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 *588Controls, Inc., 499 U.S. 187, 201, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). See also Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (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 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, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). Cf. United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (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 long-term 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 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.