BFOQs have to be more than ‘cheap talk’

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There is one thing we all know about employment law: employers cannot deliberately exclude an individual from consideration from employment based upon the individual’s gender or other protected class. However, Title VII of the Civil Rights Act of 1964 carves out an express exception for circumstance where gender is a “bona fide occupational qualification” for the position. 42 U.S.C. § 2000e-2(e)(1). This is known as a “BFOQ.”

Last month, the Seventh Circuit visited issues regarding BFOQs in Henry v. Milwaukee County, 2008 WL 3853388 (7th Cir. August 20, 2008), as it reversed the district court’s finding that the Milwaukee County Juvenile Detention Center needed a BFOQ for its juvenile correction officers (JCOs).

The center is a detention facility that temporarily houses juveniles awaiting juvenile court proceedings. In 1991, a new superintendent of the center set about making changes to make the facility less prison-like. A new facility was built and completed five years later.

This new facility contained common rooms, classrooms and recreation rooms, along with living areas that were organized into seven single-sex sleeping pods.

Each pod accommodated 11 to 22 juveniles of the same sex. One pod was reserved for females. The other six pods housed males.

Prior to the new facility, the JCOs were assigned shifts without regard to their gender. With the new facility, the superintendent instituted a new policy that required that each pod be staffed at all times by at least one JCO of the same sex as the juveniles housed in the pod.

Because male pods outnumbered female pods six to one and because only one JCO was needed for each pod at night-time, far fewer female JCOs were allowed to work the third shift. This shift was perceived as the easiest, yet was also awarded the premium pay and afforded the most opportunities for overtime. This meant that female JCOs were not able to get the same number of overtime hours as they previously had received. Instead, male employees with less seniority were allowed to work the highly coveted third shift.

The center gave three reasons for the same-sex rule: (1) security issues, as the county expressed concern about sexual assault against female JCOs; (2) privacy issues of the detained juveniles; and (3) mentoring goals. The purpose of the third goal was to encourage JCOs to have greater interaction with the juveniles they monitored. The JCOs, along with other members of the staff, received basic training in mentoring, role modeling and child development in order to assist them in their interaction with the juveniles.

Two female Juvenile JCOs brought suit, challenging the same-sex policy. The county readily admitted that it had assigned positions on the third shift based on the employees’ sex; however, it asserted the BFOQ defense.

After a three-day bench trial, the district court concluded that the same-sex staffing policy on the third shift was permissible as a BFOQ. It found that “[t]he essence of the [center’s] business is to ensure and promote the care, rehabilitation, safety and security of the juveniles entrusted to its care.”

The court further concluded that “same gender role modeling furthers the twin goals of rehabilitation and security in the juvenile detention setting,” and that “[s]ame gender shift assignments serve to protect the privacy interests of the juvenile detainees.”

The Seventh Circuit reversed, rejecting the security and privacy reasons, as it held that there was no evidence to factually support either reason. While the county expressed concern about sexual assault, it acknowledged that no guard had ever been sexually assaulted by any juvenile in its care. Further, the privacy argument was rejected, in part, because the centers allowed JCOs of the opposite sex to monitor the pods during both of the daytime shifts, when the juveniles usually changed clothes and showered.

Additionally, the center could not show that any of the activities that could occur on the third shift could not, and did not, likewise occur during other shifts.

The third reason was also rejected, in part, because little, if any, counseling occurred during the third shift. Additionally, the Seventh Circuit found that the notion that the detainees would respond more positively to JCOs of the same sex was stereotyping in its own right. In a concurring opinion, Judge Frank Easterbrook called this rationale “cheap talk and unverifiable assertions.”

By its decision, the Seventh Circuit departed from a relatively well-developed body of case law concerning the application of the BFOQ defense to jailers and other prison officials.

See Torres v. Wisconsin Department of Health & Social Services, 859 F.2d 1523 (7th Cir.1988) (en banc) and Everson v. Mich. Dep’t of Corr., 391 F.3d 737, 748 (6th Cir. 2004).

The Henry court even noted that it had determined, in Torres, that the unique circumstances of the female prison at issue required prison administrators to “innovate and experiment” and that correctional facilities should be entitled to substantial deference in fashioning policies to assist rehabilitation. However, the Henry court found that this deference was not unfettered and that the employer was still obligated to present evidence proving that a particular gender classification is reasonably necessary to the employer’s business operations. In Henry, it held, it had not.

The Henry decision begs the question of just how narrow the BFOQ exception has become — and how narrowly it will be interpreted in the future. Correctional institution guard was one line of categorization for which a legitimate justification for sex-based classifications was recognized in the Seventh Circuit. And, while if the statistical evidence had been different, the Seventh Circuit might have reached the opposite conclusion, the fact remains that even this one line has been rendered even narrower.