In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2534

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.

____________

ARGUED FEBRUARY 12, 2008—DECIDED AUGUST 20, 2008

____________

Before EASTERBROOK, Chief Judge, and RIPPLE and

ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. 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
2 No. 07-2534

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:
No. 07-2534 3

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
4 No. 07-2534

One pod at the JDC was reserved for females. The other 1

six pods housed male juveniles.

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

1

a number of individual cells, 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
No. 07-2534 5

Other than these newly-admitted juveniles, all regular 2

showering takes place on the second shift.

Although the juveniles generally are confined to their cells at 3

night, cell occupants can, and occasionally do, talk with JCOs

through their doors. Staff members are permitted to speak

with the juveniles through their doors at night; however, they

are not permitted to enter the individual cells at night except

in an emergency. If they do enter the cells at night, an alarm

will sound.

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 supervision of showering during the night hours. Another 2

staff member monitors the central control center at all

times.

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.3

Prior to the move to the new facility, JCOs had been

assigned to shifts without regard to the sex of the officer.
6 No. 07-2534

The ratio of male detainees to female detainees at the JDC was 4

between 4:1 and 6:1 during the relevant time period. Six of the

pods at the new JDC were reserved for males; one was

reserved for females.

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/ 4

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.

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
No. 07-2534 7

At the time of trial, despite the efforts of Mr. Wanta, the same- 5

sex overtime policy was not being followed strictly at the JDC.

On the advice of counsel, the JDC began allowing females to

work in male pods during the third shift, so long as they kept

the doors between the pods open. Tr. at 659.

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 Ms. Lewis received

significantly less compensation than they had received

prior to the institution of the same-sex role

model/mentoring program.5

B.

Prior to the institution of this policy, Ms. Henry and

Ms. Lewis each had filed an unrelated EEOC complaint

alleging harassment and discrimination in the workplace. In October of 1997, they filed additional grievances

regarding the sex-specific requirements of the third shift.
8 No. 07-2534

The plaintiffs allege that they subsequently were treated

even more negatively than they had been treated before

they filed these complaints.

Ms. Henry testified at trial that her Head of Shift, Bobby

Bell, became aggressive and threatening toward her after

she began objecting to the JDC’s sex-based shift assignments and to other instances of alleged discrimination.

She also stated that she once was removed from the

voluntary overtime list for being tardy by just one

minute and that she was criticized informally by management for minor things such as eating a sandwich and

wearing a sweater at work. She testified that other employees were not disciplined or criticized for such minor

infractions. She also noted that her timecard had been

written on in red ink, which she found embarrassing, and

that occasionally her timecards had been missing altogether—an unusual occurrence.

Ms. Lewis testified that, after filing her EEOC charges,

her doctor’s notes were no longer accepted without

question for sick leave purposes. Both plaintiffs stated

that their managers called them very early in the mornings

on weekends and on vacation days when the managers

knew that they would be unable to work. They also

asserted that, despite repeated requests, they no longer

were assigned to work together or to work at the “easier”

JCO positions which they preferred. Finally, they testified

that they were referred to as “troublemakers” and other

derogatory terms by their managers and fellow JCOs.

Ultimately, Ms. Lewis and Ms. Henry decided to take

positions in different departments because of this alleged
No. 07-2534 9

harassment. Although their hourly pay rate was greater

in these positions than their hourly rate had been while

working as JCOs, their total income was less because

they were unable to get overtime pay in these positions.

C.

Ms. Henry and Ms. Lewis brought this action in the

district court. They alleged that, in violation of Title VII,

they had been denied overtime assignments on the third

shift at the JDC because of their sex. They also alleged

that they were subjected to a variety of other indignities

in the workplace on account of their sex and that the

defendants had retaliated against them for filing complaints of discrimination.

Before the district court, the County denied that

Ms. Henry and Ms. Lewis had experienced any harassment on account of their sex or in retaliation for their

EEOC charges. The County admitted that it had assigned

positions on the third shift based on the employees’ sex;

however, it asserted as a defense that its sex-based classifications were a bona fide occupational qualification

(“BFOQ”) permissible under 42 U.S.C. § 2000e-2(e). It

based this defense largely on the testimony of the JDC’s

superintendent, Mr. Wanta, who testified that, in

his professional judgment, a same-sex role model/

mentoring program would best facilitate the rehabilitative

goals of the JDC.

After a three-day bench trial, the district court concluded that the same-sex staffing policy on the third shift
10 No. 07-2534

was a BFOQ. It found that “[t]he essence of the JDC’s

business is to ensure and promote the care, rehabilitation,

safety and security of the juveniles entrusted to its care.”

R.60 at 11. Based on Mr. Wanta’s testimony, it then concluded that “same gender role modeling furthers the

twin goals of rehabilitation and security in the juvenile

detention setting,” id. at 4, and that “[s]ame gender shift

assignments serve to protect the privacy interests of the

juvenile detainees,” id. at 5. Finally, relying on general

studies that heterosexual assaults are statistically more

likely than homosexual assaults, the court found that

“[s]ame gender shift assignments also serve the goals of

risk management and security.” Id. In the district court’s

view, the “alternative to protecting against this risk . . . is

to hire an additional staff member for each pod on third

shift at an approximate cost of $750,000 per year.” Id.

Accordingly, it found that gender was a BFOQ for JCOs

working the third shift; therefore, the sex-based shift

assignments did not violate the anti-discrimination provisions of Title VII.

Regarding the plaintiffs’ other claims, the district court

found that the allegedly harassing incidents did not

affect the terms and conditions of their employment

because they were “trivial inconveniences” that did “not

rise to the level of an adverse employment action.” Id. at 7.

It also found that the alleged retaliatory actions were not

materially adverse actions that would dissuade a reasonable employee from engaging in protected activity.

Id. at 8. Finally, the district court found that the plaintiffs had failed to demonstrate any causal connection

between their gender or their EEOC charges and the
No. 07-2534 11

alleged harassment. Id. at 9-10. Accordingly, it denied

their claims of discrimination and retaliation under Title

VII.

The district court therefore entered judgment in favor

of the defendants on May 31, 2007. Ms. Henry and

Ms. Lewis timely appealed.

II

DISCUSSION

A.

We begin by setting forth the general principles that

must govern our decision. Title VII makes it unlawful

for an employer to “limit, segregate, or classify his employees” based on their sex in a way that would adversely

affect their employment. 42 U.S.C. § 2000e-2(a)(2). An

exception exists, however, when sex is a bona fide occupational qualification (“BFOQ”) that is “reasonably

necessary to the normal operation of that particular

business or enterprise.” Id. § 2000e-2(e); see also Int’l

Union, United Auto. Aerospace & Agric. Implement Workers

v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991); Torres v.

Wis. Dep’t of Health & Social Servs., 859 F.2d 1523, 1527

(7th Cir. 1988) (en banc).

The Supreme Court has cautioned that the BFOQ

defense is written narrowly and is to be read narrowly.

Int’l Union, 499 U.S. at 201. It has made clear that the

defense is “meant to be an extremely narrow exception to

the general prohibition of discrimination on the basis of
12 No. 07-2534

See also Everson v. Mich. Dept. of Corr., 391 F.3d 737, 749 (6th 6

Cir. 2004); Reed v. County of Casey, 184 F.3d 597, 600 (6th Cir.

1999); Chambers v. Omaha Girls Club, Inc., 834 F.2d 697, 704 (8th

Cir. 1987); Edwards v. Dep’t of Corr., 615 F. Supp. 804, 809 (M.D.

Ala. 1985).

sex.” Dothard v. Rawlinson, 433 U.S. 321, 334 (1977). In

Dothard, the Court quoted approvingly the Fifth Circuit’s

formulation in Diaz v. Pan American World Airways, 442

F.2d 385, 388 (5th Cir. 1971), that “discrimination based

on sex is valid only when the essence of the business

operation would be undermined.” Dothard, 433 U.S. at

333; see also Torres, 859 F.2d at 1527.

Employers bear the burden of establishing the affirmative defense that a particular qualification is a BFOQ. See

Meacham v. Knolls Atomic Power Lab., 128 S. Ct. 2395, 2400-

01 (2008); Everson v. Mich. Dep’t of Corr., 391 F.3d 737, 748

(6th Cir. 2004). Employers also bear the burden of proving

that they could not rearrange job responsibilities or

otherwise eliminate the clash between the business necessities and the employment opportunities of female

officers. Torres v. Wis. Dept. of Health & Social Servs., 838

F.2d 944, 953 n.6 (7th Cir. 1988) (reheard and reversed on

other grounds in Torres, 859 F.2d 1523).6

B.

Before the district court, Milwaukee County relied on

a series of cases from this and other circuits that examined whether sex could be a BFOQ for officers in adult
No. 07-2534 13

female correctional facilities. See Torres, 859 F.2d at 1532;

Everson, 391 F.3d at 747-60; Robino v. Iranon, 145 F.3d 1109,

1110-11 (9th Cir. 1998); Tharp v. Iowa Dep’t of Corr., 68 F.3d

223, 226 (8th Cir. 1995). In each of these cases, the court

held that the goals of security, safety, privacy and rehabilitation could, in some circumstances, justify sex-based

assignments in female prisons. Milwaukee County

submits that, like the sex-specific shift assignments in

adult female correctional facilities, the sex-specific assignments at issue here should be upheld because they are

necessary to protect the juveniles’ safety and privacy

and to further the facility’s rehabilitative goals.

In Torres, we determined that the unique circumstances of the female prison at issue required prison

administrators to “innovate and experiment.” 859 F.2d at

1529. In the course of our decision, we noted that, because

prison administrators in general face unusually difficult

challenges in dealing 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 with an improved chance of being useful,

law-abiding citizens,” prison administrators’ decisions

must receive some degree of deference. Id. Accordingly,

although the decisions of prison officials are not

accorded as much deference in Title VII cases as they are

in constitutional cases, their decisions “are entitled to

substantial weight when they are the product of a reasoned

decision-making process, based on available information and

experience.” Id. at 1532 (emphasis added); see also Robino,
14 No. 07-2534

145 F.3d at 1110; Everson, 391 F.3d at 750. Milwaukee

County contends that, like in Torres, the administrators

of the JDC were entitled to substantial deference in their

decision to implement a sex-specific policy regarding

shift assignments. In its view, the goals and circumstances

of the juvenile detention context, when compared to the

female corrections context, are equally complex and

challenging.

We agree that the administrators of juvenile detention

facilities, like the administrators of female correctional

facilities, are entitled to substantial deference when

fashioning policies to further the goals of the facility. We

do not agree, however, that the discretion accorded to

these individuals in either context is effectively unlimited.

A defendant ultimately must introduce sufficient evidence to prove that the administrator’s judgment—that

a particular sex classification is reasonably necessary to

the normal operation of the institution—is “the product of

a reasoned decision-making process, based on available

information and experience.” See Torres, 859 F.2d at 1532.

The district court concluded that the JDC’s policy of

assigning shifts according to an employee’s sex was based

on its administrator’s reasonable belief that the policy

would “promote” the goals of rehabilitation, security and

privacy. R.60 at 11. All of these functions are, as the district court concluded, essential to the mission of the JDC.

However, Title VII’s standard is not satisfied simply

because a policy promotes an essential function of an

institution. Although sex-based assignments might be

helpful in pursuing these goals, in order to satisfy the anti-
No. 07-2534 15

discrimination strictures of Title VII, Milwaukee County

must show that the contested sex classifications are

“reasonably necessary.” See Torres, 859 F.2d at 1527 (emphasis

in original); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62,

86 (2000) (noting that the “reasonably necessary” standard

of the BFOQ defense is “a far cry from the rational

basis standard”).

We must conclude that Milwaukee County’s contention

that sex-based assignments are reasonably necessary to

achieve these goals, at least on the third shift, is not

supported by the record before us. The employer, Milwaukee County, has the burden to demonstrate that it

could not rearrange job responsibilities to eliminate or

minimize the conflict between the inmates’ privacy,

security and rehabilitation interests and the employees’

rights under Title VII. See Torres, 838 F.2d at 952 n.6;

Chambers v. Omaha Girls Club, Inc., 834 F.2d 697, 704 (8th

Cir. 1987). Although reducing the number of opposite-sex

staff on the pods may help to promote security, efficient

risk management and privacy, Milwaukee County has

failed to establish that its policy was reasonably necessary

for these goals. We address each proffered justification

in turn.

The evidence in the record does not support the conclusion that the juveniles’ safety or security, or the institution’s ability to manage risk effectively, was at all in

jeopardy because of the presence of opposite-sex JCOs on

the third shift. The district court correctly asserted that

heterosexual assaults and misconduct are statistically

more likely than homosexual attacks. The record estab-
16 No. 07-2534

lishes, however, that there has not been a single instance

of staff-on-inmate sexual assault at the JDC, on any shift,

by either sex; nor has there been a significant problem

with false accusations against the staff. Furthermore, other

safety precautions, such as door alarms and the presence

of supervisors, runners and video cameras, currently are

working to prevent actual and alleged security breaches.

Although Milwaukee County contends that a staff member may be able to circumvent the alarm system in order

to enter a juvenile’s cell at night, the record contains

no evidence that this contingency has occurred or was

likely to occur at the JDC.

More fundamentally, Milwaukee County offered no

reasons why the numerous alternatives to same-sex

staffing suggested by the plaintiffs at trial, such as improving the alarm system, installing additional cameras, leaving

the doors open between the pods at night or increasing

the frequency of supervisor patrols, would not have

mitigated any concern. Notably, Mr. Wanta testified at

trial that he had not investigated the cost of any of these

options. He did assert that adding an additional staff

member on each of the pods during the third shift would

have been prohibitively costly; however, he did not

provide any data on this point, and such an augmentation

in personnel certainly was not the only option available

to minimize the already-minimal risk of staff-on-juvenile

sexual assault. The BFOQ defense extends only to those

policies that are “reasonably necessary to the normal

operation” of the institution, 42 U.S.C. 2000e-2(e)(1). It

does not excuse investigation of and reliance upon alterna-
No. 07-2534 17

See, e.g., Chambers, 834 F.2d at 701 (noting that “[t]he employer 7

must demonstrate that there is a compelling need to maintain

that practice, and the practice cannot be justified by routine

business considerations” (internal quotation marks omitted)).

tives that involve minor additional costs or inconveniences.7

Milwaukee County’s proffered privacy justification is

even more difficult to justify on the record before us. The

record affirmatively shows that the JDC allowed JCOs of

the opposite sex to monitor the pods during both of the

daytime shifts. It is undisputed that the vast majority of

the time that the juveniles were unclothed occurred during

these daytime shifts. Showering generally took place

during the second shift, when members of the opposite

sex were permitted to staff the pods. The only showering

that occurred on the third shift was monitored by one of

the runners who performed the intake procedures. The

juveniles were provided with pajamas, which they were

required to wear at night. They changed into this attire

on the second shift, and they changed out of it on the

first shift—again, while JCOs of the opposite sex were

permitted to view them. Although Milwaukee County

presented testimony that third-shift JCOs occasionally

viewed juveniles using the toilet, masturbating or otherwise acting out sexually, it is undisputed that this situation occurred on the first and second shifts as well.

This situation is therefore very different from cases

such as Torres, 859 F.2d at 1530, and Everson, 391 F.3d at

753, which involved the presence of male guards in the
18 No. 07-2534

housing units of all-female prisons. In Torres, we held that

the superintendent reasonably made a “professional

judgment that giving women prisoners a living environment free from the presence of males in a position of

authority was necessary to foster the goal of rehabilitation.” 859 F.2d at 1530. In Everson, the court determined

that, “given the endemic problem of sexual abuse in

Michigan’s female facilities” and other unique circumstances, 391 F.3d at 761, the presence of male guards, at

any time, in the housing units was a threat to “the

security of the prison, the safety of inmates and the protection of the privacy rights of inmates,” id. at 753. In

Everson and Torres, prison officials permitted no officers

of the opposite sex to guard the living units at any time

because the specific needs of the institutions and the

prisoners housed in those institutions reasonably required such a policy. The same-sex policy was aimed at a

specific condition and was tailored to address that

specific condition. The plans were quite clearly “the

product of a reasoned decision-making process, based on

available information and experience.” Torres, 859 F.2d at

1532. Here, by contrast, we are faced with the fact that the

JDC allowed JCOs of the opposite sex to guard the juveniles during those times when the privacy interests of the

juveniles were most in jeopardy. Under these circumstances, we cannot say that, with respect to privacy

concerns, the same-sex policy is the product of the same

sort of comprehensive professional decision-making as

exhibited in Torres and Everson. The inconsistencies in

implementation cast a significant doubt on whether the

policy is reasonably necessary to achieve the institution’s
No. 07-2534 19

Ms. Henry and Ms. Lewis take issue with the district court’s 8

determination that rehabilitation is part of the “essence of the

business” of the JDC. They note that neither the Wisconsin

regulations nor the JDC’s own mission statement mentions the

word “rehabilitation.” They also assert that the juveniles are in

the JDC for very brief periods of time, and, unlike in a penal

institution, rehabilitation in a short-term detention facility is

a futile goal.

Based on its interpretation of the juvenile justice statute and

the JDC’s mission statement, as well as on testimony from Mr.

Wanta and others, the district court concluded that rehabilitation indeed was part of the essence of the JDC’s business.

Wisconsin’s juvenile justice code requires the juvenile justice

system to take action directed at providing the best possible

care for the juveniles and at preventing future delinquent

behavior by developing their ability to lead productive and

responsible lives. Wis. Stat. § 938.01(2)(c), (f). Wisconsin courts

also have recognized the rehabilitative goals of the juvenile

justice system. See In re Hezzie R., 580 N.W.2d 660, 668 & n.4

(Wis. 1998). Mr. Wanta and other administrators testified that

the juveniles’ time at the JDC, generally a result of a crisis

situation, is often a valuable opportunity for intervention and

(continued...)

goal of protecting the privacy interests of the juveniles.

Therefore, on this factor as well, the record reveals a

failure of proof on the part of Milwaukee County.

The County also contends that same-sex staffing on the

third shift is necessary to further the JDC’s mission of

rehabilitation. Contrary to the submission of the plaintiffs, we have no doubt that the County is correct in stating

that this goal is a very important goal of the institution.8
20 No. 07-2534

(...continued) 8

rehabilitation. Tr. at 623-24. This evidence supports the district

court’s finding that rehabilitation is part of the “essence” of

the JDC.

See, e.g., Office of Juvenile Justice and Delinquency Prevention 9

(“OJJDP”), Delinquency Prevention: Desktop Guide to Good Juvenile

Detention Practice (Roush ed., 1996), R.48, Ex. 1013 (praising

the virtues of direct supervision over indirect supervision).

The record contains substantial testimony from

Mr. Wanta on this factor. He described the basis for his

determination that a role model/mentoring policy was

necessary to the JDC’s rehabilitative efforts. Tr. at 607-19,

634-35, 658-60. He noted that, in formulating the policy, he

had relied upon his own experience with juvenile corrections, information learned from his attendance at various

seminars and committee meetings, his interviews with

the juveniles and staff at the JDC, consultations with

experts in the field and professional literature supporting

such programs. Each of these sources suggested that the 9

direct role modeling/mentoring form of supervision, rather

than the indirect form of supervision, was the best available method of providing care and rehabilitation to

juveniles in detention facilities. Mr. Wanta, in his professional judgment, concluded that institution of the direct

role model/mentoring form of supervision was necessary

to achieve the JDC’s mission of rehabilitation. The foundation for his belief is well established in the record.

The conclusion that the effectiveness of these role

model/mentoring programs requires the presence of at
No. 07-2534 21

least one staff member of the same sex as the juveniles in

each pod at all times, however, does not find the same

strong foundation in the record. Mr. Wanta expressed

his belief that same-sex role model/mentoring was more

effective than cross-gender programs. He testified that, in

formulating this view, he relied upon his own personal

experiences, as well as literature on mentoring programs,

which “indicate that gender mentoring improves the

chances of child behavior changes being positive.” Tr. at

635. He continued: “[A]ll the statistics and the research

that I have seen indicates that a male mentoring a male,

and a female mentoring a female, exponentially increases

the chance of success than would cross-gender . . .

mentoring.” Id.

In support of his belief, Mr. Wanta referenced a

report from the Office of Juvenile Justice and

Delinquency Prevention (“OJJDP”), Juvenile Mentoring

Programs: A Progress Review (Sept. 2000), R.48, Ex. 1022.

Although this publication was not available at the time

of his decision, he suggested that it supported his view

that same-sex role modeling was necessary for rehabilitation. This report, however, is specific to one-on-one mentor

matching programs for at-risk youth. Moreover, its findings regarding the effect of sex-specific assignments, even

in this circumstance, are inconclusive at best. See id. at 5.

Mr. Wanta did not explain how anecdotal evidence from

these after-school mentoring programs is relevant to the

vastly different juvenile detention setting. More importantly, it does not speak to the issue of whether, to achieve

success in mentoring, same-sex supervision on the third

shift, when the juveniles are isolated and likely asleep
22 No. 07-2534

See OJJDP, Psychiatric Disorders of Youth in Detention (April 10

2006), R.48, Ex. 1017 (discussing the prevalence of juveniles with

mental disorders in juvenile detention facilities); U.S. Dep’t of

Justice, Bureau of Justice Statistics, Prison Rape Elimination Act of

2003: Sexual Violence Reported by Correctional Authorities 2004 (July

2005), R.48, Ex. 1015 (discussing nationwide statistics on sexual

assault in correctional facilities); OJJDP, Juvenile Mentoring

Programs: 1998 Report to Congress (Dec. 1998), R.48, Ex. 1023

(discussing mentor matching programs outside the detention

context, and noting that most programs use gender as a matching criteria).

in their cells, is reasonably necessary. The other publications admitted into evidence by the County appear to

add little to this precise question.10

We are well aware that the professionals who have

the great responsibility for running penal institutions

need to innovate and experiment if they are to succeed

in resolving the crisis in this important area of governance. Indeed, we already have recognized that the

inability to proffer solid empirical evidence in support of

a particular policy certainly is not fatal to a BFOQ defense.

See Torres, 859 F.2d at 1532. Even if we defer to Mr. Wanta’s

judgment that a mentoring program is important to the

success of juvenile institutions such as the one he

manages, and even if we defer to his judgment with

respect to the need for same-sex mentoring of juveniles

in such an environment, we still must be satisfied in the

present litigation that these professional judgments

require a rigid rule that such a same-sex mentoring program reasonably necessitates the presence of a JCO of the
No. 07-2534 23

same sex at all times. Milwaukee County had the responsibility to introduce sufficient evidence in the record to

support the conclusion that such same-sex presence at

all times was reasonably necessary to meet the institution’s essential goals. Here, the record, although perhaps

demonstrating the worth of a mentoring program and

the usefulness of mentors of the same sex, does not

present a sufficiently strong case with respect to the need

for the presence of those mentors seven days a week and

twenty-four hours a day.

At trial, Mr. Wanta explained how the JCOs were to

act as role models and mentors at the JDC:

On a practical sense, I just wanted a staff member to be

a good, positive person. To display positive attitude.

To display respect towards the juvenile. Respect

towards your peers. Respect toward any individual

that came across their area. To model how to interact.

Whether interacting with that juvenile, so the other

juveniles who observe can see that interaction going

on and the positive outcomes to that type of interaction. Interaction with your peers in a positive way. . . .

[T]he biggest focus was . . . for staff to demonstrate

proper behavior.

Tr. at 609. JCOs were not trained or expected to act as

counselors; if any serious counseling was necessary, the

JCOs were instructed to refer the juvenile to an on-site

nurse trained in mental health. Instead, the JCOs carried

out their role model/mentoring responsibilities by providing the juveniles with a constant model of proper

behavior in their interactions with others.
24 No. 07-2534

Given this description of the role of JCOs in the

mentoring program, we must conclude that the record does

not respond to the question of why a JCO of the same

sex is reasonably necessary during the night shift. According to the record, the opportunity for the JCO to

interact with the juveniles on the third shift is very minimal. The third shift begins after the juveniles are locked

down for the night, and the JCOs on third shift were

instructed to encourage them to sleep. Although there

was testimony at trial that staff occasionally spoke with

juveniles through their doors at night, particularly when

they were ill or acting out and it was necessary to calm

them down, this interaction was kept to a minimum. There

is no evidence that the JCOs ever spoke with the juveniles

about confidential counseling matters at night. Indeed,

because the other juveniles in the pod would have been

able to hear any conversations that occurred, the JCOs

testified at trial that they were encouraged to avoid these

types of discussions on the third shift.

The County provided no reasons why opposite-sex

JCOs were incapable of appropriately interacting with

these juveniles to the extent necessary to provide a good

behavioral role model on the third shift. Mr. Wanta’s

assertion that “consistency” in the same-sex mentoring

program requires the presence of someone of the same

sex within each pod at all times is simply not justified by

the record. Furthermore, the County failed to provide

evidence that the many non-discriminatory alternatives

proffered by the plaintiffs would have been intolerable

here. The plaintiffs questioned Mr. Wanta about numerous other possibilities for encouraging rehabilitation
No. 07-2534 25

through the availability of same-sex staff, such as hiring

more JCOs for the third shift, leaving the doors between

pods open or increasing the frequency of supervisor

rotations. They also noted that numerous other mechanisms to encourage rehabilitation already were in place

at the facility, including educational programs, counselors,

guest speakers, community mentors and other programs

available to facilitate the JDC’s mission. The County

failed to explain why the presence of a same-sex JCO

within each pod during the hours that the juveniles were

sleeping was reasonably necessary to its rehabilitative

efforts.

Accordingly, we must conclude that the County failed

to meet its burden to prove that the sex-based classification at issue here was reasonably necessary for the rehabilitation, security or privacy functions of the JDC.

Therefore, Milwaukee’s BFOQ defense must fail. The JDC’s

third shift policy adversely affected the plaintiffs’ employment. It is undisputed that overtime pay had been a

significant and expected component of the plaintiffs’

compensation prior to the institution of the sex-based

policy. Not only did the majority of overtime work available occur on the third shift, but the third shift also

offered a fifty cent per hour pay premium. Accordingly,

the dramatic reduction in the opportunity for women to

work on the third shift constituted an adverse employment action. See Lewis v. City of Chicago, 496 F.3d 645, 653-

54 (7th Cir. 2007) (holding that the denial of the opportunity for overtime pay, when that pay is a significant and

recurring part of an employee’s total earnings, can constitute an adverse employment action). Because the JDC’s
26 No. 07-2534

third-shift policy adversely affected the plaintiffs’ employment opportunities, we must conclude that it is in

violation of Title VII.

C.

Finally, we turn to the plaintiffs’ workplace harassment

and retaliation claims. Both plaintiffs testified regarding

a number of incidents that occurred, both before and

after they had filed their EEOC charges, which they

believed were forms of harassment and retaliation. The

district court, however, held a bench trial and determined

that these incidents were merely trivial inconveniences

and isolated acts that did not rise to the level of harassment necessary to establish a claim under either the

discrimination or retaliation provisions of Title VII. The

court also found that the plaintiffs did not present any

evidence of a causal connection between their sex or their

complaints and the alleged harassment. We review these

findings of fact for clear error. Fed. R. Civ. P. 52(a); Cerros,

288 F.3d at 1044.

Title VII prohibits sex discrimination in the terms and

conditions of employment. Jackson v. County of Racine,

474 F.3d 493, 499 (7th Cir. 2007). In order to establish a

Title VII claim based on workplace harassment, then, the

plaintiffs must prove that a reasonable person would

find the alleged harassment to be so severe or pervasive

as to create a hostile work environment, thus affecting the

terms and conditions of employment. Id.; Kriescher v. Fox

Hills Golf Resort & Conf. Ctr. FHR, Inc., 384 F.3d 912, 915

(7th Cir. 2004). Furthermore, they must show that there
No. 07-2534 27

is a “link between this treatment and [their] sex.” Jackson,

474 F.3d at 499.

The analysis regarding the plaintiffs’ retaliation claims

is similar. Title VII prohibits employers from discriminating against employees who report or oppose practices

made unlawful under Title VII. 42 U.S.C. § 2000e-3(a). The

range of conduct prohibited under the anti-retaliation

provision is broader than its anti-discrimination provision,

however, because “the discriminatory acts proscribed by

Title VII’s anti-retaliation provision are not limited to

those that affect the terms and conditions of one’s employment.” Lewis, 496 F.3d at 655 (internal quotation

marks and citation omitted). Nevertheless, in order to

establish a claim for retaliation under Title VII, the plaintiffs must prove that the alleged employment actions were

materially adverse such that they would dissuade a

reasonable person from engaging in protected activity. Id.

Additionally, they must show a causal link between these

alleged adverse actions and their protected activity. Basith

v. Cook County, 241 F.3d 919, 933 (7th Cir. 2001).

After a review of the record, we conclude that the

district court did not err in its determination that the

alleged incidents did not rise to the level of harassment or

retaliation. The Supreme Court has emphasized the

necessity of separating “significant from trivial harms.”

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006). It further cautioned that “[a]n employee’s decision

to report discriminatory behavior cannot immunize that

employee from those petty slights or minor annoyances

that often take place at work.” Id. Title VII’s anti-retaliation
28 No. 07-2534

provision prohibits only those employer actions that are

likely to deter victims of discrimination from invoking the

Act’s remedial mechanisms. Id. We agree with the district

court that the alleged incidents, such as being told not

to wear sweaters or eat in front of the juveniles, unspecified “intimidation” and door slamming by the head of

shift, missing or marked up time-cards, occasional early

morning phone calls, and not being assigned to work

together on the same shift or in easier pods are the type

of petty slights and minor annoyances that generally will

not create such deterrence. Additionally, because these

incidents do not rise to the level of an adverse action

under the anti-retaliation provision of Title VII, they

certainly do not constitute workplace harassment sufficient to establish a discrimination claim. See id. at 67.

Furthermore, the district court did not err when it

concluded that the plaintiffs had failed to prove a causal

link between their discrimination complaints and the

alleged harassment. The plaintiffs did not even attempt to

show that any of the alleged harassment was tied to their

sex. As for retaliation, the plaintiffs point only to “suspicious timing” and an allegation that they were referred to

as “troublemakers” to suggest that the incidents of which

they complain were a result of retaliation for their protected activity. The district court here found that the

timing of the incidents in question was not suspicious;

the difficulties the plaintiffs had been having with their

managers had been ongoing well before they engaged in
No. 07-2534 29

Furthermore, suspicious timing alone is not enough to 11

establish causation. See, e.g., Sauzek v. Exxon Coal USA, Inc., 202

F.3d 913, 918 (7th Cir. 2000) (“Speculation based on suspicious

timing alone, however, does not support a reasonable inference

of retaliation; instead, plaintiffs must produce facts which

somehow tie the adverse decision to the plaintiffs’ protected

actions.”); Culver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir.

2005) (noting that timing “will rarely be sufficient in and of

itself to create a triable issue”).

any protected activity. The district court further found 11

that the managers’ alleged use of the term “troublemakers”

was not in reference to any of the plaintiff’s protected

activities. R.60 at 10. Instead, it found that the plaintiffs

in fact had been difficult employees, constantly lodging

trivial grievances and generally complaining whenever

superiors tried to correct their behavior; the term “troublemaker” had been used in reference to the plaintiffs’ general

behavior, not their EEOC complaints. Id. We cannot say

that this finding was clearly erroneous.

Conclusion

Accordingly, the judgment of the district court is affirmed in part and reversed in part. The case is remanded

to the district court for proceedings consistent with this

opinion. The parties shall bear their own costs in this

appeal.

AFFIRMED in part;

REVERSED and REMANDED in part
30 No. 07-2534

EASTERBROOK, Chief Judge, concurring. The court’s opinion applies Torres v. Wisconsin Department of Health &

Social Services, 859 F.2d 1523 (7th Cir. 1988) (en banc).

I dissented from that decision, because I thought that

the majority’s approach could allow an employer to

establish a bona fide occupational qualification on the

basis of wishful thinking rather than proof. 859 F.2d at

1535–38. After Torres the Supreme Court emphasized that

the BFOQ defense requires an employer to prove that

“objective, verifiable requirements [that only one sex can

fulfil] . . . concern job-related skills and aptitudes.” Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991).

See also Dothard v. Rawlinson, 433 U.S. 321 (1977). Cf.

Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995). But we need

not decide whether Torres requires a fresh look, because

the court’s opinion (which I join) shows that the employer’s justifications flunk the Torres standard.

Milwaukee County decided that at least one guard of

the same sex as the prisoners is necessary not only for

the prison as a whole (to perform body-cavity searches,

for example), but also for each pod in the prison. A pod

in Milwaukee’s Juvenile Detention Center may contain as

few as 11 inmates, and because women occupy only one

pod the County’s policy reduced women’s opportunities

for employment as guards. The County expresses concern

about sexual assaults but admits that no guard has ever

sexually assaulted any prisoner in its care—and data from

prisons elsewhere do not show that female guards are

likely to assault male prisoners sexually. That left the

County with stereotypes, such as the proposition that
No. 07-2534 31

guards of the same sex serve as mentors or role models

for the prisoners.

I call this a stereotype because it is based on folk wisdom.

It could, in principle, be based on facts, such as proof that

recidivism rates fall (or legitimate income after release

rises) when a prison has more guards of the inmates’ sex.

But the County conceded that it lacked such data when

it adopted this policy, and neither expert witnesses nor

any published studies supplied an empirical foundation

for the policy at trial.

Employers frequently assert that inmates (or students)

respond more favorably to guards (or teachers) of their

own sex or race. If this sort of justification had been

advanced for matching the race of the inmates and the

guards (or students and their teachers), courts would not

go along. See Wygant v. Jackson Board of Education, 476 U.S.

267 (1986). Cf. United States v. Virginia, 518 U.S. 515 (1996).

(Whether short boot-camp programs are exceptional for

this purpose, see Wittmer v. Peters, 87 F.3d 916 (7th Cir.

1996), is not important to a case that involves the longterm operation of regular prisons.) Why then should

courts accept the same sort of “justification” for sex

discrimination?

The majority in Torres concluded that Title VII should

not be used to block experiments that might lead to the

sort of data that would establish a BFOQ. Twenty years

have passed since Torres, and Wisconsin’s prisons (like

those in other states) have had ample opportunity to try

different policies. Other states (and other prisons in

Wisconsin) allow people to guard the opposite sex both
32 No. 07-2534

day and night; data should not be hard to come by. But

instead of producing data, the defendants in this case

reiterated sexual stereotypes. A court that permits a state

(or for that matter a federal agency) to make decisions

influenced by intuitions about what the data ultimately

will show must insist that the state (or agency) find out

whether those intuitions are sound or simply superstitions. See Bechtel v. FCC, 10 F.3d 875 (D.C. Cir. 1993).

Wisconsin has not made anything of the 20 years’ breathing space provided by Torres, and the time has passed

when cheap talk and unverifiable assertions of “professional experience” may substitute for the kind of evidence

that Johnson Controls and Dothard contemplate.

8-20-08