female COs be

increased in the female housing units, but they did not

recommend a female BFOQ for these positions. Third, the

court concluded that the professional concern over cross-

gender supervision in Michigan prisons was essentially

limited to that of Bill Martin, the then-current director of the

MDOC who requested the BFOQ certification. Martin was

not someone with extensive experience in prison policy and

45a

administration, nor did he consider the recommendations of

the department’s internal studies or consult with other senior

managers of the MDOC.

Despite these factual findings by the district court, the

majority has accepted the conclusion that gender is a BFOQ

in this case, a determination reached by Martin and “rubber-

stamped” by the MDOC without-consultation or study. Un-

like the situation in Robino v. Irano, 145 F.3d 1109 (9th Cir.

1998), upon which the majority relies, the MDOC did not

“conduct[ ] an extensive survey of post duties before deter-

mining which posts shouid be designated female-only.” /d. at

1111. The MDOC’s BFOQ determination, because it was not

the “product of a reasoned decision-making process, based on

available information and experience[,]” Torres, 859 F.2d at

1532, should be afforded less deference than we would other-

wise give the professional judgment of prison officials.

I also believe that the majority’s reliance on the Torres

decision is unjustified. At issue in Torres was whether the

district court erred in rejecting the prison officials’ contention

that a female BFOQ for correctional officer positions was

necessary to further the goals of inmate rehabilitation, security,

and privacy. 859 F.2d at 1526. The Seventh Circuit held that,

with respect to the goal of inmate rehabilitation, the district

court had erred in requiring the defendants to produce objec-

tive, empirical evidence of the need for a BFOQ, and re-

manded the case so that the district court could consider the

totality of the circumstances. /d. at 1532. But with respect to

the goals of security and privacy, the court affirmed the district

court’s determination that the various methods the prison had

adopted to address the privacy concerns of female inmates,

such as the use of “privacy cards” and limiting male guards’

observation of unclothed female inmates, had not undermined

prison security. Jd. at 1526, 1528. It explained that “the deci- —

sion of the district court that the defendants’ BFOQ plan

cannot be justified by concerns for prison security or for the

46a

basic privacy rights of the inmates is correct in law and fact.”

Id. at 1528 (emphasis added).

Here, however, the majority concludes that the female

BFOQ is necessary to advance the goals of prison security

and prisoner safety, even though the district court determined

that changes implemented as a part of the settlement agree-

ments referred to in the majority opinion—including the

“knock and announce” policy, restricting pat-down searches

of inmates by male staff, and limiting male officers’ views of

areas where inmates dress, shower, and use the toilet-—made

a female BFOQ unnecessary. Thus, although Jorres stands

for the proposition that the reasoned judgment of prison

officials should be given special consideration, it also

supports the district court’s conclusion that a female BFOQ is

not necessary or appropriate for the purposes of prison

security and privacy rights.

Finally, I believe that the district court was correct when it

called for the use of “a scalpel rather than a meat ax approach

to staffing tasks in the female prisons.” Everson v. Mich. Dept

of Corr., 222 F. Supp. 2d 864, 896 (E.D. Mich. 2002). A

reasonable alternative to the complete exclusion of males

from the CO and RUO positions is the assignment of sensi-

tive tasks to female correctional ‘officers. In concluding its

opinion, the district court held that

there is no justification for a blanket ban on employment

of male corrections officers in the female prisons of

Michigan. The MDOC has the right to limit certain tasks

in the female prisons to female corrections officers,

particularly to ensure female inmates’ rights to privacy[,]

bearing in mind at all times the security interest of the

corrections officers. .. . There are tasks in the running of

a female prison as has been explained above which

should not be performed by male correction officers

such as strip searches and body cavity searches. It should

not be difficult to define these tasks and adjust CO and

47a

RUO duties in the housing units in the female prisons

accordingly. Nothing in the decision here to deny the

BFOQ’s requirement should be read to prohibit the

MDOC officials from making gender specific task as-

signments. The vast majority of female prisons in the

United States appear to manage their populatiens safely

and efficiently and still comply with the requirements of

equal employment opportunity laws. Nothing im the rec-

ord here suggests the MDOC cau not do the same thing.

Id. at 898-99. I fully agree with this assessment.

Other courts that have addressed this precise issue have

reached the same conclusion. See, e.g., Forts v. Ward, 621

F.2d 1210,1216-17 (2d Cir. 1980) (affirming the portion of

the district court’s decision that balanced the conflict between

male guards’ employment rights and female inmates’ privacy

rights by “carefully tailored adjustments to either facilities or

work assignments[,]” and vacating that portion of the deci-

sion that categorically prohibited the assignment of male

guards to nighttime shifts); Gunther v. Iowa State Men’s Re-

formatory, 612 F.2d 1079, 1086 (8th Cir. 1980) (holding that

in order for a male prison to show that the hiring of women

for guard positions was unworkable, the prison “must also

demonstrate that it could not reasonably rearrange job respon-

sibilities in a way to minimize the clash between privacy

interests of inmates and the nondiscrimination principle of

Title VII’).

Given that gender-sensitive task assignment is a preferred

alternative to the wholesale exclusion of males from the

positions in question, I believe that the majority has erred in

holding that being a female is a BFOQ for those positions.

The fact that the overwhelming weight of judicial authority

agrees should make us all the more cautious in finding that a

BFOQ exists in this case. Accordingly, | would AFFIRM the

decision of the district court.

48a

APPENDIX D

UNITED STATES DISTRICT COURT

E.D. MICHIGAN

SOUTHERN DIVISION

No. 00-73133

ROSLYN EVERSON, RANDY FOX, STENNIS GEORGE,

BRENDA L. SEBASTIAN, and RICHARD IDEMUDIA,

Plaintiffs,

MICHIGAN DEPARTMENT OF CORRECTIONS,

Defendant,

and

LINDA NUNN AND TRACY NEAL, Intervening

Defendants.

July 11, 2002

DECISION

COHN, District Judge.

There is hardly ever a political question in the United

States which does not sooner or later turn into a judicial one.’

' Alexis de Toqueville Democracy In America 248 (J.P. Moyer and

Max Lerner eds., Harper & Row 1996) (1832).

IT.

IIT.

IV.

49a

TABLE OF CONTENTS

Page

PRIOR siete oie asians 867

A. Matera Cir Fie OORG eiiicicdiakicsicecncretinntibieenee 867

B. The Correctional Officer Positions ............. 867

C. TRERIEE FA OO crtnciiscstsiceecen etn 867

D. Decision And Preliminary Statement .......... 868

BSI cainaacccexdeantausonbeideontnnisi menial 868

2. Preliminary Statemnett.............cccccccccccsscses 868

The Statutes......... i cissabAnodahankoeshdica gumeea ibaa eae eamicoons 869

Ai, TRE Se aces ee ae 869

Ba’ OE RMIT s csicostsnterntvecacacmemaabaecanh 869

bi. ETI iicshinntecneetacinverecncanalian 869

SB. TG BE vicki ccetionainibonades 869

BREE MOY cise sinatscitestmerncnauiean 869

By FN RR oc nccciecasbieaceeeniaa cans 870

Precursors To The MDOC Effort To Make

Fie CI iiienctcccnttraioriiudatbeasn 870

A. The Untied Gishes Cae sissssscivscciiddictians 871

B. The Female Inmates Case..................:ccceeee 872

RRGGICUE FE TING TIN GM GD sisisiccinccsciniivaicacsnccensdssseeee 873

A. Gender Specific Assignment Committee..... 873

RD. EPROGROE 0 III ai ciicitnstiinisicisisinpanatbdcoataneyitts 874

C. The Application To The DCS....................... 876

The Case In Court Pre-Trial.........................cc000

Vi.

VIL.

VIII.

IX.

50a

TABLE OF CONTENTS—Continued

THRO ‘TERME .cscincsicisonesesssecctessnstennsasatshataiaiimimeaieid

A. TRB TOGUID cccccsessonsescsnetsttnteentiintbiiabiadmaiits

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CC. TRO WERRRRIOD ccccscecscctcssenstiscascsentunsshniciinectans

D. PPRIIITIR cscnntnccsasslinstincnabechidnmetasiiaibaidiian

Be TORRID scssnescisssinsrintipnintsanadianiaiiiie

3. Intervening Defendants...................:000008

DD. Tied ERT ID ceccsccesatisiscnssniiasbtdaneneditapanabniaiie

1. Plaintiffs’ Relevant Exhibits..................

2. Defendants’ Relevant Exhibits ..............

3. FORE TED cccccnctcscccsiactscvsttinnbesedntcebis

DORTTIIOS cncucscctcnicsntinnsensitiiguiinmagmnaseiainiaadeaandalaa

The Right Of Plaintiffs To Bring Suit................

TORO BP irnccisssnesnocsetnsrienssntaaatianaaieiienide

A, TRO. Law GORGIUEY scccetacsstnccccsincenesscesanseinstin

DB. FiO LOW PECUIEY cccccsccccccsssonssictteoemnesintone

1. Female Prison BFOQ...........csccsccsccccccseses

2. No Reasonable Alternative....................

3. Female Inmates Rights....................0000

F Bin csvceccctcrcasisdetnssoensectiabeibcammctnaiauicclsehtias

A. FRG ccsscccsscissecssvinisnindtidatasdactideanitunnnle

Sla

TABLE OF CONTENTS—Continued

XI. ‘The Intervening Female Inmates’ Case ............. 895

A. “The Harm To Plaintiffs Is Speculative

And At Most Minimal” ....................c:::00000 896

B. “Since Plaintiffs Do Not Contest The Right

Of MDOC To Make Gender Specific

Tasking Assignments MDOC Is Entitled

To Make The Tasks of CO And RUO’s In

The Housing Units Gender Specific” .......... 896

C. “Assigning Males To Housing Units

Solely To Achieve Gender Neutrality In

Employment And Without Regard To

Gender Differences Has Proven To Be A

SPIED cichpsnitcdiststihidcincisabanitephbcechitsialinnssasiceapate 896

D. “MDOC Is Obligated To Take All Rea-

sonable Steps To Prevent Abuses From

Continuing In The Female Prisons”’............. 897

E. “Making Gender A BFOQ For Female

Housing Unit Officers Is Reasonably

Necessary To Achieve MDOC’s Core

|g SESE EER PRONG rule ate Lee Oe LN REC Lem RAET 897

XII. National Profile of Corrections Officers In

SII IO IONE EN 898

ea, a i 898

52a

I. Introduction

A. Nature Of The Case

In this case, male and female corrections officers working

for the Michigan Department of Corrections (MDOC)

challenge the Michigan Department of Civil Service’s (DC sy

approval of the MDOC’s request to make female gender a

bona fide occupational qualification (BFOQ) for the positions

of Correctional Officer (CO) and Resident Unit Officer

(RUO) in the housing units in the female prisons in Mich-

igan.’ The challenge comes in the form of a request by five

CO’s and RUO’s” for a declaratory judgment that gender

specific assignment to the positions of CO and RUO violates

Section 703 of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-2(a), and Section 207 of Michigan’s Elliot-

Larsen Civil Rights Act, M.C.L. § 37.2202.

In response, the MDOC says that the BFOQ exception in

the statutes, found at 42 U.S.C. § 2000e-2(e)(1) and M.C.L.

§ 37.2208 applies to these positions, i.e. a gender specific

qualification (female) for the positions is reasonably neces-

sary to the normal operations of a female prison.

A group of female inmates in the custody of the MDOC are

also parties to the case as intervening defendants. They too

argue that only female correction officers should be permitted

in female prisons.°

> The Michigan Civil Service Commission, which heads the Depart-

ment of Civil Service, see M.C.L. § 16.301, was not involved in the

approval. The approval letters were signed by the Human Resources

Manager of the Bureau of Human Resources Services of DCS.

* There are currently three female prisons in Michigan: Scott Correc-

tional Facility (Scott), Western Wayne County Correctional Facility

(Western Wayne) and Camp Brighton.

* Plaintiffs’ motion for class certification, to which the MDOC has

responded, has not been acted on by the Court.

* Additionally, the American Civil Liberties Union Fund of Michigan,

53a

On September 28, 2000, the Court entered a temporary

restraining order against implementation of gender spe-

cific assignment of CO’s and RUO’s in Michigan’s female

prisons, which continues in effect.

B. The Correctional Officer Positions

The General Summary of Function/Purpose of Positions in

DCS language of a CO reads:

Responsible for custody and security in a female housing

unit. The goal is to provide a safe, clean, secure, and

efficient environment while respecting the privacy of

female prisoners, and enforcing rules and regulations.

The General Summary of Function/Purpose of Positions in

DCS language for an RUO reads:

Responsible for custody and security in a female housing

unit, as well as treatment responsibilities, primarily on

the day and afternoon shift. The goal is to provide a safe,

clean, secure, efficient living environment while respect-

ing the privacy of female prisoners, and enforcing rules |

and regulations.

C. Relief And Scope

Plaintiffs request the following relief:

A declaratory judgment that to make gender-based

assignments to the Corrections Officer positions, Resi-

dent Unit Officer positions, as well as rover and trans-

port positions at the Scott Correctional Facility, Western

Wayne Facility, and Camp Brighton Facility is unlawful

as a violation of the gender discrimination provision of

Title VII, the provisions of the Elliott-Larsen Act, and

the Women Lawyers Association of Washtenaw County, and the Ameri-

can Friends Service Committee jointly filed a brief amici curiae in support

of the MDOC’s and female inmates’ positions.

54a

the Equal Protection Clause of the Fourteenth Amend-

ment to the United States Constitution.°

On the date suit was filed, July 12, 2000, the MDOC

operated two female prisons: Florence Crane Corrections

Facility (Florence Crane), Scott and a female camp, Camp

Branch. At that time, the MDOC was in the process of

converting Western Wayne and Camp Brighton to female

only prisons and closing down Florence Crane and Camp

Branch. Approximately 267 CO and RUO positions are in-

volved overall, of which approximately 60% are male.’ A

subset of the CO and RUO positions are transportation

officer, intake officer, and rover.

D. Decision And Preliminary Statement

1. Decision

For the reasons which follow, which constitute the findings

of fact and conclusions of law required by Fed.R.Civ.P. 52,

the Court finds that plaintiffs are entitled to a declaration that

the MDOC has failed to sustain its burden that gender is a

BFOQ for CO and RUO’s in the housing units in female

prisons, that it is reasonably necessary to their normal

operations, and that there is no reasonable alternative to

employing female corrections officers in such positions. This

° This Decision ts limited to plaintiffs’ statutory claims.

’ There are 445 bargaining unit positions in the three female prisons.

Of the 445 positions, 267 positions are held by CO’s and RUO’s, of which

94 are CO’s and 174 are RUO’s. Approximately 70 to 75 male corrections

officers would be affected by the change. It is likely 23 would be

transferred to other prisons and the remaining 47 would be otherwise

affected. All of the 267 affected positions could lose opportunities for

overtime work and promotion. The MDOC has publicly stated it would

endeavor to keep dislocations to a minimum. The MDOC and the

Michigan Corrections Organization (MCO), SEIU Local 526M, AFL-

CIO, the bargaining agent for the corrections officers, have apparently

never engaged in any meaningful discussions about the proposed change.

55a

is not to say, however, that in the staffing of such positions

the MDOC may not, where security and personnel im-

plications are involved for both the CO’s and RUO’s and the

female inmates, exercise discretion to make female gender

specific assignments for certain tasks.”

2. Preliminary Statement

At the conclusion of trial, the Court made preliminary

findings which are memorialized in the Memorandum filed

March 23, 2001, stating:

The Court is dissatisfied with the record as it stands

now, as a basis for decision. The Court’s appointment of

an expert, under Fed.R.Evid. 706, is desirable to

examine, and report to the Court on, the privacy interests

of female prisoners. The parties are entitled to comment.

The proposed expert and scope of the expert’s activity

was named in the record, as well as the Court’s ex-

pectations of the expert witness. What is necessary for

the Court, in its decision, is to strike the right balance

among the following fundamental principles:

First, there should be no blanket ban on the em-

ployment of one sex in a prison for members of the

opposite sex;

Second, prison employees who are not permitted to

perform certain tasks because of their gender should

not suffer adverse consequences in their pay or bene-

fits, promotion opportunities, or job security;

* One of the themes running through this case are limitations imposed

by the collective bargaining agreement governing the affected corrections

officers and, indeed, most of the employees of the MDOC. Where security

and personnel implications are involved it does not seem that these limi-

tations should be a barrier. Dealing with this, however, is for another day.

56a

Third, gender classification should be used only where

there are no reasonable and adequate gender-neutral

means for advancing legitimate penal purposes; and

Fourth, there may be special circumstances in which

job assignments must be limited on the basis of

gender to insure inmates’ rights to personal security

and privacy.

See Memorandum, filed March 23, 2001, at p. 10-11.

The MDOC opposed the appointment of a court-appointed

expert and the Court did not follow through on obtaining an

expert. Consequently, the Court must decide whether or not

female gender is a BFOQ for full time corrections officers in

the housing units of the female prisons in Michigan based on

the evidence presented at trial. It does not go unnoticed that

this decision is being made in an adversary proceeding rather

than by an administrative decision on a fully informed record

subject to judicial review. As will be described, the DCS did

no more than rubber stamp the MDOC’s request for a BFOQ.

The Michigan Civil Rights Commission (MCRC), the state

agency nominally assigned the task of reviewing such a

request, was deliberately bypassed. This is a poor way to

establish prison personnel policies and forces a judicial

determination of a question that is, or should be, the result of

an informed and reasoned policy determination.

II. The Statutes

A. Basic Laws

1. Federal Law

42 U.S.C. § 2000e-2(a) reads:

It shall be an unlawful employment practice for an

employer—

(1) to fail or refuse to hire or discharge any individual,

or otherwise discriminate against any individual with

57a

respect to his compensation, terms, conditions, or

privileges of employment, because of such individ-

ual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive or otherwise adversely affect his status as an

employee, because of such individual’s race, color,

religion, sex, or national origin.

2. State Law

M.C.L. § 37.2202 reads:

(1) An employer shall not do any of the following:

(b) Limit, segregate, or classify an employee or applicant

for employment in a way which deprives or tends to

deprive the employee or applicant of an employment

opportunity, or otherwise adversely affects the status

of an employee or applicant because of religion, race,

color, national origin, age, sex, height, weight, or marital

status.

B. The Exemptions

1. Federal Law

42 U.S.C. § 2000¢e-2(e) reads:

Notwithstanding any other provision of this subchapter,

(1) it shall not be an unlawful employment practice for

an employer to hire and employ employees . . . on the

basis of his religion, sex, or national origin in those

certain instances where religion, sex, or national origin is

58a

a bona fide occupational qualification reasonably neces-

sary to the normal operation of that particular business

or enterprise. .. .

29 C.F.R. § 1604.2 elaborates on the exception reading in

part as follows:

(a) The [Equal Employment Opportunity Commission]

believes that the bona fide occupational qualification

exception as to sex should be interpreted narrowly.

Label—‘“*Men’s jobs” and “Women’s jobs”—tend to

deny employment opportunities unnecessarily to one sex

or the other.

2. State Law

M.C.L § 37.2208 provides for specific procedures to be

followed for an employer to obtain BFOQ status for a

particular employment position, stating:

A person subject to this article may apply to the

commission for an exemption on the basis that religion,

national origin, age, height, weight, or sex is a bona fide

occupational qualification reasonably necessary to the

normal operation of the business or enterprise. Upon

sufficient showing the commission may grant an ex-

emption to the appropriate section of this article. An

employer may have a bona fide occupational qualifi-

cation on the basis or religion, national origin, sex, age,

or marital status, height and weight without obtaining

prior exemption from the commission, provided that an

employer who does not obtain an exemption shall have

the burden of establishing that the qualification is

reasonably necessary to the normal operation of the

business.

59a

This section further states:

. . . An employer may have a bona fide occupational

qualification on the basis of religion, national origin,

sex, age, or marital status, height and weight without

obtaining prior exemption from the commission, pro-

vided that an employer who does not obtain an

exemption shall have the burden of establishing that the

qualification is reasonably necessary to the normal

operation of that business.

M.C.L. § 37.2208.

The MDOC, as an agency of the State of Michigan

is subject to the requirements of M.C.L. § 37.2202 and

the exemption provided for in § 37.2208. See M.C.L.

§ 37.2103(g) (defining “person” to include an “agency of the

state.’’).

Initially, it was represented to the Court that DCS Regu-

lation 3.05, Selective Certification For Position—Specific

Qualifications, established the procedure to be followed by a

state agency such as the MDOC in obtaining a BFOQ for a

particular position. However, the Court was subsequently

advised that this was not the case and that:

the officials [in the DCS] who approved the request

would have evaluated it with the standards of the Elliot-

Larsen Civil Rights Act’s exemption for bona fide

occupational qualifications in mind.’

There is no evidence in the record to suggest DCS did this

in evaluating MDOC’s request.'°

” See Letter from Assistant Attorney General to the Court, dated

March 29, 2002.

'° Attached as Exhibit A is the Michigan Department of Civil Rights’

application form for a BFOQ exemption.

60a

III. Precursors To The MDOC’s Effort

To Make The Change

The request to DCS by the MDOC “for selective cer-

tification to allow only female staff as Corrections Officer

and Resident Unit Officer positions with regular work

assignments in housing units, segregation unit, [and] the

intake unit [in the facilities} which house only female

inmates” was made on August 20, 2000. It followed shortly

after the settlements of two complex cases involving the

MDOC (the court cases) brought separately by the United

States (the United States case) and by a group of female

inmates (the female inmates case) in 1996 and 1997. A brief

summary of these cases follows. The complaints in these

cases focused on operations and incidents at Florence Crane

and Camp Branch.

A. The United States Case

On March 10, 1997, the United States sued the State of

Michigan in this district claiming that the constitutional rights

of female inmates in the female prisons in Michigan were

being violated in the form of sexual misconduct by male

corrections officers and that the female inmates were subject

to unlawful invasions of their privacy and that their serious

medical and mental health needs were not being met. United

States v. State of Michigan, No. 97-CV-71514.

After extensive discovery and a contentious course of in-

court proceedings,'' the medical and mental health claims

'' The Department of Justice met with severe criticism from various

state officials as its case moved forward. These officials generally claimed

that the Department’s charges were frivolous and represented an un-

warranted intrusion by the federal government into state affairs. See “U.S.

Alleges Sex Abuse of a Womnan at 2 Prisons State Official Blasts Findings

As Absurd,” Detroit Free Press, Mar. 30, 1995, at 1A. For another

example of the contentiousmess, see “Human Rights Watch Challenges

Michigan Subpoena To Reveal Confidential Information,” available at

http:// www.hrw.org/press98,/oct/michig!015 .htm.

6la

were dismissed. The remaining issues dividing the parties

were resolved in the form of a Settlement Agreement dated

May 25, 1999. The settlement agreement in essence pro-

vided for:

—pre-employment screening of correctional staff par-

ticularly to determine fitness to work in a female

prison

—-specialized training for the staff in the female prisons

—inmate orientation regarding the subject matter of the

settlement agreement

—facilitation of inmates and staff reporting of allega-

tions of sexual misconduct, sexual harassment and

eae ° v1

overfamiliarity. '

—timely and complete investigation of allegations of

sexual misconduct

—minimization of one-on-one access to secluded areas,

and the like, by male staff and female inmates

—effective response to substantiated instances of staff

misconduct

—a knock-and-announce policy by male staff in areas

\» ‘ere female inmates could be in a state of undress

—-severe restrictions or pat-down searches by male staff

of female inmates

'? Improper male staff-female inmate interaction is generally divided

into three categories of descending seriousness: (1) sexual misconduct

being the most severe and usually criminal; (2) sexual harassment which

is typically handled administratively; and (3) over-familiarization, which

may subject the offending correction’s officer to a letter of reprimand.

Improper conduct by staff in a female prison is not confined to CO’s and

RUO’s in the housing units. It is found among all male staff members and

there appears to be no firm evidence that it is principally found among the

CO’s and RUO’s in the housing units.

62a

—Department of Justice monitoring of the settlement

agreement to assure compliance and eventually

dismissal of the case

Nothing in the settlement agreement called for gender

specific assignment of CO’s and RUO’s in the housing units

in the female prisons.'* The settlement agreement recognized

that changes in policy which implicated bargaining unit

employees were subject to negotiation with the labor unions

representing such employees as well as the Office of State

Employees and the Civil Service Commission and subject to

state law.

The changes in policies and procedures, relating to

improper male staff-female inmate interaction, screening of

applicants, training and education, physical facilities and

reporting required by the settlement agreement have been

implemented. The changes are numerous and far reaching and

the consequences attendant upon these changes are yet to be

fully realized.

B. The Female Inmates Case

On March 27, 1996, a group of female inmates brought suit

in this district against the MDOC .and a number of state

officials and corrections officers claiming sexual misconduct

and sexual harassment in the female prisons. Nunn v.

Michigan Department of Corrections, No. 96-CV-71416.

Particularly, the plaintiffs claimed violations of the Fourth,

Ninth and Fourteenth Amendments under 42 U.S.C. § 1983

and asked for damages and injunctive relief. Again, after

extensive discovery and a contentious course, the case was

'* Human Rights Watch, which monitored the case, see n. 10, supra, in

a letter dated June 11, 1999, complained to Attorney General Janet Reno

that the settlement proposed in the case was inadequate. It did not,

however, suggest gender specific assignment. See “Letter to Attorney

General Janet Reno,” available at http://wwvv.hrw.org/press/1999/

juntreno-Itr 611.htm.

63a

settled, this time in two parts. First, plaintiffs’ monetary

claims were settled for $3,787,000.00 with $2,390,700.00

being distributed among 31 named female inmates. Second,

on July 31, 2000, the claim for injunctive relief was settled

substantially along the lines of the settlement agreement in

the United States case.

Significantly, however, the settlement agreement in the

female inmates’ case regarding injunctive relief included the

following statement:

Consistent with the MDOC’s announced intention to

limit the assignment of staff in facility housing units to

female officers, the MDOC will make a good faith effort

to accomplish this objective during the monitoring

period. If such efforts are still ongoing at the end of the

monitoring period, monitoring will be extended as to this

issue only for not more than two additional six month

periods. '*

IV. Request For The BFOQ

A. Gender Specific Assignment Committee

Sometime in 1998, the Director of the MDOC appointed a

'* The 2000 Annual Report of the MDOC available at http://www.

Michigan.gov/documents/2000annualreport—2420—7.pdf, describes in

some detail the settlement agreements, stating in part:

Both lawsuits have resulted in a number of major changes in the

way female prisoners and staff interact both in prisons and cor-

rections centers. They resulted in revisions to policies dealing with

sexual harassment and misconduct, including combining several of

these policies; screening of staff through LEN and other checks; a

requirement for male officers to “knock and announce” their

presence in any areas where inmates could be in a state of undress; a

committee to review retali

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