Appeal from the United States District Court for the Eastern District of Wisconsin. No. 83 C 629 -- Robert W. Warren, Judge.
Cudahy and Ripple, Circuit Judges, and Will, Senior District Judge.*fn* Ripple, Circuit Judge, dissenting.
The plaintiffs in this suit are three men who are employed as correctional officers at a prison for women. They were demoted pursuant to the creation and implementation of a policy that designated certain correctional officer positions (including those formerly held by the plaintiffs) as open to women only. The plaintiffs sued, challenging this policy as violative of their right to be free from employment discrimination on the basis of sex, as guaranteed by Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1982). The defendants responded that sex is a "bona fide occupational qualification" ("bfoq"), 42 U.S.C. § 2000e-2(e)(1), for the positions at issue because that distinction on the basis of sex is necessary to protect the privacy rights of the inmates and to promote the prison's purposes of security and rehabilitation. The district court found after a bench trial that the defendants had failed to establish that sex was a valid bfoq justifying the defendants' policy. 639 F. Supp. 271 (E.D. Wis. 1986). We affirm.
In reviewing this case on appeal, we are mindful, as always, of the deference we owe to the trial court's findings of fact. Federal Rule of Civil Procedure 52(a) provides that "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 of the credibility of the witnesses." The Supreme Court recently applied the rule to a Title VII claim in Anderson v. City of Bessemer City, 470 U.S. 564, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985). The Court stated there that "'[a] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Id. at 573 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948)). A reviewing court may not reject a factual finding simply because it disagrees with the trier of fact. Id. Further, a reviewing court must show even greater deference to the trial court's findings that involve credibility of witnesses, "for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said." Id. 470 U.S. at 575.
Deference to the district court's findings of fact is particularly appropriate in the present case. The district court heard numerous witnesses over the course of an eleven-day trial. Further, the district court conducted a tour of the women's prison involved here and thus was able to view the layout of the facilities and, to some degree, the extent to which the inmates were afforded privacy. 639 F. Supp. at 272. The following summary of the facts is therefore based almost entirely on the district court's recitation of its factual findings, which we have found to be a careful and accurate reflection of the facts of record.*fn1
The defendant Taycheedah Correctional Institution ("TCI") is the only women's maximum security prison in Wisconsin. TCI is operated by the Wisconsin Department of Health and Social Services ("DHSS"), which is also a defendant in this action. The final named defendant is Nona J. Switala who is the Superintendent of TCI, a position she has held since September 1978.
Prior to 1975, TCI was a prison for women. In 1975, DHSS designated TCI a co-correctional institution and transferred male inmates and male correctional officers to TCI. TCI again became a prison for women only in February 1978 and currently continues to be a women's prison. When the male inmates were transferred out of TCI, however, male correctional officers remained employed at TCI.
TCI includes three buildings in which inmates are regularly housed; each building has three residence floors. The inmates live in single, double and multiple occupancy rooms. Each room contains a bed for each inmate, a desk, chair, light, toilet and wash basin. In two of the three residence buildings, privacy curtains have been installed around the toilets. When an inmate is behind the curtain, only her feet are visible. Privacy curtains will soon be installed in the rooms in the remaining residence building.
The inmates' rooms have solid doors that contain, at eye level, a clear glass window that measures approximately four inches by six inches. During the hours of 6 a.m. to 9 p.m., the inmates are permitted to cover that window from the inside with a piece of cardboard known as a "privacy card" for a maximum of ten minutes while they are using the toilet or changing their clothing. During the hours 9 p.m. to 6 a.m., the privacy card is placed over the window on the outside of the door which enables the correctional officers to lift the card to see into the room in order, for example, to perform body counts. During these nighttime hours, the inmates apparently are not permitted to place the card over the window on the inside of the door for the ten-minute intervals.*fn2
The correctional officers perform body counts each day at 7:30 a.m., 12:30 p.m., 5:30 p.m., 9:30 p.m., and once an hour between 10 p.m. and 6 a.m. The inmates are aware of this schedule. The officers perform the counts at night by looking in the windows in the doors to the inmates' rooms. The inmates are provided appropriate sleepwear from TCI but are not required to wear it.
Shower rooms are located on each floor of the residence halls. The doors to the shower rooms are solid; some contain windows, but the windows have been rendered opaque. Each shower room has one to three shower stalls, one to three toilet stalls, and some have one or more bathtubs. Each shower and toilet stall has a curtain or door which shields the inmate from view from the rest of the shower room. In all but the maximum security residence hall, only one inmate may occupy the shower room at a time, except that roommates may use the shower room together. Inmates are allowed fifteen minutes in the shower room.
Absent an emergency or rule violation, no correctional officer would see an inmate in any state of undress. In order to use the shower room, an inmate must sign up with the floor officers. The inmate must wear at least a robe or housecoat while traveling to and from the shower room. Correctional officers do not routinely enter the shower rooms while they are occupied.
Correctional officers at TCI perform three types of searches of inmates, all of which are authorized by the Wisconsin Administrative Code. Pat searches are the least intrusive and may be performed at any time, subject to certain restrictions and requirements. The inmate remains fully clothed during a pat search; she empties her pockets and then the searching officer runs his or her hands over the inmate's entire body. Although the Wisconsin Administrative Code provides that correctional officers may perform pat searches on inmates of the opposite sex, there is an unwritten rule at TCI that only female officers may perform pat searches. Strip searches, the second type of search used at TCI, must be authorized by a "lieutenant" and are performed in private, and, except in emergencies, only by officers of the same sex as the inmate. Body cavity searches, the most invasive of the searches, are performed only by medical personnel. Searches of the inmates' rooms are performed when the inmates are out of the rooms.
DHSS ranks its correctional officers as follows (in ascending order): correctional officer 1 ("CO-1"), correctional officer 2 ("CO-2") and correctional officer 3 ("CO-3"). TCI employs officers from all three classifications in its living units. The CO-3 in charge of a living unit is known as a "sergeant."
Prior to the implementation in 1980 of the plan that designated specified positions as available only to women, all correctional officer positions were open to all qualified officers without any restrictions based on sex. In August 1978, DHSS authorized correctional institution superintendents to submit requests for restricting certain correctional officer positions to women only where those positions involved performing strip searches or supervising the showers or living units. TCI's then-acting superintendent responded by proposing that five positions, including one CO-3 post, be limited to female officers. This plan was never formally adopted.
In June 1980, DHSS approved a different plan (the "Plan") which was based on a proposal by defendant TCI superintendent Switala. The Plan provided that nineteen of the twenty-seven correctional officer posts in the residence halls would be limited to women. This number included all of the CO-3 posts in the residence halls as well as all CO-1 and CO-2 "single coverage" posts, that is, posts where only one officer was assigned to a floor. Beginning on September 1, 1980, all vacancies for these posts were to be filled with female officers. If any of these posts were still held by men as of September 1, 1982, the male officers were to be replaced by female officers. With the full implementation of the Plan, fifteen of the eighteen CO-3 positions at TCI were restricted to women.
The three plaintiffs were all employed by TCI as CO-3's prior to the full implementation of the Plan. Pursuant to the Plan, the plaintiffs were removed from their CO-3 posts and involuntarily demoted to the rank of CO-2. They are presently working under female CO-3's who have less seniority and less experience than the plaintiffs.
The defendants do not dispute that the plaintiffs were qualified CO-3's and that they were performing their duties satisfactorily at the time of their demotion. Moreover, the Plan was not adopted for the purpose of addressing specific allegations of violations of the privacy of inmates by male officers. Rather, the plan was adopted because administrators at TCI were experiencing increased difficulty in assigning posts and shifts "that would recognize seniority, officer's personal desires, institutional requirements, and still ...