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Henry v. Milwaukee County

August 20, 2008

ERSOL L. HENRY AND TERRI J. LEWIS, PLAINTIFFS-APPELLANTS,
v.
MILWAUKEE COUNTY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 04 C 432-Rudolph T. Randa, Chief Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED FEBRUARY 12, 2008

Before EASTERBROOK, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

In 1997, Milwaukee County's Juvenile Detention Center instituted a policy that required each unit of the facility to be staffed at all times by at least one officer of the same sex as the detainees housed on that unit. Because there were far more male units than female units at the facility, this policy had the effect of reducing the number of shifts available for female officers. Ersol Henry and Terri Lewis, both female officers at the facility, brought this action in the United States District Court for the Eastern District of Wisconsin, alleging sex discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e, et seq. After a bench trial, the district court concluded that the gender-specific policy was based on a bona fide occupational qualification and that no other discrimination or retaliation had occurred; accordingly, it entered judgment in favor of the County. For the reasons set forth in this opinion, we reverse the judgment of the district court.

I. BACKGROUND

A.

At the time relevant to this appeal, Ersol Henry and Terri Lewis were employed as Juvenile Corrections Officers ("JCOs") at the Milwaukee County Juvenile Detention Center ("JDC"). The JDC, part of the Wisconsin State Juvenile Justice System, is a detention facility designed to house temporarily juveniles awaiting juvenile court proceedings.

The statutory mission of the Wisconsin juvenile justice system includes, inter alia, punishment, deterrence, and "the development of competency in the juvenile offender, so that he or she is more capable of living productively and responsibly in the community." Wis. Stat. § 938.01(2)(c). The mission statement of the JDC, in particular, states that the facility is intended:

1. To serve the community by providing care for young people who, because they represent a danger to themselves or others, could not remain safely in the community pending the outcome of a Juvenile Court proceeding.

2. To serve the Juvenile Courts by maintaining close supervision and observation of youngsters and ensuring their appearance in court.

3. To serve the detained youth by providing the best possible care in an atmosphere of fairness and dignity so that their encounter with the Juvenile Justice System can be a positive one.

Tr. Ex. 1021.

Most juveniles at the JDC are detained there for only a short period of time. The average length of stay is ten days, although for those juveniles awaiting their initial court appearances, the average stay is approximately three weeks. Juveniles often are detained for as little as one day. Occasionally, a juvenile may be detained there for as long as one year.

In 1991, Thomas Wanta was appointed superintendent of the JDC. The facility that Mr. Wanta inherited in 1991 was a poorly-maintained, over-crowded detention facility built for indirect (also known as linear) supervision. The juveniles were housed in cells on a long hallway, and JCOs walked the halls monitoring the inmates from the outside without much interaction. Mr. Wanta believed that this indirect form of supervision was a poor way to care for and to rehabilitate juveniles; accordingly, he advanced the idea of a new facility better adapted to a method of supervision in which staff members and inmates would have closer, more direct contact.

As a result of his efforts, a new, non-linear juvenile detention facility was completed in April 1996. The new JDC contains common rooms, classrooms and recreation rooms where the juveniles spend the majority of their daytime hours. At night, however, the juveniles are confined to their living areas, which are assigned based on their sex, age and classification.

The living areas at the new facility are organized into seven single-sex "pods." Each can accommodate between 11 and 22 juveniles of the same sex. Each pod consists of a number of individual cells,*fn1 a control center desk from which the staff can monitor the cells and communicate with the pod via intercom, and a common area or "day room" with tables, chairs and a television. The individual cells each contain a bed, a toilet, a desk and a small storage area. The entire cell, including the toilet, is visible from the outside through a window in the cell door.

The juveniles are monitored at all times by JCOs. During the first (morning) and second (evening) shifts, two JCOs are assigned to supervise each pod. During the third (night) shift, when the juveniles are locked inside their cells and generally are asleep, only one JCO is assigned to monitor each pod. In addition to the JCOs assigned to pods, the JDC also has a male and a female "runner" on duty at all times. The runner is a JCO who is responsible for performing the intake procedures for newly-admitted juveniles, including any necessary pat-downs and super-vision of showering during the night hours. Another staff member monitors the central control center at all times.*fn2

The advent of the new facility provided an opportunity for Mr. Wanta to shift the JDC's method of supervision from an indirect model to a direct model and to encourage JCOs to have greater interaction with the juveniles they monitored. Accordingly, in 1997, Mr. Wanta instituted a new role model/mentoring program at the JDC. The staff, including the JCOs, received basic training in mentoring, role modeling and child development in order to equip them to interact more effectively with the juveniles. In furtherance of this program, Mr. Wanta also required that a staff member of the same sex be available on each pod at all times throughout the day and night to mentor the juveniles.*fn3

Prior to the move to the new facility, JCOs had been assigned to shifts without regard to the sex of the officer.

Mr. Wanta's new policy, however, required that each pod be staffed at all times by at least one JCO of the same sex as the juveniles housed on the pod. During the day shifts, when two JCOs staffed each pod, one of the two JCOs could be of the opposite sex; however, during the night shifts, when only one JCO staffed each pod, the sole JCO on duty had to be of the same sex as the juveniles in the pod. Because the JDC housed far more male juveniles than female juveniles, Mr. Wanta's same-sex role model/ mentoring policy afforded male JCOs more opportunities for work than those available to female JCOs. The night shift was particularly problematic. It was perceived as the easiest shift; those officers assigned to it received premium pay; and it afforded the most opportunities for overtime.*fn4

During the time of their employment as JCOs, Ms. Henry and Ms. Lewis primarily worked one of the day shifts. Prior to 1997, however, they each had earned a substantial amount of additional income from voluntary overtime, predominantly by working the night shift. According to a collective bargaining agreement, voluntary overtime at the JDC traditionally had been apportioned according to seniority. Employees with the most seniority could "put in" for overtime, and they would receive the first opportunities to work their preferred shifts. Ms. Lewis and Ms. Henry were relatively senior employees, and they often were able to work overtime at the old JDC.

After Mr. Wanta instituted the same-sex pod policy, however, far fewer women were allowed to work the third shift because there were far fewer female pods than male pods at the facility. As a result of the same-sex role model/mentoring program, most of the available night shifts with premium pay were reserved for male employees. Female officers like Ms. Henry and Ms. Lewis no longer were able to get the same number of overtime hours as they previously had received. Instead, male employees with less seniority were allowed to work these shifts. Consequently, Ms. Henry and ...


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