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.
TABLE OF CONTENTS I. Introduction .............................................................867 A. Nature Of The Case ....................................................867 B. The Correctional Officer Positions ....................................867 C. Relief And Scope ......................................................867 D. Decision And Preliminary Statement ....................................868 1. Decision ...........................................................868 2. Preliminary Statement ..............................................868 II. The Statutes .............................................................869 A. Basic Laws ............................................................869 1. Federal Law ........................................................869 2. State Law ..........................................................869 B. The Exemptions ........................................................869 1. Federal Law ........................................................869 2. State Law ..........................................................870
III. Precursors To The MDOC Effort To Make The Change .........................870 A. The United States Case ................................................871 B. The Female Inmates Case ...............................................872 IV. Request For The BFOQ .....................................................873 A. Gender Specific Assignment Committee ..................................873 B. Director's Initiative .................................................874 C. The Application To The DCS ............................................876 V. The Case In Court Pre-Trial ..............................................878 VI. The Trial ................................................................879 A. The Issue .............................................................879 B. The Trial Generally ...................................................880 C. The Witnesses .........................................................880 1. Plaintiffs .........................................................880 2. Defendants .........................................................881 3. Intervening Defendants .............................................885 D. The Exhibits ..........................................................885 1. Plaintiffs' Relevant Exhibits ......................................886 2. Defendants' Relevant Exhibits ......................................886 3. Joint Exhibits .....................................................887 VII. Statistics ...............................................................887 VIII. The Right Of Plaintiffs To Bring Suit ....................................888 IX. The BFOQ .................................................................889 A. The Law Generally .....................................................889 B. The Law Particularly ..................................................889 1. Female Prison BFOQ .................................................889 2. No Reasonable Alternative ..........................................892 3. Female Inmates Rights ..............................................893 X. Findings .................................................................893 A. Facts .................................................................893 B. Reasonable Alternatives ...............................................895 C. Continued Incidents ...................................................895 XI. The Intervening Female Inmates' Case .....................................895 A. "The Harm To Plaintiffs Is Speculative And At Most Minimal" ...........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 Mistake" ............................................896 D. "MDOC Is Obligated To Take All Reasonable 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 Mission" ..........................897 XII. National Profile of Corrections Officers In Female Prisons ...............898 XIII. Conclusion ...............................................................898
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 (DCS)
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 necessary 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.
On September 28, 2000, the Court entered a temporary restraining order against implementation of gender specific 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:
The General Summary of Function/Purpose of Positions in DCS language for an RUO reads:
C. Relief And Scope
Plaintiffs request the following relief:
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 involved overall, of which approximately 60% are male.
D. Decision And Preliminary Statement
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 is not to say, however, that in the staffing of such positions the MDOC may not, where security and personnel implications 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:
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:
2. State Law
M.C.L. § 37.2202 reads:
B. The Exemptions
1. Federal Law
42 U.S.C. § 2000e-2(e) reads:
29 C.F.R. § 1604.2 elaborates on the exception reading in part as follows:
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:
This section further states:
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 Regulation 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:
There is no evidence in the record to suggest DCS did this in evaluating MDOC's request.
III. Precursors To The MDOC's Effort To Make The Change
The request to DCS by the MDOC "for selective certification to allow only female
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,
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 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 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:
IV. Request For The BFOQ
A. Gender Specific Assignment Committee
Sometime in 1998, the Director of the MDOC appointed a Gender Specific Assignment Committee (GSAC)
The Committee's Statement of the Problem read:
While the Mission Statement appears to suggest a study of both male and female prison staffing, its real concern was directed to the staffing of the female prisons.
The GSAC published an interim report on September 15, 1998 and a final report on December 11, 1998.
The GSAC, in its final report, made a number of recommendations regarding various tasks and the need to have staff assignments to these tasks on a gender specific basis. The GSAC did not, however,
In sum, the GSAC did not recommend a female BFOQ for CO and RUO's in the housing units on the first shift (6AM to 2PM) or the second shift (2PM to 10PM) and voted 4-2 against having female only CO and RUO's in the housing units on the third shift (10PM to 6AM).
B. Director's Initiative
Bill Martin (Martin) was appointed director of the MDOC sometime in early 1999.
Pat down searches of female inmates by male corrections officers is a particularly contentious issue in the administration of female prisons.
On October 13, 1999, Martin issued another Director's Office Memorandum, 2000-33A, further implementing policies required by the settlement agreements in the court cases, including:
On December 9, 1999, Martin formally announced his intention to remove "male officers" from the female prisons.
At the time he made his announcement, Martin was unaware of the GSAC's analysis and recommendations. Nothing in any internal memoranda of the MDOC such as reports from the wardens of the female prisons, special or monthly minutes of meetings between staff and female inmates, mention the desirability or need to remove male CO and RUO's from the housing units in the female prisons. There was no evidence offered at trial of any consultation by Martin with the Michigan Department of Civil Rights or the Attorney General of Michigan regarding the change.
On December 11, 2000, Martin approved a detailed policy directive styled "Prohibited Conduct In Facilities Housing Female Prisoners," directed to the "affirmative steps to guard against sexual harassment and sexual misconduct between prisoners and staff." In the directive, responsibility for overseeing and monitoring compliance with the terms of the settlement agreements in the court cases was assigned to the Special Administrator for Female Offenders Program.
On May 5, 2001, the 1990 Policy Directive
C. The Application To The DCS
Three applications to the DCS were filed on August 2, 2000 by the Personnel Director of the MDOC. Separate applications were filed for Scott, Western Wayne, and Camp Branch. At that time Florence Crane was in the process of closing down as a female prison and Camp Brighton had not yet opened. Each application described each particular CO and RUO position for which a BFOQ classification was requested. Each application stated:
Each application included a number of documents and particularly a Consultant/Expert Witness Report by Michael J. Mahoney,
Included in materials submitted with each application were expert witness reports from the court cases. These included the report of Kay Monaco, an expert witness in the female inmates case who stated in her recommendations:
Annabelle M. Romero,
The DCS approved the MDOC's applications 12 days later, on August 14, 2000, stating:
There is no evidence to suggest any meaningful consideration by the DCS of the applications, particularly any consultation with the Michigan Department of Civil Rights or the Attorney General of Michigan. Additionally, not explained was why the DCS granted selective certification in 2001 when it rejected a prior request by the MDOC for a BFOQ for six positions in 1985, stating:
The conclusion to be drawn from the speed with which the applications were approved, is that the DCS rubber-stamped the MDOC's requests.
Moreover, there is nothing in any publication of the MDOC to suggest that the "privacy of prisoners, especially female" as the term privacy is conventionally used, is a mission of the MDOC. Indeed, security, not privacy, is a more appropriate focus for a prison. See Dothard v. Rawlinson, 433 U.S. 321, 335, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977) ("the essence of a correctional counselor's job is to maintain prison security"). However, Martin, in his introductory letter to MDOC's 2000 annual report, states "What we're about is serving the citizens of Michigan with a cost-effective operation, one that manages convicted felons in a safe and humane manner."
V. The Case In Court Pre-Trial
A summary of the salient pre-trial events follows.
On September 5, 2000, two female inmates moved to intervene.
On September 20, 2000, plaintiffs moved for a preliminary injunction against "implementation [of the] plan to make gender-specific assignments and/or to allow any female staff to hold Correctional Officer and Resident Unit Officer positions with regular work assignments in housing units, segregation units and/or intake units at the Robert Scott, Western Wayne and Camp Branch Correctional Facilities."
At the hearing on the motion for preliminary injunction on September 22, 2000, the Court stated it would issue a preliminary injunction as requested and on September 28, 2000, entered a temporary restraining order, combining the trial on the motion for preliminary injunction with the trial on the merits and set an early trial date. A day before, on September 27, 2000, the Court approved the filing of a first amended complaint adding a third RUO as a party plaintiff.
On October 6, 2000, the Court bifurcated the claim against Martin in his individual capacity and stayed it pending resolution of the BFOQ issue, obviating the need to deal with his qualified immunity defense.
On October 13, 2000, the Court granted the female inmates the right to intervene to enable them to "participate in the defense of plaintiff's challenge to the gender-specific assignments in the housing and living areas of the Michigan women's prisons, including the right to appeal." See Memorandum And Order Granting Intervention, filed October 13, 2000 at p. 7.
On December 7, 2000, the Court bifurcated the issue of damages and stayed discovery pending resolution of the issue of liability. Plaintiffs waived their right to a jury on the issue of liability only.
VI. The Trial
A. The Issue
The sole issue at trial was the right of the MDOC to limit the CO and RUO positions in the housing units in the female prisons to females. CO and RUO's are the only correctional officer positions in the housing units whose job duties require a presence throughout the entire three eight-hour shifts each day.
While there were references on the record to intake, rover, and transportation officer positions, the selective certification sought by the MDOC from the DCS was for the CO and RUO positions. Presumably, intake, rover, and transportation officer positions are a subset of the CO and RUO positions. These positions were not discussed particularly at trial.
A subsidiary issue at trial was whether or not the plaintiffs have made out a prima facie case of an adverse employment action
B. The Trial Generally
The trial extended over nine days in February and March 2001. Testimony and exhibits were largely devoted to the benefits and burdens to female prison operations of limiting full-time housing officers in a female prison to females in light of the potential for sexual assault, sexual harassment and overfamiliarization when male corrections officers have custodial responsibility in the housing units. Also covered in the testimony was the spotted record of the MDOC in operating female prisons, particularly reflected the record made in the court cases and their settlements, as well as the privacy concerns involved when male corrections officers have custodial responsibility for female inmates. Since the DCS, acting on the request of the MDOC for selective certification proceeded ex parte, the record of its BFOQ consideration of the materials submitted to it reflected no substantive consideration, the trial was the first occasion at which the BFOQ issue was meaningfully debated.
C. The Witnesses
Plaintiffs called seven witnesses. They were:
The MDOC called eight witnesses. They were:
3. Intervening Defendants
Intervening defendants called six witnesses. They were:
All of the female inmates who testified expressed the opinion that male correctional officers in the housing units adversely affected their efforts to rehabilitate themselves. Their testimony replicated evidence in the female inmates case.
D. The Exhibits
Approximately 250 exhibits were received in evidence at trial. They 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.
1. Plaintiffs' Relevant Exhibits
Plaintiffs' relevant exhibits were:
— Civil Service Job Specification and the MDOC Position descriptions for CO and RUO's (Px4-5) — The MDOC request for selective certification (Px7-9) — The impact of female only CO and RUO positions in the housing units in the female prisons in Michigan (Px10) — Charts displaying sexual misconduct data 1994-2000 including allegations and dispositions in the female prisons (Px11) — Detailed summaries of sexual misconduct allegations and dispositions in the female prisons (1994-2000) (Px13) — The American Correctional Associations standards for Adult Correctional Institutions Third Edition (Px14-15) — Letter to Court regarding Staffing of housing units in female prisons nationally (Px16) — Settlement Agreement—United States Case (Px23) — Settlement Agreement—Female Inmates Case (Px24) — MDOC Director's Office Memorandum, 2000-33; 2000-33A November 11, 1999) detailing changes in policies and procedures for implementing settlement agreement in United States Case including reporting, conduct of investigation, tracking, minimization techniques, monetary, knock-and-announce policy, pat down search limitations, screening training and quality assurance (Px25) — MDOC Investigations materials regarding grievances in women's prisons (Px26) — Various MDOC materials relating to implementation of Settlement Agreements (Px27) — 19999-2001 Collective Bargaining Agreement Between State of Michigan and MCO (Px28) — Psychological testing materials (Px31-38) — The Securior report, entitled "Raising the Standard' (Px39) — Tabular listing of experts' recommendations in United States Case and MDOC actions taken in response including changes in shower curtains, toilet areas and cell door windows, knock-and-announce, limitations on pat down searches, grievance procedures, training, appointment of a Special Administrator for Female Offender Programs (Px46) — Summary of 1999 and 2000 sexual misconduct reports (Px56) — Application for Selection Certification to MDOC (Px57) — DCS denial of MDOC request for selection certification (females) for six positions—1985 (Px63) — Scott monthly reports to the Director January 1999 - January 2001 (Px66) — Scott Warden's Forum Meeting—Minutes January 1999 - January 2001 (Px68) — MDOC Memorandum from Yukins commenting Securior recommendations (Px69) — EEO Affirmative Action Policy Directives, P.D. 02.06.100 - 12-17-90 and EEO Policy Directive P.D. 02-06-00 - 05-01-00 (Px70) 2. Defendants' Relevant Exhibits Defendants' relevant exhibits were: — McManus' final report on monitoring the MDOC Compliance with Settlement Agreement in United States Case (DxB-2) — Order of Dismissal in female inmates case of August 17, 2000 ("The dismissal is conditioned upon Defendant's
other documents regarding the rights of female inmates. These include the following: "Not Part of My Sentence" Violations of the Human Rights of Women in Custody in the United States, by Amnesty International, dated March 1999, available at www.amnesty.org/alibi/aipub/1999/25100199.htm; Human Rights Watch "All Too Familiar: Sexual Abuse of Women in U.S. State Prisons," December 1996, available at http://www.hrw.org/summaries/s.us96d.html, and "Nowhere to Hide: Retaliation against Women in Michigan State Prisons," July 1998, available at http://www.hrw.org/reports98/women, and United Nations High Commissioner for Human Rights, "Standard Minimum Rules for the Treatment of Prisoners," available at http://www.unhchr.ch/html/menu3/b/h —comp34, htm, and "Women Offender Symposium: Through the Eyes of a Child," September 19-20, 2000, by the Minnesota Department of Corrections.
substantial compliance with The terms of the settlement agreement." (DxC-2) — Female Offender 1999/2000 Staff Training Program (DxE-2) — MDOC Policy Directive, o03.03.140— Prohibited Conduct In Facilities (DxF-1) Housing Female Prisoners—12/11/00 — Listing of measures taken to prevent sexual misconduct in female prisons (These include knock-and-announce policy, one-on-one contact restrictions, limitation on searches, grievance procedure, sexual misconduct, tracking data, training and physical plant changes (DxG) — Summaries of investigations relating to sexual misconduct at the female prisons (DxI-1 to DxI-9) — Statistics relating to female prison population and statistics relating to corrections officers and the like gender-race-ethnicity (DxM-1 to DxM-15) — DCS approval for selection certification (DxU-2 to DxU-3) — Brochure entitled "Appropriate and Inappropriate Staff and Prisoner Interactions: A Guide to Sexual Misconduct Prevention and Intervention, November 1996, updated September 2000." (DxX-1) — Prisoner Education Instructor Guide of May 2000 (Dx-X-2) 3. Joint Exhibits Joint exhibits were: — Staffing Summaries for Female Facilities (June 2001) (Jx1) — Staffing Summaries for Camp Brighton (March 2002) (Jx2)
Because much was made at trial of the statistics regarding sexual misconduct involving female inmates, a separate discussion is in order.
There were a host of exhibits in evidence relating to statistics. The conclusion to be drawn from them is not easy. First, to properly understand what the statistics reflect the year in which an incident occurred must be differentiated from the year in which the allegation was made and the year in which a finding was memorialized. Also, incidents involving the CO's and the RUO's in the housing units in the female prisons must be differentiated from incidents involving other male staff in the female prisons such as, for example, maintenance mechanics, storekeepers, instructors, yard officers, and kitchen workers. Lastly, incidents of sexual misconduct, incidents of sexual harassment and incidents of overfamiliarization must be differentiated because of their descending order of seriousness and what they display regarding improper conduct.
The MDOC keeps detailed statistics which display individual incidents of improper conduct in each of the female prisons year-by-year, as well as the results of the investigation of such an incident, i.e. sustained, not sustained, unfounded, other, and pending. None of the parties, however, in their proposed findings attempted to draw any conclusions from the statistics as to how pervasive is the problem of improper conduct in the housing units in the female prisons. The statistics overall show that with the closing of Florence Crane and the implementation of the requirement of the settlement agreements, the allegations of improper conduct have gone down as follows:
Year Allegations Finding Sustained 1998 57 22 1999 40 3 2000 25 0 2001 0
The MDOC and the intervening defendants in an effort to counteract the picture displayed by the substantial drop in allegations of improper conduct average them over the period 1994 to date of trial and then translate them into percentages. Included are incidents at Florence Crane without regard to the fact that it was Florence Crane that was the target in the court cases.
VIII. The Right Of Plaintiffs To Bring Suit
Strangely, defendants contest the right of plaintiffs to challenge the BFOQ initiative on the grounds that it would not have an adverse employment affect on any of them. This challenge ignores the pending motion for class certification and particularly defendants response to the motion which states in part:
Presumably, as far as the MDOC is concerned, the dislocation of CO and RUO's, male and female, occasioned by the DCS approval of the BFOQ request is de minimus and, therefore, no CO or RUO has standing to challenge it.
The law is well settled that "a tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). What is required is a "`materially adverse' change in the terms or conditions of employment because of the employer's action," Nguyen v. City of Cleveland, 229 F.3d 559, 562 (6th Cir.2000).
Here, as previously described, the impact on the female prisons is significant. Sixty percent (60%) of the positions in the housing units in the female prisons in Michigan would be limited to females and between 70 and 75 male CO and RUO's and 147 female CO and RUO's would be removed from their assignments and as many as 23 male CO and RUO's would be transferred to a different prison. Some of these officers would lose the job opportunity to bid for different positions and may also suffer promotional opportunities. Plaintiffs Idemudia and Sahl described in some detail, see Part VI. C., supra, the dislocation in their work and personal lives they would suffer if the CO's and RUO's positions in their work places were made female only in the housing units in which they work. This is certainly enough of a basis to allow them to file suit, notwithstanding the fact that MDOC effectively concedes that others in like positions would also suffer from the same disadvantages and dislocations.
The cases cited by the MDOC are not to the contrary and the effort to urge the Court to follow them as precedent tends to trivialize the effort the MDOC is making to justify the BFOQ. In Bowman v. Shawnee State University, 220 F.3d 456 (6th Cir.2000), plaintiff was removed from his position for 10 days with no loss of monies. In Hollins v. Atlantic Co., Inc. 188 F.3d 652 (6th Cir.1999), plaintiff complained of lower evaluations, which nonetheless resulted in merit raises. In Kocsis v. MultiCare Management, Inc., 97 F.3d 876 (6th Cir.1996), an admonition without a change in pay, benefits, duties, or prestige was involved. Finally, in Yates v. Avco Corp., 819 F.2d 630 (6th Cir.1987), the issue was
Confining the CO and RUO's positions in the housing units in the female prisons in Michigan is a sea change in MDOC personnel policies. Plaintiffs have every right to make the challenge.
IX. The BFOQ
A. The Law Generally
No useful purpose will be served by a general discussion of the law of sex discrimination applicable to the issue here or the conditions required to establish a BFOQ generally. Suffice to say, that to maintain a BFOQ requirement for a position, an employer must establish by a preponderance of the evidence three essential facts. First, the employer must establish that there is a basis for the belief that all or substantially all males will be unable to perform safely and efficiently the job. See International Union, United Auto., Aerospace, and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 207, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991), ("... 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.'"); Dothard v. Rawlinson,
Second, the job qualifications which males are unable to perform relate to the essence or central purpose of operating the business at hand. See International Union, 499 U.S. at 203, 111 S.Ct. 1196 ("[In Dothard] we 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.'").
Third, the employer must establish that there is no reasonable alternative to employing females exclusively in the position for which the BFOQ is sought. See International Union, 499 U.S. at 193, 111 S.Ct. 1196.
B. The Law Particularly
1. Female Prison BFOQ
Plaintiffs cite five cases dealing specifically with the female BFOQ in a female prison. While the five cases do not cover the universe of cases in which a female BFOQ for a corrections officer in a female prison was the issue, a discussion of each of these cases is sufficient to reflect the fact/law combination underlying the decision here.
Forts v. Ward, 621 F.2d 1210 (2d Cir. 1980), involved a challenge by female inmates to the assignment of male corrections officers to duties in the housing and hospital units of the facility in which they were housed. The district court granted a preliminary injunction on the grounds the plaintiffs were likely to prevail on the merits since such assignment violated the inmates' constitutional right of privacy without serving any legitimate and compelling state interest and the assignments were not required by the Civil Rights Act of 1964. On appeal, the Court of Appeals for the Second Circuit reversed the grant of the preliminary injunction and remanded the case for an evidentiary hearing on the grounds disputed issues of fact were present. See Forts v. Ward, 566 F.2d 849 (2nd Cir.1977).
On a second appeal, the Second Circuit again vacated and remanded the district court's decision, and spelled out in some detail just what was necessary to "satisfactorily accommodate" the "competing interests" before deciding whether "one interest must be vindicated to the detriment of the other." Forts, 621 F.2d at 1212. The court of appeals decision makes no mention of security interests or of elimination of improper conduct as the basis for limiting male corrections officers' right to work in a female prison.
In Edwards v. Department of Corrections, 615 F.Supp. 804 (M.D.Ala.1985), the district court rejected a claim that a female BFOQ was of the essence of the job of shift commander in a female prison noting particularly that "the [prison officials] failed to prove that the nature of the prison's operation precludes rearranging job responsibilities in a way that would eliminate the clash between the privacy interests of female inmates and the employment opportunities of male officers as shift commanders." Edwards, 615 F.Supp. at 809. Again, neither security interests or elimination of untoward conduct was an issue.
In Torres v. Wisconsin Depart. of Health and Social Servs., 859 F.2d 1523 (7th Cir.1988) (en banc), male prison guards challenged a female BFOQ for the position of guard in a female correctional institution. The district court sustained the challenge, finding that the state failed to satisfy the requirement for a BFOQ and did not attempt to utilize administrative alternatives to accomplish their goal without violating the national policy against sex discrimination and failed to justify the plan based on security, rehabilitation or privacy reasons. The Court of Appeals for the Seventh Circuit initially, in a 2-1 decision, affirmed the district court. Torres v. Wisconsin Dept. of Health and Social Servs., 838 F.2d 944 (7th Cir.1988). On rehearing, in an 8-3 decision, the Court of Appeals reversed the district court on the grounds the prison officials were held to a too strict standard of proof, i.e. objective evidence either from empirical studies or otherwise, displaying validity of their theory that rehabilitation of inmates in a female maximum security facility would be enhanced by employing only female correctional officers in certain positions. In remanding for further consideration, the Seventh Circuit said:
Torres, 859 F.2d at 1532 (emphasis added, internal citations and footnote omitted).
In Torres, the sole basis for requiring further consideration by the district court was the rehabilitation justification; privacy and security consideration did not offer a justification for the BFOQ:
Id. at 1533.
In Multnomah County Corrections Officers Ass'n v. Multnomah County, 1989 WL 51003, 1989 U.S.Dist. LEXIS 5086 (D.Or.1989), male corrections officers challenged a policy of prohibiting them from working in female inmate housing modules. The district court denied defendants' motion for summary judgment on the grounds there were genuine issues over material facts which required resolution by trial. While the district court acknowledged that some deference must be paid to the administrator's decision, importantly it noted, "It is necessary to determine whether such judgments are supported by the available evidence or whether they are based on stereotypical assumptions." Multnomah, 1989 WL 51003, *3, 1989 U.S.Dist. LEXIS at *9.
In Robino v. Iranon, 145 F.3d 1109 (9th Cir.1998), male correctional officers challenged a policy of assigning only female correctional officers to six posts in a Hawaii prison housing female inmates, each of which included a "First Watch" position. The Court of Appeals for the Ninth Circuit turned back the challenge. The district court found that female gender was a BFOQ reasonably necessary to "accommodate the privacy interest of the female inmates and reduce the risk of sexual conduct between [the male officers] and [the female] inmates." Id. at 1110. The Ninth Circuit, in affirming, stated:
Id. at 1110-1111 (citations omitted) (emphasis added).
What is important to the decisions in Torres and in Iranon is that the prison officials, before making the change, conducted extensive studies of the prison environment and came to reasoned conclusions that for particular penalogical reasons the female BFOQ was appropriate. In Torres, the district court was directed to reconsider its ruling based on the totality of circumstances presented in justification and in Robino only a limited number of positions were involved and the dislocation complained of was de minimus.
2. No Reasonable Alternatives
In addition to establishing that the BFOQ is necessary to the safe and efficient operation of the female prisons, the MDOC must also establish that there are no reasonable alternatives available to excluding male CO and RUO's from the female housing units. See Reed v. County of Casey, 184 F.3d 597, 599 (6th Cir.1999) ("Defendant ... has the burden of establishing that no reasonable alternatives existed" to meet state requirements against male deputy jailers supervising female prisoners alone);
3. Female Inmates Rights
Female inmates retain the right to be protected against unwarranted intrusion by male corrections officers and denying the BFOQ request does not give right to the MDOC to give co-extensive job responsibilities to male and female CO and RUO's. Smith v. Fairman, 678 F.2d 52, 54 (7th Cir.1982). For example, male CO and RUO's cannot strip search female inmates, Cornwell v. Dahlberg, 963 F.2d 912, 915-16 (6th Cir.1992) (strip search female inmates, before female corrections officers raises a valid privacy claim under Fourth Amendment). See also Hardin v. Stynchcomb, 691 F.2d 1364, 1373 (11th Cir. 1982) ("while it is important to maintain order and security within [a] jail ... inmates' retained privacy rights may be unnecessarily invaded by deputies [housing corrections officers] of the opposite sex conducting strip or body cavity searches, or oversee use of toilet and shower facilities.").
Based on the testimony at trial, the exhibits received in evidence, and the inferences to be drawn from them, seven overall factual findings, some of which have been described in detail above, are determinative of the Court's conclusion that MDOC and the intervening defendants have not made out a case for a female-only BFOQ in the housing unit of the female prisons.
First, standard practices nationwide provide for the employment of male corrections officers in female prisons. Admittedly there are limitations on the scope of the tasks male corrections officers can perform and additional physical structure over-and-above that generally called for in a housing unit is necessary. However, there is nothing unique about the operation of the female prisons in Michigan which suggests that the BFOQ is necessary for the MDOC to perform its mission or the essence of the business of running a female prison requires a BFOQ. Moreover, the standards set by the ACA do not exclude male corrections officers from the housing units in female prisons.
Second, internal studies by the MDOC do not support the elimination of male CO's and RUO's from the housing units in the female prisons. The GSAC's recommendation have already been discussed. A second study commissioned by the MDOC following the settlement of the United States case, Report On Staffing Feasibility Study of Scott and Florence Crane Correctional Facilities by Charles J. Kehoes and Nelda C. Leon, for Securior New Century, LLC, dated August 20, 1999 (referred supra as "the Securior report"), while recommending strategies to increase the number of female corrections officers in the housing units did not recommend a female BFOQ for the CO's and RUO's in the housing units. There is no evidence that the MDOC has attempted to implement the Securior recommendations. Additionally, as previously stated, aside from Martin's views on the desirability of the female BFOQ requirement, there is no evidence that any MDOC official supported it at the time the request was made to DCS for selective certification.
Fourth, the expert opinions offered by plaintiffs are considerably more credible and should be given greater weight than those offered by MDOC. The plaintiffs' experts have had hands-on experience in the operations of female prisons. The defendants' experts have had no direct experience in the operations of female prisons. The experts' testimony proffered by the female inmates replicates what they said in the female inmates court case and there they did not opine that a female BFOQ for housing unit corrections officer was necessary to deal with the abuses they found existed.
Also, the MDOC experts were not familiar by-and-large with the internal MDOC study and not familiar with other studies which have dealt with the problem associated with abuses in female prisons occasioned by lax control of male corrections officers and particularly poor correctional practice such as pat-down searches by them. Why the MDOC preferred to rely on expert testimony rather than the opinion of its senior officials and particularly those dealing with the operation of the female prisons in Michigan, was not explained. While Yukins is undeniably a respected professional in the corrections field, the radical change in her position diminishes the weight to be given her opinion.
Fifth, the ameliorative requirements of the changes called for by the settlement agreements in the court cases have only recently been implemented. Changes in physical structures, reporting requirements, staff interactions and the like have created a whole new environment in the female prisons. The court-appointed monitoring has only recently been concluded.
Sixth, although the statistical evidence relating to improper interaction has already been discussed it bears repeating that the statistics show a substantial decrease in improper conduct since the implementation of the changes called for by the settlement agreements.
Finally, the published literature on the presence of male correctional officers in female prisons does not support a female BFOQ for corrections officer in the housing units in a female prison. Much of this literature is listed in an attachment to the Memorandum of March 23, 2001 filed at the conclusion of the trial. As stated in the Memorandum:
See Memorandum of March 23, 2001 at p. 9.
B. Reasonable Alternatives
There is really no need to discuss reasonable alternatives. There 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. Very few male CO or RUO's are likely to be involved in improper activities. The few that are likely to be involved does not justify a BFOQ requirement in the face of federal and state law clearly prohibiting gender based discrimination.
However, even considering reasonable alternatives, which are better expressed as additional requirements, the Securior study identified the following reasonable alternatives to employing female CO and RUO's exclusively:
The MDOC has never explored these recommendations. Once Martin made his decision there appears to have been no effort to change existing staffing patterns in the housing units.
The policy that each CO and RUO conducting five pat-down searches per shift appears to be still in place. Elimination of the requirement would lessen the tensions which must inevitably result from the male staff-female inmate interaction occasioned by this requirement.
Moreover, no effort has been made 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. Such testing has been used in other prison systems in the United States.
In sum, the MDOC has done nothing aside from implementing the requirements of the settlement agreements to enhance the conditions under which the male CO's and RUO's in the housing units relate to the female inmates under their charge.
C. Continued Incidents
That there may be continued allegations of improper interaction, as well as incidents, does not support a BFOQ requirement. The statistical evidence shows that the changes required by the settlement agreements have lessened the number of such allegations and incidents. Particularly, the incidents of sexual misconduct have been reduced to almost zero and the most recent reported allegation did not involve a CO or RUO. Additionally, the changes in policies and procedures are of recent origin such as screening of job applications, staff training and prisoner education and facilitation of reporting of improper interactions. Physical modifications are also of recent origin. It is simply too early to gauge the full impact of these changes.
XI. The Intervening Female Inmates' Case
As a consequence of the independent status of the female inmates as intervening parties defendant a brief discussion of their arguments in support of the BFOQ requirement and why they do not carry the day for them is in order.
A. "The Harm To Plaintiffs Is Speculative And, At Most Minimal"
This assertion has already been discussed and the Court has explained why plaintiffs have standing to challenge selective certification. As previously described, some 270 CO's and RUO's would be adversely effected by approval of the BFOQ. If the female inmates' view of the minimal dislocation occasioned by limiting CO's and RUO's to female corrections officers only in the housing unit is correct; there appears to be no impediment to the MDOC making the change without the certification requested of the DSC. Obviously this is not the position of the MDOC. Additionally, in negotiations during the settlement agreement in the female inmates case the opportunity was present to negotiate for housing unit corrections officer qualifications much in the way that changes in practice and procedures were negotiated and this was not done. Effectively, the female inmates are trying to obtain in this case what they failed to obtain in the female inmates case.
B. "Since Plaintiffs Do Not Contest 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"
This argument assumes too much from the plaintiffs' position regarding gender specific tasking. Male corrections officers began working in the housing units in female prisons back in 1985 at about the same time female corrections officers began working in male prisons. The introduction of female corrections officers in male prisons has been considerably less controversial than the obverse. Prison authorities over the years have not been as sensitive as they should be to the need to limit certain of the tasks in female prisons to female corrections officers. Females being viewed by males is qualitatively different than males being viewed by females. The MDOC learned this in the court cases; the settlement agreements establish this. 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 Securior study supports gender specific task assignments. All this, however, does not make out a case for gender specific assignment of CO's and RUO's in the housing units and plaintiffs' willingness to accept the principle of gender specific tasks does not mean they concede the MDOC's position. What all this means is that the MDOC should be using a scalpel rather than a meat ax approach to staffing tasks in the female prisons.
C. "Assigning Males To Housing Units Solely to Achieve General Neutrality In Employment And Without Regard To Gender Differences Has Proven To Be A Mistake"
First, the record does not support a finding that the MDOC, in assigning male CO's and RUO's to the housing units in the female prisons, is engaged in some kind of affirmative action program or that there are not problems associated with the presence of male CO's and RUO's in the housing units in the female prisons.
The court cases were precisely about the problems associated with the presence of male corrections officers in the female prisons and the failure of the MDOC to recognize that it should not deal with cross gender supervision in the female prisons in the same manner as in the male prisons.
The female inmates are correct when they say:
These phenomena are well known in corrections. Yet they have not resulted in any effort nationally to take male corrections officers out of female prisons. Rather, as previously discussed, there is simply no support for the position that the phenomena cannot be dealt with the presence of males in female prisons.
What can be drawn from this is that:
What the female inmates urge as policy is better directed to the ACA and to the Congress and the state legislature. What the female inmates ask for is essentially a political question and not a legal requirement.
D. "MDOC Is Obligated To Take All Reasonable Steps To Prevent Abuses From Continuing In The Female Prisons"
No one disputes this. This is what the court cases were all about. Nothing dramatically different occurred following the signing of the settlement agreements to cause the need for a sea change in staffing policy which would be the consequences of selective classification. McManus and Yukins each changed their minds it is true; their reasons for doing so does not pass muster. 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 qualifications from past training employment or experience to make a reasoned judgment on the subject and his leaving corrections as a profession simply confirms this.
E. "Making Gender A BFOQ For Female Housing Unit Officers Is Reasonably Necessary To Achieve MDOC's Core Mission"
In making this argument, the female inmates do not define the MDOC's core mission. Rather, referring to selective bits of trial testimony they argue that the steps required to be taken by the settlement agreements and the changes in physical environment in the female housing unit are insufficient to assure that not only
XII. National Profile of Corrections Officers in Female Prisons
At the request of the Court shortly after the case was filed, the MDOC surveyed the other 49 states and the Federal Bureau of Prisons for information regarding the staffing of housing units in female prisons. Forty-eight states and the Bureau of Prisons responded. The results of the survey follow:
After all is said and done, the Court's view of the fundamental principles which must be balanced, as stated on March 23, 2001 at the conclusion of the proofs, still obtain:
The fundamental difficulty with the MDOC's decision to ask the DCS for a BFOQ requirement for the CO and RUO's in the housing units in the female prisons is that the decision reflected neither reasoned decision making nor professional judgment, but rather the consequence of a belief of one person, not a correctional professional, in a transitory position of authority, that it was best for the female prisons in Michigan. There was no consultation with staff and no effort to follow established procedures. Indeed, the established procedures were amended to avoid scrutiny by the state agency which is statutorily charged with review such requests. The end result to all of this was to make what should have been a reasoned policy decision into a judicial dispute. This was wrong.
There are tasks in the running of a female prison as has been explained above which should not be performed by male corrections officers such as strip searches and body cavity searches. It should not
Lastly, it should be clear that this decision recognizes, as stated in Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and most recently reaffirmed in McKune v. Lile, 586 U.S. ___, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002):
This principle has not been violated here. A past director of the MDOC made a decision and tried to translate the decision into a courtroom judgment. The effort failed because the decision was contrary to law. This is not a circumstance where the Court is being asked to accord deference to the decision of prison authorities but rather a circumstance where the Court must balance the decision of prison authorities against the equal employment opportunity requirement of the law. The state of Michigan has an established procedure for engaging in such balancing. Here, there was not only a bypass of that procedure but the absence of any evidence that the prison authorities made any attempt at balancing. It is for all of these reasons that plaintiffs are entitled to the declaratory relief they request.
For the reasons set forth in the Decision entered this date, finding in favor of plaintiffs on their request for declaratory relief,
MICHIGAN CIVIL RIGHTS COMMISSION Michigan Department of Civil Rights - Office of Legal Affairs 1200 Sixth Street Detroit, Michigan 48226 (313) 256-2998 FAX:(313) 256-1549
BONA FIDE OCCUPATIONAL QUALIFICATION EXEMPTION
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, 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.
Pursuant to Section 208 of the Elliott-Larsen Civil Rights Act, a person subject to Article 2 may apply to the Michigan Civil Rights Commission for an exemption on the basis that religion, national origin, age, height, weight, or sex is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the business or enterprise. Upon sufficient showing, the commission may grant an exemption to the appropriate section of Article 2. Prior to requesting an exemption, employers must explore alternatives for the purpose of determining that no reasonable alternatives are available. However, an exemption will not be granted if the same facts and circumstances are at issue in a complaint pending before the department or commission.
To request a BFOQ exemption and begin the review process, complete this application, attaching additional pages if necessary. A legal brief in support of the BFOQ is also required and should minimally include: (1) background information and an explanation of the facts you believe justify the BFOQ exemption(s), (2) an in depth analysis of the case law as it pertains to your specific request(s), and (3) proposed findings of fact and conclusions of law. You may also submit other supporting materials for consideration.
Upon receipt of all required documents, your BFOQ request will be assigned to the next Commissioner available on the (blind draw) assignment roster. The assigned Commissioner and legal staff will then review the application for adequacy. The Commissioner assigned will also determine if notice to employees, employee representatives or other interested parties, is appropriate.
The completed application, and other requested materials should be returned to:
PERSONNEL SURVEY WORK FORCE BREAKDOWN: DATE: -------------------------------------------------------------------------------------------------------------------------------------- | | MALE EMPLOYEES | FEMALE EMPLOYEES | | | |---------------------------|--------------------------------------|----------------------------------------|-----------|------------| | | | Minorities | | Minorities | | | | | Total |------------------------------| Total |------------------------------| TOTAL ALL | TOTAL ALL | | JOB CATEGORIES | Males | Black | SSA | Asian | Am Ind | Females | Black | SSA | Asian | Am Ind | EMPLOYEES | MINORITIES | |---------------------------|-------|-------|-----|-------|--------|---------|-------|-----|-------|--------|-----------|------------| | OFFICIALS AND MANAGERS | | | | | | | | | | | | | |---------------------------|-------|-------|-----|-------|--------|---------|-------|-----|-------|--------|-----------|------------| | PROFESSIONALS | | | | | | | | | | | | | |---------------------------|-------|-------|-----|-------|--------|---------|-------|-----|-------|--------|-----------|------------| | TECHNICIANS | | | | | | | | | | | | | |---------------------------|-------|-------|-----|-------|--------|---------|-------|-----|-------|--------|-----------|------------| | SALES WORKERS | | | | | | | | | | | | | |---------------------------|-------|-------|-----|-------|--------|---------|-------|-----|-------|--------|-----------|------------| | OFFICE AND CLERICAL | | | | | | | | | | | | | |---------------------------|-------|-------|-----|-------|--------|---------|-------|-----|-------|--------|-----------|------------| | CRAFTSMEN (Skilled) | | | | | | | | | | | | | |---------------------------|-------|-------|-----|-------|--------|---------|-------|-----|-------|--------|-----------|------------| | OPERATIVES (Semi-skilled) | | | | | | | | | | | | | |---------------------------|-------|-------|-----|-------|--------|---------|-------|-----|-------|--------|-----------|------------| | LABORERS (Unskilled) | | | | | | | | | | | | | |---------------------------|-------|-------|-----|-------|--------|---------|-------|-----|-------|--------|-----------|------------| | SERVICE WORKERS | | | | | | | | | | | | | |---------------------------|-------|-------|-----|-------|--------|---------|-------|-----|-------|--------|-----------|------------| | TOTAL | | | | | | | | | | | | | -------------------------------------------------------------------------------------------------------------------------------------- Race/Ethnic Group Designations: ALL All employees in unit MIN. Total employees in four minority groups that follow BLACK Black employees SSA Hispanic employees ASIAN Asian American employees AM. IND American Indian employees
2000 Annual Report of the MDOC at p. 71-72.
The CSC is also awaiting a response from the Department of Justice Canada before finalizing its response.