Roslyn EVERSON; Randy Fox; Stennis George; Brenda L. Sebastian, and a class of all persons similarly situated, Plaintiffs-Appellees, v. MICHIGAN DEPARTMENT OF CORRECTIONS; Bill Martin, individually and in his official capacity as Director of the Michigan Department of Corrections, Defendants-Appellants (02-2033), Linda Nunn; Tracy Neal, Intervening Defendants-Appellants (02-2028/2084).
Nos. 02-2028, 02-2033, 02-2084
United States Court of Appeals, Sixth Circuit
Argued: Feb. 4, 2004. Decided and Filed: Dec. 3, 2004.
391 F.3d 737
ROGERS, Circuit Judge.
There is no question that there was sufficient evidence for the jury to conclude that Lawrence‘s discriminatory animus somehow influenced Ficorilli‘s termination decision. Because the jury was permitted to reject Ficorilli‘s fabricated reason as the cause of Noble‘s termination, it was entitled to infer that the true cause was the discriminatory animus of Noble‘s former manager of which Ficorilli had just been apprised by Wiseman. Indeed, there appears to be no other explanation for Ficorilli‘s fabrication.
There is no doubt that legal liability may attach to Brinker as a result of the actions of Lawrence and Ficorilli. The Supreme Court has held that “a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Thus, “it would be implausible to interpret agency principles to allow an employer to escape liability” when a supervisor subjects an employee to the tangible employment action of termination. Id. at 761, 763, 118 S.Ct. 2257. When, as herein, a reasonable jury could find that a supervisor not only acted as a conduit for a former‘s supervisor‘s discriminatory animus, but also knowingly based his termination decision on that animus, the employer is unquestionably subject to vicarious liability. For these reasons, there is absolutely no basis for the majority to hold that Brinker is entitled to judgment as a matter of law.
III. Conclusion
For all the foregoing reasons, I would affirm the judgment below.
Roslyn EVERSON; Randy Fox; Stennis George; Brenda L. Sebastian, and a class of all persons similarly situated, Plaintiffs-Appellees, v. MICHIGAN DEPARTMENT OF CORRECTIONS; Bill Martin, individually and in his official capacity as Director of the Michigan Department of Corrections, Defendants-Appellants (02-2033),
Nos. 02-2028, 02-2033, 02-2084.
United States Court of Appeals, Sixth Circuit.
Argued: Feb. 4, 2004.
Decided and Filed: Dec. 3, 2004.
Before: NORRIS, GILMAN, and ROGERS, Circuit Judges.
OPINION
ROGERS, Circuit Judge.
Following separate lawsuits by female prisoners in Michigan and by the Civil Rights Division of the United States Department of Justice, both of which alleged rampant sexual abuse of female prisoners in Michigan, the Michigan Department of
BACKGROUND
At the time of trial, the MDOC managed a population of approximately 2000 female prisoners.1 Currently, the MDOC houses most of its female prisoners at three facilities. The Robert Scott Correctional Facility (the “Scott Facility“), located in Plymouth, Michigan, is a multilevel prison with an operating capacity of 860 prisoners, and it serves as the reception center for all incoming female prisoners. The Western Wayne Correctional Facility (the “Wayne Facility“), also located in Plymouth, Michigan, is a secure Level I facility with an operating capacity of 775. Camp Brighton, located near Pinckney, Michigan, is a Level I facility with barracks-style housing, and it has an operating capacity of 358.
At the time of trial, the MDOC employed approximately 19,000 persons, about 9400 of whom served as COs and RUOs. The duties of COs and RUOs in the housing units include patrolling the sleeping, shower, and bathroom areas, attending to the basic needs of women prisoners (including the provision of sanitary supplies), monitoring activity in the living quarters, enforcing housing rules and procedures, and assuring that proper standards of care and hygiene are maintained. RUOs staff the housing units on the first and second shifts, while COs staff the housing units on the third shift. CO positions outside the housing units include intake officer and transportation officer. Intake officers shepherd prisoners through the intake process, during which new prisoners are strip searched, fingerprinted, and showered, and during which paperwork is completed on the prisoners. Intake officers examine prisoners while they are naked. Among other things, transportation officers drive inmates to prisons to which they have been transferred and to medical appointments. Sometimes during transportation, female prisoners, who are placed in restraints, require the assistance of a transportation officer to use the bathroom.
The parties have provided only a partial picture of the staffing at Michigan‘s female prisons. According to the testimony of Lori Sahl, a corrections officer employed at the Wayne Facility, there are three officers per shift assigned to each housing unit at the Wayne Facility. Each unit comprises a pair of wings which house between 80 and 90 inmates each. One
The problem of sexual abuse2 and other mistreatment of female inmates has long plagued the MDOC. In 1993, following interviews of a number of inmates, the Michigan Women‘s Commission3 advised the MDOC that it believed that “sexual assault and harassment are not isolated incidents and that fear of reporting such incidents is a significant problem.” In 1996, after an independent investigation, Human Rights Watch issued a report concluding that “rape, sexual assault or abuse, criminal sexual contact, and other misconduct by corrections staff are continuing and serious problems within the women‘s prisons in Michigan [and] have been tolerated over the years at both the institutional and departmental levels.”4 Human Rights Watch also charged that the male corrections staff routinely violated the privacy rights of inmates by, for example, abusing their power to conduct “pat-down” searches and improperly viewing inmates as they used the shower or toilet. Later, in 1998, Human Rights Watch issued a second report describing a campaign of retaliation by corrections staff against several women who had made public accusations of sexual abuse. In 1999, following its own investigation, the United Nations Commission on Human Rights seconded Human Rights Watch‘s charge that corrections officers systematically retaliated against women who reported sexual abuse.
Statistics compiled by the parties add some content to the charge of rampant sexual abuse of female inmates in Michigan‘s prisons. According to the MDOC, between 1994 and January 31, 2001, it investigated 217 allegations of sexual mis-
In addition to public criticism, the MDOC faced a pair of high-profile lawsuits involving the sexual abuse of female inmates in this period. On March 27, 1996, a group of female inmates6 filed suit in the United States District Court for the Eastern District of Michigan against the MDOC and a number of state officials and corrections officers (the “Nunn lawsuit“). The inmates alleged rampant sexual misconduct, sexual harassment, violation of privacy rights, and retaliation by corrections officers, and they asserted violations of the First, Fourth, Eighth, Ninth, and Fourteenth Amendments under
In June of 1994, the Civil Rights Division of the United States Department of Justice (the “DOJ“) initiated an investigation of allegations of sexual abuse and other violations of the constitutional rights of inmates at a pair of Michigan women‘s prisons pursuant to the Civil Rights of Institutionalized Persons Act,
Two years later, on March 10, 1997, the DOJ filed suit against the State of Michigan in the United States District Court for the Eastern District of Michigan (the “USA lawsuit“) pursuant to the Civil Rights of Institutionalized Persons Act. The United States alleged that Michigan was violating the constitutional rights of female inmates by failing to protect them from sexual misconduct, by failing to prevent unlawful invasions of their privacy, and by failing to provide adequate medical and mental health care. After conducting extensive discovery, the United States dismissed its claims related to the provision of medical and mental health care. On May 25, 1999, the parties entered into a settlement agreement resolving the remaining claims (the “USA agreement“). In the USA agreement, Michigan pledged, among other things, to minimize access to secluded areas and one-on-one contact between male staff and female inmates, to implement a “knock and announce” policy whereby male officers must announce their presence prior to entering areas where inmates normally could be in a state of undress, and to restrict pat-down searches of female inmates by male staff.8 The MDOC also agreed to conduct a study exploring the feasibility of “redeploying officers to increase the presence of female officers in the housing units” and “rotating staff assignments to housing units,” and, if feasible, to implement a plan consistent with this study.
On June 25, 1999, and on October 25, 1999, the MDOC‘s Director issued Director‘s Office Memoranda to implement the USA agreement. On December 6, 2000, the Director signed a Policy Di-
Sometime in 1998, prior to the USA and Nunn agreements, the MDOC‘s Director9 appointed a Gender Specific Assignment Committee (the “GSAC“), consisting of a number of high-level MDOC officials, which was instructed to review officer assignments within Michigan‘s correctional facilities—both male and female—for the feasibility of making them gender-specific. In its final report, which was issued on December 11, 1998, the GSAC recommended gender-specific assignments to certain tasks, such as strip searches, pat-down searches, and urine collection. However, the GSAC unanimously endorsed gender neutrality in assignments to first- and second-shift positions in housing units, and a majority of the committee advised against gender-specific assignments to third-shift positions in housing units. Four of six members recommended that the MDOC move toward “gender balance“—meaning that, “where more than one officer is assigned, the second officer may be gender specific“—through attrition, stating that they did not “believe gender specific assignments are a viable option due to the labor pool and union contracts,” but observing that “some states have voluntarily implemented gender specific assignments on specific shifts through letters of agreement with the corrections officers’ union or have responded to various threats/instances of court intervention.” One of the dissenters advised that only females should be assigned to third-shift housing unit positions in female facilities, while the other advocated gender-specific assignments to third-shift housing unit positions in both male and female facilities.
Pursuant to the USA agreement, the MDOC commissioned Securicor New Century, LLC (“Securicor“), a consulting firm, to study ways to increase the presence of female officers in the housing units at Michigan‘s women‘s prisons. In particular, Securicor was instructed to explore the feasibility of redeploying female officers to positions in the housing units and of rotating staff assignments. Securicor‘s report, dated August 20, 1999, recommended a number of strategies for increasing the number of female officers in the housing units, including exploring the redeployment of all available female officers to housing units, covering RUO vacancies in the housing units with female COs, redeploying female officers in supervisory positions, exploring the possibility of rotating female officers assigned to housing units to different shifts and locations, creating incentives for female applications, changing
On October 13, 1999, during testimony before the House Appropriations Subcommittee on Corrections of the Michigan House of Representatives, Bill Martin, the MDOC‘s Director, disclosed that the MDOC was exploring the possibility of removing male officers from certain areas in female facilities, as well as female officers from certain areas in male facilities, in order to minimize incidents of sexual misconduct. On December 9, 1999, Martin formally announced his intention to remove male officers from female prisons, stating, “I am convinced that the single best way to protect [male officers‘] personal and professional lives is to remove them from those assignments in which they are most vulnerable” to allegations of sexual abuse. According to the district court, Martin was unaware of the GSAC‘s analysis when he made this decision, and there was no evidence presented at trial that any internal MDOC memoranda recommended such a step or that Martin had consulted the Michigan Department of Civil Rights or the Attorney General of Michigan regarding the change.
In February 2000, the MDOC hired Michael Mahoney10 to study “whether certain custody positions at MDOC women‘s facilities should be filled only by female custody staff or if there is a less intrusive means to ensure the safety and reasonable privacy needs of female inmates.” In June 2000, Mahoney issued a report concluding that only female officers should fill the CO and RUO positions in housing units, segregation units, and intake units at Michigan‘s women‘s facilities. He opined that this reform would reduce the likelihood of sexual misconduct, improve the security in the housing units by removing “gun-shy” male officers and by permitting increased surveillance of inmates, and reduce false allegations of sexual misconduct. Mahoney advised that reforms undertaken pursuant to the Nunn and USA settlements could not alone address the problems of sexual abuse and inmate privacy.
On August 2, 2000, the MDOC filed applications with the Michigan Department of Civil Service (the “MDCS“) for “selective certification” of CO and RUO positions in the housing units, segregation units, and intake units at its women‘s facilities as “female only.” In the applications, the MDOC reported that it had faced lawsuits alleging sexual misconduct and violation of privacy rights of female inmates, and had made a number of changes in response to these charges. However, it stated that “it is felt that these changes will not eliminate inappropriate behavior or sexual misconduct,” and it claimed that selective certification would
enhance the privacy of female prisoners, reduce the likelihood of sexual misconduct, the reduction [sic] of fear of sexual misconduct will enhance the ability of the [MDOC] to achieve its mission, security capabilities would be improved due to much less reluctance by female staff to perform observation duties, and female staff only in housing units would reduce the likelihood of instances where individual male staff and individual female prisoners would be involved in long isolated contacts.
On August 14, 2000, the MDCS approved the MDOC‘s applications without a hearing. As of the summer of 2001, the certification affected 267 positions—257 CO and RUO positions in housing units, 8
On July 12, 2000, the plaintiffs11 filed suit against the MDOC and Bill Martin, the MDOC‘s director, in his official capacity and individually, in the United States District Court for the Eastern District of Michigan. The plaintiffs alleged that gender-based assignments at female correctional facilities violated Title VII of the Civil Rights Act of 1964 (“Title VII“),
On September 28, 2000, the district court entered a temporary restraining order, which enjoined the MDOC and Martin “from implementing the plan to make gender-specific assignments and/or to allow only female staff to hold Corrections Officer and Resident Unit Officer positions in work assignments in housing units, segregation units and/or intake units at the Robert Scott, Western Wayne, and Camp Branch Correctional Facilities.” On October 13, 2000, the district court granted a motion for intervention filed by a group of female inmates—specifically, the certified class from the Nunn Lawsuit and the certified class in Neal v. MDOC, No. 96-6986-CZ (Washtenaw Co. Cir. Ct.), another class action by female inmates against the MDOC alleging sexual abuse, privacy violations, and retaliatory conduct by male staff.
The bench trial began on February 13, 2001, and continued over nine days until March 7, 2001. On July 11, 2002, the district court entered a decision and a declaratory judgment providing that gender-based assignments to the CO and RUO positions at the Scott Facility, the Wayne Facility, and Camp Brighton violate Title VII and the Elliott-Larsen Act. The court concluded that the implementation of the policy would have an adverse employment effect on the plaintiffs and that gender was not a bona fide occupational qualification. On August 8, 2002, the district court entered a final judgment, which permanently enjoined the defendants from implementing the plan to make gender-specific assignments to CO and RUO positions at the Scott Facility, the Wayne Facility, and Camp Brighton, and which dismissed the plaintiffs’ § 1983 claim against Martin with prejudice.12
Additionally, the district court determined that reasonable alternatives to the MDOC‘s plan exist. Specifically, it stated that the Securicor study identified a number of reasonable alternatives—in particular, covering vacancies with females, increasing female coverage where necessary with overtime, and redeploying female officers in supervisory positions—which the MDOC had not explored. Id. at 895. Additionally, it noted that the MDOC had not made efforts to enhance pre-employment screening to lessen the likelihood of employing high-risk male COs and RUOs in female prisons. Id. The court stressed, however, that nothing in its decision “should be read to prohibit the MDOC officials from making gender specific task assignments.” Id. at 899. The MDOC and Martin, as well as the intervening defendants, timely appealed.
ANALYSIS
The district court erred in finding that the female gender is not a BFOQ for the positions of CO and RUO in the housing units at MDOC‘s female facilities.13 Title VII of the Civil Rights Act of 1964 broadly proscribes gender-based discrimination in the workplace. See Grant v. Gen‘l Motors Corp., 908 F.2d 1303, 1306 (6th Cir.1990). The MDOC concedes that it has adopted a facially discriminatory plan, and this case therefore “turn[s] on whether such overt disparate treatment is for some reason justified under Title VII.” Reed v. County of Casey, 184 F.3d 597, 599 (6th Cir.1999) (internal quotation omitted). Title VII permits overt discrimination if the disparate treatment is based on a bona fide occupation qualification, or BFOQ. Id.
The BFOQ defense countenances gender-based discrimination “in those certain instances where . . . sex . . . is a bona
Courts have offered various formulations of the BFOQ defense, Dothard v. Rawlinson, 433 U.S. 321, 333, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), and from these decisions we distill the principles that lead us to the conclusion that the defense has been established in this case. First, “it is impermissible under Title VII to refuse to hire an individual woman or man on the basis of stereotyped characterizations of the sexes,” id., and an employer must have a “basis in fact,” id. at 335, for its belief that gender discrimination is “reasonably necessary“—not merely reasonable or convenient—to the normal operation of its business. Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th Cir.1971); see also Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 414, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985) (interpreting the BFOQ defense in the Age Discrimination in Employment Act (“ADEA“)). Courts have variously stated that an employer can meet this requirement by showing that “all or substantially all [members of one gender] would be unable to perform safely and efficiently the duties of the job involved,” Johnson Controls, 499 U.S. at 207, 111 S.Ct. 1196 (quoting Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228, 235 (5th Cir.1969)); that “it is impossible or highly impractical” to determine on an individualized basis the fitness for employment of members of one gender;15 Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 676 (9th Cir.1980) (quoting Weeks, 408 F.2d at 235 n. 5); or that “the very womanhood or very manhood of the employee undermines his capacity to perform a job satisfactorily,” Torres v. Wisc. Dep‘t of Health & Soc. Servs., 859 F.2d 1523, 1528 (7th Cir.1988) (en banc). Second, the Supreme Court has stressed that “in order to qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission of
In reaching the conclusion that the female gender is a BFOQ for the CO and RUO positions in this case, we are aided by a series of cases that directly address the issue of gender as a BFOQ for corrections officers in female correctional facilities. Reed, 184 F.3d at 600; 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); Torres, 859 F.2d at 1532. These decisions teach that the reasoned decisions of prison officials are entitled to deference and that the goals of security, safety, privacy, and rehabilitation can justify gender-based assignments in female correctional facilities.
Because of the unusual responsibilities entrusted to them, the redoubtable challenges they face, and the unique resources they possess, the decisions of prison administrators are entitled to a degree of deference, even in the Title VII context. As the Seventh Circuit, sitting en banc, observed, prison officials
must grapple 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.”
Torres, 859 F.2d at 1529 (quoting Rhodes v. Chapman, 452 U.S. 337, 352, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). To meet this daunting task, the court continued, “prison administrators always have been expected to innovate and experiment. Unless prison administrators try new approaches, the ‘intractable problems’ will remain and the lot of the incarcerated individual will not improve. Indeed, it probably will deteriorate.” Id. (internal citation omitted). Thus, the court concluded that, although the decisions of prison officials are not accorded as much deference in Title VII cases as they are in constitutional cases,16 “their judgments still 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; see also Robino, 145 F.3d at 1110 (holding that the professional judgments of prison administrators are entitled to deference); cf. Tharp, 68 F.3d at 226 (applying a “deferential balancing test” to constitutional component of plaintiffs’
The district court distinguished Torres and its progeny on the ground that the MDOC‘s 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.” Everson, 222 F.Supp.2d at 898. The court elaborated,
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.
Id. at 897. In defending the district court‘s ruling, the plaintiffs point to the district court‘s findings that Martin did not consult with his staff, that the MDOC did not submit its BFOQ request to the Michigan Department of Civil Rights, and that the GSAC study did not recommend gender-specific assignments.
The district court committed legal error in concluding that the MDOC had forfeited the deference normally afforded prison administrators. Cases may arise in which a prison official has acted so capriciously that his decision does not deserve deference, but the case at bar does not fall in this category. The MDOC was not obligated to follow any particular protocols in order to earn deference, and the district court applied too exacting a standard in dismissing the MDOC‘s deliberations as inadequate. In effect, the district court circumvented the rule of deference by second-guessing the procedures employed by the MDOC.
Though it did not exhaust its institutional resources, the MDOC made a considered decision that a BFOQ was necessary to address the grave problem of sexual abuse of female inmates. When Martin assumed the position of Director, the MDOC faced a pair of high-profile lawsuits and a chorus of public criticism charging that it had ignored, or covered up, widespread sexual abuse of its female inmates—a situation calling for prompt and decisive action. In the USA agreement, the MDOC agreed to study the feasibility of increasing the presence of female officers in the housing units,17 and, in the Nunn agreement, the MDOC agreed to make a good faith effort to limit the assignment of staff in housing units to female officers. J.A. at 1255, 1266. The Securicor study, undertaken pursuant to the USA agreement, recommended that the MDOC “explore the re-deployment of all available female corrections officers . . . to housing units.” J.A. at 994. Mahoney‘s report, which Martin commissioned prior to the MDOC‘s application for selective certification, recommended that only women be assigned to the CO and RUO positions in the housing, segregation, and intake units because, in Mahoney‘s opinion, only this action could ensure safe and humane conditions of confinement and the
The procedural shortcomings identified by the district court do not dictate a contrary conclusion. The district court apparently reasoned that, because Martin had a limited background in corrections,20 because Martin did not consult with the wardens of the female facilities before adopting the plan, because the MDOC did not seek approval from the Michigan Department of Civil Rights, and because the GSAC study did not recommend a BFOQ, the plan did not reflect the institutional expertise of the MDOC and, hence, did not merit deference. However, as discussed above, the evidence shows that Martin drew on some, though not all, of the resources and expertise of the MDOC in the course of settling the USA and Nunn lawsuits and formulating the plan. Moreover, the district court failed to recognize that courts defer to the judgments of prison administrators not simply because of their expertise. Additional reasons counsel in favor of a policy of judicial restraint: the ability of administrators to plan and muster resources, the primary nature of the executive—as opposed to the judicial—branch of government to run the prisons, and the respect owed to state sovereignty by the federal judiciary. Cf. Turner v. Safley, 482 U.S. 78, 85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). These considerations apply whether or not Martin acted unilaterally. Finally, none of the irregularities identified by the district court vitiated the MDOC‘s decision-making process. A prison official need not run his department as a participatory democracy nor build “unanimity of opinion” to win deference. Torres, 859 F.2d at 1532. Neither the district court nor the plaintiffs explain what sort of penological expertise the Michigan Department of Civil Rights would have contributed, and there was no statutory requirement that the MDOC obtain approval from the Department of Civil Rights.
Application of the correct legal standard, which mandates that we give due regard to the professional judgment of the MDOC, makes it clear that the female gender is a BFOQ for the CO and RUO positions in the housing units at female prisons in Michigan. Viewed in proper perspective, the exclusion of males from these positions is “reasonably necessary” to “the normal operation” of the MDOC‘s female facilities. The MDOC reasonably concluded that a BFOQ would materially advance a constellation of interests related to the “essence” of the MDOC‘s business—the security of the prison, the safety of inmates, and the protection of the privacy rights of inmates—and reasonable alternatives to the plan have not been identified.
Unquestionably, the security of the prisons relates to the essence of the MDOC‘S business, and the MDOC maintains that the presence of male COs and RUOs in female housing units imperils security in a number of ways. First, the presence of males in the housing units necessitates the use of “artificial barriers to security” such as covers for cell windows, doors on the toilet stalls, shower curtains, the moratorium on pat-down searches by male officers, and the “knock and announce” policy.22 Second, allegations of sexual abuse, whether true or not, create a “poisoned atmosphere” that breeds misconduct on the part of inmates and guards.23 Third, many
Giving due deference to the judgment of the MDOC, we agree that the MDOC‘s plan will significantly enhance security at the MDOC‘s female facilities. Support for the MDOC‘s position comes from Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), in which the Supreme Court held that the male gender was a BFOQ for prison guards in Alabama‘s maximum-security men‘s prisons. The environment in Alabama‘s penitentiaries was, in the words of the Court, “a peculiarly inhospitable one for human beings of whatever sex,” characterized by “rampant violence” and a “jungle atmosphere.” Id. at 334, 97 S.Ct. 2720 (internal quotations omitted). Noting that inmates were housed in dormitories rather than cells, that inmates were not segregated according to their offense or level of dangerousness, and that an estimated 20% of inmates were sex offenders, the Court found “a basis in fact for expecting that sex offenders who have criminally assaulted women in the past would be moved to do so again if access to women were established within the prison,” and it spotted “a real risk that other inmates, deprived of a normal heterosexual environment, would assault women guards because they were women.” Id. at 335, 97 S.Ct. 2720. The Court concluded,
The likelihood that inmates would assault a woman because she was a woman would pose a real threat not only to the victim of the assault also to the basic control of the penitentiary and protection of its inmates and other security personnel. The employees very womanhood would thus directly undermine her capacity to provide the security that is the essence of a correctional counselor‘s responsibility.
Id. at 336, 97 S.Ct. 2720. Similarly, in the instant case, a “basis in fact” exists that “privacy screens” preclude proper surveillance of inmates and that allegations of sexual abuse engender hesitancy in male officers and mistrust between inmates and guards, and thus the “very manhood” of male COs and RUOs undermines their capacity to provide security.
The safety of inmates also indisputably relates to the essence of the MDOC‘s business, and the MDOC believes that it must eliminate males from the CO and RUO positions in the housing units in order to safeguard female inmates from sexual abuse. The defendants state that males perpetrate most of the sexual abuse in its female facilities, noting that, according to the plaintiffs’ calculations, between 1994 and 2000, 189 of 208 allegations of sexual misconduct—including all of the sustained allegations—were made against male (officer and non-officer) employees, while the remaining 19 allegations were made against female employees or non-employees. J.A. at 700. The defendants also claim that sexual abuse most frequently occurs in the housing units, noting that, according to the MDOC‘s figures, 39% of the allegations of sexual misconduct arose in housing units, and that, according to the testimony of a MDOC expert, 57% of “alleged incidents” occurred in housing units. MDOC Br. at 8-9; R. 112, Tr. at 82. The defendants further argue that corrections officers commit a majority of the sexual abuse, noting that, according to the plaintiffs’ figures, 125 of 208 allegations of sexual misconduct were lodged against male officers. J.A. at 700. Finally, while conceding that the vast majority of male COs and RUOs conduct themselves professionally, the MDOC contends that it cannot predict which officers will engage in sexual abuse.
The MDOC has established that the exclusion of male COs and RUOs from the housing units will decrease the likelihood of sexual abuse. As we have emphasized, the MDOC‘s decision receives “substantial weight,” Torres, 859 F.2d at 1532, and, given the severity of the harm to sexually abused inmates, the MDOC may set “more stringent” qualifications for officer positions. Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 676 (9th Cir.1980) (quoting Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 236 (5th Cir.1976)). As the data cited above shows, some male officers possess a trait precluding safe and efficient job performance—a proclivity for sexually abusive conduct—that cannot be ascertained by means other than knowledge of the officer‘s gender, and thus gender was “a legitimate proxy” for a safety-related job qualification. Cf. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 414-15, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985) (applying “legitimate proxy” standard in an ADEA case). As the Ninth Circuit found in analogous circumstances, MDOC‘s decision to designate certain positions as female-only was “a reasonable response to concerns about inmate privacy and allegations of abuse by male [officers].” Robino v. Iranon, 145 F.3d 1109, 1111 (9th Cir.1998).
The district court erred in concluding that the safety interests of female inmates did not support a BFOQ. The court reasoned that the MDOC‘s plan was not reasonably necessary because the MDOC had only recently implemented the reforms mandated by the USA and Nunn agreements, because improper conduct had decreased since the implementation of the reform, and because only a minuscule percentage of male officers sexually abuse inmates.25 Everson, 222 F.Supp.2d at 894-95. Further, the court relied on the lack of effort “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.” Id. at 895.
The district court applied too restrictive a standard in rejecting the MDOC‘s safety-based argument. Apparently, the court thought that the MDOC could establish a BFOQ only by showing 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.” Id. However, as discussed above, the “all or substantially all” standard represents just one formulation of the “reasonable necessity” requirement, and the “impossible or highly impractical” standard better suits the instant case. No amount of sexual abuse is acceptable, and, given the gravity of the harm visited on the victims of sexual abuse, the MDOC permissibly eschewed the “wait-and-see” approach commended by the district court. None of the parties claims that the reforms mandated by the USA and Nunn agreements will completely eradicate sexual abuse, and the MDOC acted within the narrow confines of the BFOQ defense when it undertook a policy reasonably calculated to bring sexual abuse to an irreducible minimum.
The district court also erred in concluding that pre-employment screening constituted a reasonable alternative to a female BFOQ. Harley Stock, an expert for the plaintiffs, testified that the MDOC could reduce its risk of hiring applicants likely to engage in sexual abuse by instituting psychological testing and making other changes in its pre-employment screening. However, Stock conceded that (1) the tests he proposed do not measure a subject‘s proclivity for sexual abuse specifically, but instead place subjects into high risk categories that “might include such things as inappropriate sexual behavior” or assess “the ability to relate to members of the opposite sex,” (2) he had not conducted follow-up studies to assess the accuracy of his testing methods, (3) his proposed testing is valid only for a year, and (4) he saw the testing of current employees as a “problem.” R. 116, Tr. at 40-43, 47, 54-55. Given its speculative value, and its limited applicability, testing does not qualify as a reasonable alternative to gender-specific assignments.
The privacy rights of Michigan‘s female inmates also weigh in favor of a BFOQ. “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). “Thus, while inmates may lose many of their freedoms at the prison gate, they retain ‘those rights [that are] not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.‘” Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (quoting Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)). Our court has recognized that “a convicted prisoner maintains some reasonable expectations of privacy while in prison, particularly where those claims are related to forced exposure to strangers of the opposite sex, even though those privacy rights may be less than those enjoyed by non-prisoners.”26 Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir.1992); see also Kent v. Johnson, 821 F.2d 1220, 1227 (6th Cir.1987) (assuming that “there is some vestige of the right to privacy retained by state prisoners and that this right protects them from being forced unnecessarily to expose their bodies to guards of the opposite sex“). As one of our sister circuits has explained, most people “have a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating. When not reasonably necessary, that sort of degradation is not to be visited upon those confined in our prisons.” Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir.1981); see also York v. Story, 324 F.2d 450, 455 (9th Cir.1963) (“We cannot conceive of a more basic subject of privacy than the naked body. The desire to shield one‘s unclothed figure from view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.“).27
Courts have recognized that this privacy interest can justify the exclusion of male officers from certain positions in female prisons. In Robino v. Iranon, a Hawaii women‘s correctional center asserted that the female gender was a BFOQ for 6 out of 41 corrections officer positions at a
The MDOC‘s policy similarly advances the privacy interests of Michigan‘s female inmates. The housing unit serves as inmates’ “home,” the place where they “let their hair down” and perform the most intimate functions like “like showering, using the toilet, dressing, even sleeping.” J.A. at 3089, 3371. In the housing units, inmates spend a great deal of time in close contact with the officers, who supervise “the most intimate aspects of an inmate‘s life in prison, what time they go to sleep, where they sleep, when they get up, brush their teeth, use the restroom, shower, dress.” J.A. at 3369; see also J.A. at 3291, 3368. Inmates must request sanitary napkins and other personal items from the officers. J.A. at 3565. Given these circumstances, the MDOC, in Martin‘s words, determined that “sound correctional practices” and “simple human decency” dictated the exclusion of males from CO and RUO positions in the housing units. J.A. at 3292.
The MDOC has instituted “privacy screens” to address the most severe invasions of privacy, but these measure are not failsafe. The MDOC has provided inmates with screens for their cell windows, but these screens do not cover the entire window and a male of “average height” can see over them. J.A. at 3147; see also J.A. at 3154. Officers can also see over the doors on the toilet stalls. J.A. at 3531. Opaque curtains shield inmates from view while they shower, but they are exposed when they reach outside the stall for a towel. R. 118, Tr. at 170, 242; see also R. 120, Tr. at 33-34; J.A. at 3564. Finally, although male staff are required to knock and announce before entering places
The MDOC has made a reasonable determination that its plan will protect the privacy rights of its female inmates. Regardless of whether its current conditions violate the constitutional rights of its inmates, a prison may invoke the BFOQ defense to justify measures taken to enhance inmate privacy. Robino, 145 F.3d at 1111; Carl, 883 F.Supp. at 1442 n. 3. Thus, the goal of “privacy” provides support for the MDOC‘s BFOQ defense.
In rejecting the MDOC‘s privacy-based argument, the district court erroneously determined that inmate privacy did not go to the “essence” of the MDOC‘s business. The court found that “there is nothing in any publication of the MDOC to suggest that the ‘privacy of prisoners, especially female, as the term is conventionally used, is a mission of the MDOC.‘” Everson, 222 F.Supp.2d at 878. But, as quoted a few pages earlier in the court‘s opinion, the “position descriptions” for the CO and RUO positions state that the “goal is to provide a safe, clean, secure, and efficient living environment while respecting the privacy of female prisoners, and enforcing rules and regulations.” Id. at 867; J.A. at 3737, 3744, 3756 (emphasis added). Additionally, in his report, Mahoney stated that the MDOC has hired him “to determine whether certain custody positions at women‘s facilities should be filled only by female custody staff or if there is a less intrusive means to ensure the safety and reasonable privacy needs of female inmates.” J.A. at 1426 (emphasis added). More importantly, when determining whether a particular job qualification relates to the “essence” of the employer‘s business, a court must undertake a functional analysis of the employer‘s business, and not simply look to the employer‘s mission statement or other documentation. Here, given the MDOC‘s legal responsibility to safeguard the privacy rights of its inmates, Director Martin‘s statement that respecting the privacy interests of female inmates represents “sound correctional practice” and “basic human decency,” and our common-sense understanding of corrections practice, it is beyond cavil that “privacy” relates to the essence of the MDOC‘s business.
In rejecting the MDOC‘s argument for a BFOQ, the district court stressed that the MDOC‘s plan departed from national norms. The court found that “standard practices nationwide provide for the employment of male corrections officers in female prisons” and that “there is nothing unique about the operation of the female prisons in Michigan.” Everson, 222 F.Supp.2d at 893. The court further found that “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.” Id. at 894. In short, the court reasoned that, because the MDOC‘s plan deviated from standard practice, the plan was not reasonably necessary to the normal operation of Michigan‘s female prisons.
The district court committed legal and factual error by using standard practice as a yardstick for the reasonable
In addition to this legal error, the district court clearly erred in finding “nothing unique” about Michigan‘s female prisons. In reaching this conclusion, the district court inexplicably failed to address Michigan‘s deplorable record regarding the care of its female inmates, which, absent evidence to the contrary, we must assume sets it apart from other states. In light of the endemic problem of sexual abuse, it was incumbent upon the MDOC to act decisively and creatively, and the lessons of Torres apply with special force. As Martin testified, and as we agree,
the [MDOC‘s] plan to assign only females in the housing units . . . challenges the thinking of the past 15 years or so that officers are officers and prisoners are prisoners no matter what their gender, but the [MDOC‘s] staff and prisoners have paid a high price for going along with this conventional wisdom and I believe that I should be given the flexibility to exercise my best judgment on staffing the housing units to make our female prisons as safe and secure as they can be for the staff, the prisoners, and the public.
J.A. at 3295. In brief, given the case-by-case nature of the BFOQ analysis, the flexibility afforded prison administrators, and the MDOC‘s unique history, the lack of a national consensus does not mean that the female gender is not a BFOQ for CO and RUO positions in Michigan‘s female prisons.
The district court also erred in finding that there are “reasonable alternatives” to the MDOC‘s plan. As noted above, an employer invoking the BFOQ defense has the burden of establishing that there are no reasonable alternatives to discrimination. Reed, 184 F.3d at 600. In addition to pre-employment screening, which is discussed above, the district court identified the following alternatives to female-only staffing of the CO and RUO positions in the housing units: covering vacancies with females; increasing female coverage where necessary with overtime; redeployment of female officers in supervisory positions; and eliminating the policy that each CO and RUO conduct five pat-down searches per shift. Everson, 222 F.Supp.2d at 895.
The MDOC has demonstrated that the district court erred in deeming these proposals “reasonable alternatives” to gender-
Before concluding, we emphasize the limited nature of our holding. We do not hold that gender constitutes a BFOQ for corrections officers in female prisons outside of Michigan. Nor do we hold that gender constitutes a BFOQ for positions in Michigan‘s female prisons beyond the approximately 250 positions we have discussed. Nor do we have occasion to address whether the male gender can ever be a BFOQ for a corrections officer position at a male prison. Rather, we simply conclude that, given the endemic problem of sexual abuse in Michigan‘s female facilities, given the constellation of issues addressed by the MDOC‘s plan (security, safety, and privacy), and given the deference accorded the MDOC‘s judgment, the MDOC‘s plan is reasonably necessary to the normal operation of its female prisons.
CONCLUSION
The district court prefaced its decision with a famous quotation from Alexis de Toqueville: “There is hardly ever a political question in the United States which does not sooner or later turn into a judicial one.” Everson, 222 F.Supp.2d at 865 (quoting Democracy in America 248 (J.P. Moyer & Max Lerner eds., Harper & Row 1996) (1832)). This apothegm indeed illuminates the present dispute, though not in the manner suggested by the district court. The MDOC‘s appeal is before this court not because Director Martin “made a decision and tried to translate the decision into a courtroom judgment,” id. at 899, but rather because, among other errors, the district court failed to accord proper deference to the decision of a state political actor, the MDOC, when individuals challenged that decision by filing suit in federal court rather than through the political process. For this reason, and for the other reasons discussed above, we REVERSE the judgment of the district court and REMAND with instructions to dismiss the complaint.
RONALD LEE GILMAN, Circuit Judge, dissenting.
I disagree with the majority‘s conclusion that being a female is a bona fide occupational qualification (BFOQ) for approxi-
The district court made several key findings of fact that I believe have not been adequately considered by the majority. First, the district court concluded that standard practice in the corrections field is to allow the employment of males in female prisons, even though the male employees may be limited in the scope of the tasks that they are permitted to perform. Second, the court found that internal studies by the MDOC did not support the wholesale elimination of male COs and RUOs from the housing units in the female prisons. The studies recommended that various tasks be assigned on a gender-specific basis and that the number of female COs be increased in the female housing units, but they did not recommend a female BFOQ for these positions. Third, the court concluded that the professional concern over cross-gender supervision in Michigan prisons was essentially limited to that of Bill Martin, the then-current director of the MDOC who requested the BFOQ certification. Martin was not someone with extensive experience in prison policy and administration, nor did he consider the recommendations of the department‘s internal studies or consult with other senior managers of the MDOC.
Despite these factual findings by the district court, the majority has accepted the conclusion that gender is a BFOQ in this case, a determination reached by Martin and “rubber-stamped” by the MDOC without consultation or study. Unlike the situation in Robino v. Iranon, upon which the majority relies, the MDOC did not “conduct[] an extensive survey of post duties before determining which posts should be designated female-only.” 145 F.3d 1109, 1111 (9th Cir.1998). The MDOC‘S BFOQ determination, because it was not the “product of a reasoned decision-making process, based on available information and experience[,]” Torres, 859 F.2d at 1532, should be afforded less deference than we would otherwise give the professional judgment of prison officials.
I also believe that the majority‘s reliance on the Torres decision is unjustified. At issue in Torres was whether the district court erred in rejecting the prison officials’ contention that a female BFOQ for correctional officer positions was necessary to further the goals of inmate rehabilitation, security, and privacy. 859 F.2d at 1526. The Seventh Circuit held that, with respect to the goal of inmate rehabilitation, the district court had erred in requiring the defendants to produce objective, empirical evidence of the need for a BFOQ, and remanded the case so that the district court could consider the totality of the circumstances. Id. at 1532. But with respect to the goals of security and privacy, the court affirmed the district court‘s determination that the various methods the prison had adopted to address the privacy concerns of female inmates, such as the use of “privacy cards” and limiting male guards’ observation of unclothed female inmates, had not undermined prison secu-
Here, however, the majority concludes that the female BFOQ is necessary to advance the goals of prison security and prisoner safety, even though the district court determined that changes implemented as a part of the settlement agreements referred to in the majority opinion—including the “knock and announce” policy, restricting pat-down searches of inmates by male staff, and limiting male officers’ views of areas where inmates dress, shower, and use the toilet—made a female BFOQ unnecessary. Thus, although Torres stands for the proposition that the reasoned judgment of prison officials should be given special consideration, it also supports the district court‘s conclusion that a female BFOQ is not necessary or appropriate for the purposes of prison security and privacy rights.
Finally, I believe that the district court was correct when it called for the use of “a scalpel rather than a meat ax approach to staffing tasks in the female prisons.” Everson v. Mich. Dep‘t of Corr., 222 F.Supp.2d 864, 896 (E.D.Mich.2002). A reasonable alternative to the complete exclusion of males from the CO and RUO positions is the assignment of sensitive tasks to female correctional officers. In concluding its opinion, the district court held that
there is no justification for a blanket ban on employment of male corrections officers in the female prisons of Michigan. The MDOC has the right to limit certain tasks in the female prisons to female corrections officers, particularly to ensure female inmates’ rights to privacy[,] bearing in mind at all times the security interest of the corrections officers. . . . There are tasks in the running of a female prison as has been explained above which should not be performed by male correction officers such as strip searches and body cavity searches. It should not be difficult to define these tasks and adjust CO and RUO duties in the housing units in the female prisons accordingly. Nothing in the decision here to deny the BFOQ‘s requirement should be read to prohibit the MDOC officials from making gender specific task assignments. The vast majority of female prisons in the United States appear to manage their populations safely and efficiently and still comply with the requirements of equal employment opportunity laws. Nothing in the record here suggests the MDOC can not do the same thing.
Id. at 898-99. I fully agree with this assessment.
Other courts that have addressed this precise issue have reached the same conclusion. See, e.g., Forts v. Ward, 621 F.2d 1210, 1216-17 (2d Cir.1980) (affirming the portion of the district court‘s decision that balanced the conflict between male guards’ employment rights and female inmates’ privacy rights by “carefully tailored adjustments to either facilities or work assignments[,]” and vacating that portion of the decision that categorically prohibited the assignment of male guards to nighttime shifts); Gunther v. Iowa State Men‘s Reformatory, 612 F.2d 1079, 1086 (8th Cir. 1980) (holding that in order for a male prison to show that the hiring of women for guard positions was unworkable, the prison “must also demonstrate that it could not reasonably rearrange job responsibilities in a way to minimize the clash between privacy interests of inmates and
Given that gender-sensitive task assignment is a preferred alternative to the wholesale exclusion of males from the positions in question, I believe that the majority has erred in holding that being a female is a BFOQ for those positions. The fact that the overwhelming weight of judicial authority agrees should make us all the more cautious in finding that a BFOQ exists in this case. Accordingly, I would AFFIRM the decision of the district court.
Kumal BURTON, Petitioner-Appellant, v. Paul RENICO, Warden, Respondent-Appellee.
No. 02-2489.
United States Court of Appeals, Sixth Circuit.
Argued: Aug. 11, 2004.
Decided and Filed: Dec. 6, 2004.
Notes
An employer shall not do any of the following: . . . Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . sex . . .
A person subject to this article may apply to the commission for an exemption on the basis that . . . sex is a bona fide occupational qualification reasonably necessary to the normal operation of the business or enterprise.... An employer may have a bona fide occupational qualification on the basis of . . . sex . . . 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.
Federal civil rights cases are persuasive rather than controlling authority in determining the proper interpretation of the Elliott-Larsen Act. Bryant v. Automatic Data Processing, Inc., 151 Mich.App. 424, 390 N.W.2d 732, 734 (1986). However, the parties have not identified any relevant substantive differences between Title VII and the Elliott-Larsen Act, and the parties and the district court have relied almost entirely on federal precedent. Accordingly, we decide the plaintiffs’ claim under the Elliott-Larsen Act on the same basis that we decide the plaintiffs’ Title VII claim.
The plaintiffs’ argument fails for a number of reasons. Most fundamentally, the “impossible or highly impractical” standard is not solely an ADEA standard. This language appears to have originated in a Title VII case, Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228, 235 n. 5 (5th Cir.1969), and subsequently to have been applied in ADEA cases. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 414 n. 19, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985). At least two circuits have utilized this language in Title VII cases. Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 676 (9th Cir.1981); Weeks, 408 F.2d at 235 n. 5.
Moreover, even if the standard had not yet been applied in Title VII cases, precedent suggests that it should be. “The provisions of the ADEA generally receive an identical interpretation to corresponding provisions of Title VII,” Lilley v. BTM Corp., 958 F.2d 746, 750 n. 2 (6th Cir.1992), and Title VII and the ADEA define the BFOQ defense in materially indistinguishable terms. Compare
The plaintiffs’ arguments against applying the “ADEA” standard in Title VII cases—the plaintiffs do not acknowledge the lineage of the “impossible or highly impractical” standard—are not persuasive. The Court has read the ADEA‘s BFOQ defense, “which tracks the BFOQ provision in Title VII, just as narrowly.” Johnson Controls, 499 U.S. at 201, 111 S.Ct. 1196. The Johnson Controls decision concerned whether the employer‘s asserted BFOQ related to the “essence” of the employer‘s business, and did not purport to hold that an employer can establish “reasonable necessity” only by showing that “all or substantially all woman would be unable to perform safely and efficiently the duties of job involved.” Johnson Controls, 499 U.S. at 206-07, 111 S.Ct. 1196 (internal quotations omitted). The plaintiffs fail to identify the “considerations unique to the aging process” that require a departure from the usual practice of interpreting Title VII and the ADEA in identical fashion.
In short, the BFOQ defense has not been reduced to a single, universally-applicable test. The “all or substantially all” and “impossible or highly impractical” standards are, to use the language of Dothard, 433 U.S. at 333, 97 S.Ct. 2720, “formulations” of the “reasonable necessity” requirement, not hard-and-fast rules of law. These tools may or may not assist a court in evaluating the facts of the particular case before it. In the instant case, both standards have helped guide our analysis, but our decision does not turn on the use of either standard.
courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.... [T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have additional reason to accord deference to the appropriate prison authorities.
Turner, 482 U.S. at 84-85, 107 S.Ct. 2254 (internal citations omitted).