STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


ARTHUR C VYSE JR, Complainant

DANE COUNTY HUMAN RELATIONS DEPARTMENT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199600615, EEOC Case No. 26G961356


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT

1. Dane County is a governmental entity located in the City of Madison, in Dane County, Wisconsin.

2. In November or December of 1995, Dane County posted an announcement to obtain applicants for a Janitor I position to fill vacancies county-wide.

3. Dane County operates the Dane County Exposition Center (Expo Center) which is located in Madison, Wisconsin. The Expo Center consists of a number of large buildings including the Coliseum, the Forum/Meeting Conference Center, the Exhibition Hall, the Arena, a shower house, and approximately ten livestock barns. Except for the barns, all of the buildings contain both men's and women's restrooms. The Expo Center leases its facilities to show organizers for sporting events, business events, consumer shows, circuses, rodeos, concerns, and banquets and makes services available to the customers who attend the events. Not all of the Expo Center's buildings are open at the same time. Patti Delaney-Ruhland (Delaney- Ruhland) is the assistant manager of customer services at the Expo Center.

4. Large events are often held in the Coliseum building in the Expo Center. Perhaps 100 large events are held in the Coliseum each year according to the estimate of Usher Captain Carolyn Anderson. Exhibit 1 indicates 500,000 people attended 255 events at the Coliseum in 1996. Events like rock concerts, country and western concerts, tractor and truck shows, and college and professional hockey games draw large crowds at which alcohol may be available for purchase.

5. The Coliseum has ten restrooms for women, with perhaps 40-50 stalls in each. The restrooms are in constant use during events. At intermission in larger events, lines for the women's restrooms in the Coliseum can reach 100 to 150 people in each restroom.

6. Emergency cleanup problems in the women's restrooms arose often at the Coliseum, and in the other buildings, during large events. Emergencies regularly occurred in the women's restroom in the Coliseum; at least one emergency occurs at every large event.

7. In her position at the Expo Center, Delaney-Ruhland receives complaints from customers and show organizers. The most common complaint that Delaney-Ruhland receives concerns the cleanliness of the restrooms in the Expo Center buildings, and particularly the cleanliness of the women's restrooms. In addition Delaney-Ruhland receives complaints from female event attendees about running out supplies of soap, toilet tissue, and paper toweling. The complaints are raised not only at more "rowdy" events such as music concerts and truck shows, but also at the more sedate shows like horse fairs and the World Dairy Exposition.

8. An increase in customer complaints and business complaints along with the opening of the Exhibition Hall in 1995, prompted Delaney-Ruhland to request a third full-time janitor position for the Expo Center in the 1996 budget. In February of 1996, Delaney-Ruhland submitted a request to Dane County to fill the third janitor position.

9. When Delaney-Ruhland submitted her request, both of the Expo Center's full-time janitor positions were held by men. Delaney-Ruhland decided that she would like to hire a woman for the new position who could clean the women's restrooms during an emergency situation without having to close the restrooms. However, the request that Delaney-Ruhland submitted to Dane County to fill the position did not specify that the job required a woman. Delaney-Ruhland did tell her manager, Ray Ritari, and Dane County Human Relations officials Harriet Rowland and Ed Rico (Rico), that she hoped to find a qualified woman for the position.

10. Prior to filling the third janitor position at the Expo Center, Dane County attempted to protect the privacy of female restroom patrons at the Expo Center in one of two ways:

a) Dane County would make use of female limited term employes (LTEs) to clean the women's restrooms during emergencies in order to protect the privacy of restroom patrons. Delaney-Ruhland, however, found this to be an unsatisfactory option because of the limited number of female janitor LTEs, the limited availability of LTE female janitors at night, the high turnover rate for LTEs, the high cost of training LTEs, and the limited number of hours they can work in a year.

b) On other occasions when there were no female janitor LTEs working at the Expo Center, the Expo Center would ask two of the female ushers on duty to assist in closing the restroom during an emergency situation so that a male janitor could go in and clean up or replace toilet tissue. Dane County would use one usher to guard the entrance to the restroom and inform patrons that the restroom was closed, one usher to guard the exit so that patrons would not sneak into the restroom through that door, and one usher to inform patrons inside the restroom that they should leave. Delaney-Ruhland was also dissatisfied with this option because the ushers, who had their own duties, had to be pulled away from their jobs. In addition, angry patrons would often ignore the ushers guarding the doors and push right through them in order to enter the restroom. On occasion, female patrons have responded to the restroom closures by using the men's restrooms, prompting male patrons to complain. At times, it would take up to half an hour for the ushers to close a restroom. Closure would also limit the number of facilities available to individuals with disabilities.

11. Vyse is a male. In January of 1996, Vyse was employed by the Dane County Airport in a maintenance position. At that time, Vyse had been a Dane County employe for 12 years and had worked at the airport for 3-1/2 years. His duties at the airport included lawn mowing and clearing snow off runways. Dane County terminated Vyse's employment in January of 1996 because he refused to take a drug test. Vyse filed a union grievance regarding his termination, alleging that he had not been given adequate notice of the drug test.

12. On or about March 16, 1996, Vyse attended a meeting between the union and Dane County officials regarding his grievance. As a result of the meeting, Vyse was given an opportunity to interview for the new Janitor I position at the Expo Center. Dane County informed Delaney-Ruhland that she had to interview Vyse for the position.

13. Delaney-Ruhland interviewed Vyse for the new janitor position in March of 1996. During the interview, Delaney-Ruhland told Vyse about the position and inquired about his skills. She did not inform Vyse that she wanted to hire a woman for the position. Except for the fact that Vyse's sex is male, Delaney-Ruhland considered Vyse to be qualified for the janitor position.

14. On April 1, 1996, Rico wrote a letter to Vyse acknowledging that the offer of a janitor position at the Expo Center was an option considered by Dane County as a proposed settlement of Vyse's union grievance. However, regarding that option, Rico stated:

The Exposition center has indicated that the Janitor position needs to be filled by a woman, if at all possible, in order to provide cleaning services in the women's restrooms during events. We did not realize that was a need at the time the Janitor position was originally discussed with you.

15. In April of 1996, Delaney-Ruhland received a list of 7 or 8 applicants for the new janitor position. The list contained the names of 2 women, and 5 or 6 men. Delaney-Ruhland hired one of the female applicants, Donna Lautzenhizer (Lautzenhizer), for the Janitor I position in June of 1996. If neither of the female applicants had been qualified for the position but at least one of the male applicants was qualified, Delaney-Ruhland would have hired a man for the new janitor position.

16. Lautzenhizer works varied shifts as a janitor at the Expo Center. The Expo Center generally schedules Lautzenhizer to work more frequently during the day when large events are occurring in order to attend to emergency situations in the women's restrooms. The Expo Center often schedules the other two janitors to work at night when customers are not present and the men can do routine cleaning of both male and female restrooms. The Expo Center continues to make use of both male and female LTEs to supplement its janitorial staff. On occasion, when Lautzenhizer is not working and there are no female LTEs working, the Expo Center still has to close a female restroom during emergency situations.

17. As of the date of the hearing in this matter, Vyse had been unemployed since Dane County terminated his employment at the Dane County Airport in January of 1996.

CONCLUSIONS OF LAW

1. Dane County is an employer within the meaning of the Wisconsin Fair Employment Act.

2. Vyse, a male, is an individual protected under the Wisconsin Fair Employment Act.

3. Dane County discriminated against the complainant on the basis of his sex when it refused to hire or employ him for the vacant Janitor I position at the Expo Center; however, sex was a bona fide occupational qualification for that vacant position because the essence of Dane County's business operation would be undermined if a female were not hired for that position.

4. Dane County did not violate the Wisconsin Fair Employment Act when it refused to hire or employ the complainant in the vacant Janitor I position at the Expo Center.

ORDER

The complaint is dismissed.

Dated and mailed: July 16, 1998
vyseart.rrr : 101 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: Although the commission's decision reverses the decision of the administrative law judge, it does not do so based on any differing resolutions regarding the credibility of any of the witnesses. Instead, as explained in the Memorandum Opinion, the commission reverses because it differs with the ALJ as to her legal conclusions regarding whether Dane County met its burden of justifying gender discrimination based on a BFOQ, as to whether Dane County has shown there was no feasible alternative, such as selective assignments or use of LTEs, for preventing the clash between customers' privacy rights and the complainant's right to equal employment opportunity, and as to whether the Norwood case was distinguishable.

Accordingly, the commission was not required to consult with the ALJ regarding her observations as to the demeanor and manner of testifying of the witnesses, and it has not done so. Carley Ford, Lincoln, Mercury, Inc., v. Bosquette, and others, 72 Wis. 2d 569, 576, 241 N.W.2d 596 (1976).

 

MEMORANDUM OPINION

1. Applicable legal standards.

Under Wis. Stat. 111.36(1)(a), it is illegal to

"discriminat[e] against any individual ... in terms, conditions or privileges of employment on the basis of sex where sex is not a bona fide occupational qualification."

Wisconsin Statute 111.36(2) provides that

"sex is a bona fide occupational qualification if all of the members of one sex are physically incapable of performing the essential duties required by a job, or if the essence of the employer's business would be undermined if employes were not hired exclusively from one sex."

The courts have noted that there are two types of cases in which the bona fide occupational qualification (BFOQ) defense arises. Fesel v. Masonic Home, 17 FEP CASES 331, 334 (DC Del., 1978). In one situation, an employer refuses to hire members of one class because of its perception of the physical capacity of members of that class to perform the job. In the second situation, the employer refuses to hire any members of one sex due to its perception of the privacy interests of its customers. This case poses the second situation. (1)

The ALJ set out the correct test for determining whether an employer has shown a valid BFOQ based on privacy concerns. In Moore v. Cedar-Grove Belgium School District, ERD case no. 8750027 (LIRC, 4/29/92), the commission first noted that in order to show a BFOQ, an employer must show a factual basis for its belief that hiring employes of one sex would undermine the essence of its business operations. Second, the commission stated that where, as here, the BFOQ defense is based on the privacy interests of its customers, it must show it would not be feasible to assign job responsibilities in a selective manner to avoid a collision between those privacy interests and a worker's equal employment rights. Third, the commission held that where an employer seeks to use the BFOQ defense because of a perceived potential infringement of its clients' or customers' privacy, the employer must demonstrate that it could not rearrange job responsibilities to eliminate or minimize the conflict between the perceived privacy interests and the equal employment rights. In Moore, the commission essentially adopted the tests set out in Fesel, supra; Torres v. Wis. DH&SS, 40 FEP CASES 1748 (E.D., Wis. 1988); Gunther v. Iowa State Mens Reformatory, 21 FEP Cases 1031 (8th Cir., 1980); and Hardin v. Stynchcomb, 30 FEP Cases (11th Cir., 1982). The burden borne by the employer to justify a BFOQ on the basis of privacy concerns of customers or clients has been described as "very heavy." Fesel, supra, at 17 FEP Cases 333; Torres, supra, at 40 FEP CasesS 1753.

In sum, then, when an employer discriminates on the basis of sex or gender, but raises a BFOQ based on the privacy concerns of the employer's customers or clients, the employer bears the "very heavy" burden of showing: (1) A factual basis for its assertion that hiring a member of one sex would undermine the essence of the employer's business operation, and (2) that due to the nature of the business, it would not be feasible to assign job responsibilities in a selective manner (or take other alternative action) so as to avoid a collision with the privacy rights of the clients and customers.

2. Discussion.

The ALJ concluded that Dane County did not show a BFOQ in this case, and found for Vyse. However, the commission respectfully disagrees, and concludes that Dane County has met the heavy burden of justifying gender discrimination based on a BFOQ.

The first inquiry is whether Dane County had a factual basis for believing that hiring a member of one sex would undermine the essence of its business operation. Stated another way, is it essential to the operation of the Expo Center to have a woman in a permanent Janitor I slot available to clean the women's restrooms in at least some of the big events? Dane County has established it is.

One of the most frequent complaints, if not the most frequent complaint, that assistant manager of customer services Delaney-Ruhland must deal with is the cleanliness of the women's restrooms in the Coliseum. The complaints come not only from members of the public, but also from show organizers who decide whether to put on their show at the Expo Center or elsewhere. Emergency problems in the women's restrooms inevitably arise at the 100 or so large events held in the Coliseum each year, and complaints are made during smaller events as well. The problem is particularly acute at music concerts, college and professional hockey games, and truck shows, but it also arises at more sedate shows such as horse fairs.

True, Delaney-Ruhland could cite no actual instance of an occasion when a show organizer canceled a show because of uncleanliness or a restroom closure. But she has consistently received complaints from show organizers and members of the public. One may reasonably infer that the complaints indicate dissatisfaction, and that the "satisfaction level" of show organizers and attendees presumably plays a direct role in venue choice by show organizers. Beyond that, the condition of the restrooms is a central and obvious concern to a business which provides facilities for large numbers of people during events lasting several hours, including events at which beer and other beverages are sold.

On this point, the complainant wonders why, if having a female janitor is so essential, the position was not posted for women only? True, Dane County posted a general announcement for its Janitor I vacancies in November or December 1995. However, while a third janitor position had previously been authorized in the Expo Center's budget, Dane County's November/December 1995 recruitment was not for that position specifically. Rather, the recruitment conducted by Dane County personnel office was general, so that a list of names from that recruitment would have been provided to any County department that needed a janitor. For this reason, the November/December 1995 recruitment was not limited to women.

Delaney-Ruhland could have asked for only female names from the general recruitment list, or simply refused to interview any men. While the record indicates that she did express a preference for women to the Dane County personnel office, it is also clear she did not push the matter to the point of refusing to interview men. Instead, she hoped a qualified woman was included in the list she was provided. While this may seem to undercut the claim that it was essential to have a woman, the commission declines to decide the BFOQ issue against Dane County on this basis. The fact is that the need for a female janitor was great enough so that Delaney-Ruhland used gender as her primary hiring criteria, and so informed Dane County personnel officers who eventually told the complainant.

The second inquiry is whether Dane County has shown there was no feasible alternative, such as assigning jobs in a selective manner, to prevent the clash between the customers' privacy rights and the complainant's right to equal employment opportunity. Dane County made this showing as well.

First, because there were no female permanent janitors at the Expo Center until Dane County filled the position at issue, selective job assignment in the traditional sense could not work. However, the reported cases indicate that alternative works best in situations where an employer claims it must hire all workers in a particular job class from one gender, and a member of the opposite gender challenges that practice. In that type of situation, courts have held that duties should be selectively assigned so that members of one gender are assigned to duties affecting the privacy rights of customers or clients while members of the other gender are assigned less sensitive duties. Selective job assignment in that sense does not work in this case; rather, Dane County placed a woman in one of the three Janitor I positions to try selective job assignment. (2)

The ALJ concluded, however, that Dane County has not shown that there were no other feasible alternatives to hiring a female full time janitor. The ALJ noted the past practice of using female LTEs for example, or closing the restrooms so they could be cleaned by a male. Of these, use of female LTEs to clean the restrooms seems like the best solution. However, the record indicates that Dane County has a difficult time hiring, let alone retaining, female LTE janitors. For this reason, the bathrooms frequently had to be closed for cleaning by male janitors. Indeed, the argument that female LTEs be used to clean the women's restroom in some ways supports Dane County's case by recognizing the importance of having a female Janitor I available to clean the women's restroom in emergency situations.

Closing the restrooms is not feasible either. It is true that this was Dane County's past practice, and that the courts will look to past practice to determine whether accommodation is feasible. Torres, supra, at 40 FEP CASES at 1756. However, the commission cannot conclude that an employer should be forever bound by prior practice. In this case, the record establishes the Expo Center is growing in terms of overall attendance. The number of complaints about the cleanliness of the restrooms, one must assume, is growing too. The record amply establishes that restroom demand grossly exceeds supply during large events, and closing restrooms during events to clean them only exacerbates the problem. Further, given the testimony about crowd control problems when the restrooms are closed, and the potential liability of alternatively ignoring situations where broken glass, blood, and vomit are present in the restrooms, hiring a female janitor who can clean the restrooms while they are open is the only feasible alternative.

The federal district court for the Northern District of Illinois reached essentially the same conclusion in Norwood v. Dale Maintenance System, 35 FEP CASES 1835 (N.D. Ill., 1984). In that case, the employer provided janitorial services to a skyscraper in Chicago. The skyscraper, a commercial building with 8,000 to 12,000 occupants during the day, had one restroom for each sex on each floor. The practice had been to have two teams of a male and female worker go floor to floor cleaning restrooms in tandem during the day shift. During the night shift, when presumably there were fewer tenants, the employes who clean the bathrooms were not assigned on the basis of sex. When one of the day shift bathroom attendant positions became available, a job announcement was posted. It did not specify a specific gender, but stated the position would be filled based on seniority. A number of employes, men and women, applied. However, because the position was to clean men's rooms, the most senior male was hired, not Ms. Norwood who was the most senior job applicant overall.

The Norwood court carefully went over the layout of the bathrooms in the building, noting that some were locked and others in private areas. Thus, if a restroom was closed for cleaning, it would inconvenience a tenant who wanted to use the restroom, as he might have to try several levels before he could find one that was not occupied. The court also considered expert testimony to the effect that individuals do not like members of the other gender cleaning restrooms when they are trying to use them, and vice versa. As a result, the court rejected two suggested alternatives: closing the restrooms for cleaning or having the female attendant leave when a male tenant wished to use the restroom. Finding no feasible alternative to gender-based discrimination would protect the privacy rights of the skyscraper tenants, the court found a BFOQ, applying the Fesel tests set out above.

In this case, the ALJ distinguished Norwood, noting that the record in Norwood included detailed testimony about building layout. Specifically, the testimony allowed the court to distinguish the building in Norwood from "most others" based on the rental character of the building, the placement of the bathrooms, and standard of cleanliness. In the current case, by contrast, Dane County did not establish how many bathrooms were in each building in the Expo Center complex, how far apart they were, and how many stalls were in them.

The commission does not believe that level of detail is necessary in this case. The Coliseum has ten public restrooms, the restrooms frequently have lines of 100 to 150 women in large events, and customers have frequently complained. Whatever the other characteristics of the restroom facilities, they are inadequate to meet demand. Thus, closing them for cleaning during periods of high demand (when closing is most likely to be necessary) is not feasible. Moreover, the volume of complaints establishes that the "standard of cleanliness" expected in public restrooms was not being met.

Nor is expert testimony necessary to conclude that members of one sex generally dislike having unfamiliar members of the other sex present while they are attempting to use a restroom. To the extent evidence is required on this point, Delaney-Ruhland and Anderson testified that they personally would not like a male present in the restroom while they were using it.

The complainant argues in his brief that, when he worked in the airport, he was able to close the restrooms for five minutes to clean them with minimal problem. However, the unrebutted testimony of Delaney-Ruhland and Ms. Anderson indicates that the situation at the Coliseum simply is not the same as the situation at the airport.

Nor do the facts support an argument that restroom cleaning is not an essential part of the Janitor I position for which the complainant applied. The facts show exactly the opposite: Ms. Lautzenhizer is usually assigned work specifically so that she is available for emergency cleaning and re-supplying of the women's restrooms during large events.

Finally, the complainant's brief refers to Hernandez v. University of St. Thomas, 793 F. Supp. 214 (D. Minn., 1992). That case involves cleaning of college dormitory restrooms. When it first used coed dorms, the university followed a policy of having male janitors clean the men's showers and restrooms and female janitors clean the women's showers and restrooms. The University later adopted a gender-neutral policy. The University then returned to the former policy, causing Mr. Hernandez to be removed from cleaning the women's facilities and placed in a less desirable janitorial job. Mr. Hernandez moved for summary judgment on his discrimination complaint.

The Hernandez court did note, as the complainant in this case states, that the fact that the University was able to allow a gender-neutral policy for several years before switching back to its initial policy of gender discrimination undercut the claim that there were no feasible alternatives to the renewed practice of hiring janitors on the basis of gender. But the court denied Mr. Hernandez's summary judgment motion, noting a factual issue on the question (perhaps arising from financial concerns) could exist.

Thus, the Hernandez decision does not give a final result on a specific set of facts. It does not indicate how the court would have decided the case if the facts established that the showers and restrooms in the women's part of the university dormitories were in chronic short supply, that the gender-neutral hiring policy resulted in the women's facilities being more frequently closed during periods of peak use for cleaning than the men's restrooms, and that the result was long lines with dissatisfied and sometimes disruptive female students.

cc: Donald B. Bruns
Rodney F. Knight


Appealed to Circuit Court. Affirmed March 3, 1999.

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Footnotes:

(1)( Back ) Dane County's actions affect only one of three Janitor I positions at the Expo Center. An argument could be made that Dane County's actions therefore impose only de minimus restrictions on male employment opportunities and make it unnecessary to decide whether gender is a BFOQ for the single position affected. Robino v. Iranon, 76 FEP CASES 1793, 1794 (9th Cir. 1998).

(2)( Back ) See, Robino, supra.