Full opinion text
MEMORANDUM OPINION MYRON H. THOMPSON, Chief Judge. In these two longstanding class-action lawsuits, two groups of officers in the Montgomery County Sheriff’s Department charge that the department has again illegally discriminated against them because of their sex and race. In Johnson v. Montgomery County Sheriffs Department, Civil Action No. 82-717-N, Lois Johnson charges on behalf of herself and a class of female officers (the “Johnson class”) that the department has continued to discriminate against them because of their sex. In Sims v. Montgomery County Commission, Civil Action No. 3708-N, W.T. Scott and three other named plaintiffs charge on behalf of themselves and a class of African-American officers (the “Scott class”) that the department has continued to discriminate against them because of their race. The Johnson and Scott classes rest their claims on a number of legal bases: the prior orders of the court; Title VII of the Civil Rights Act of 1964, as amended and codified at 42 U.S.C.A. §§ 2000e through 2000e-17; and the fourteenth amendment to the United States Constitution as enforced through 42 U.S. C.A. § 1983. The Johnson and Scott classes have satisfied Title VII’s requirement that they exhaust their administrative remedies before the Equal Employment Opportunity Commission (the “EEOC”). Based on the evidence presented at a nonjury trial spanning over a three-month period, the court concludes that most of the claims of race and sex discrimination have merit and that, accordingly, appropriate individual and class-wide relief is due. I. THE JOHNSON LITIGATION The Johnson class presents a number of different sex discrimination claims against the Montgomery County Sheriffs Department. The claims can be grouped as follows: first, class claims that departmental officials assign officers to jobs and shifts based on the officers’ sex; second, class claims that male officers in the department have sexually harassed female officers; and, third, individual claims that departmental officials have retaliated against two female officers, Sallie Williams and Johnie Love, because of their participation in this litigation. However, before discussing these claims, the court will give some background information. A. Background The Montgomery County Sheriff’s Department is divided in two divisions: corrections and law enforcement. The corrections division is responsible for the operation of the Montgomery County Detention Center, also known as the county jail; the law enforcement division is also known as the field division. The personnel structure of the department and its two divisions is as follows: At the time of trial, the sheriff was Mac Sim Butler, a white male; the chief deputy was Calvin Huggins, a white male; the jail administrator was Willie McKitt, a black male; and the assistant chief deputy was W.J. Walker, a white male. The county jail has four floors. The first floor is where prisoners are booked; the second floor houses both male and female inmates; and the third and fourth floors house only male inmates. Each floor has at least two “control booths” from which officers can watch inmates; there is also a central control booth. The jail has three job shifts: first shift, from 7:30 a.m. to 4:00 p.m.; second shift, from 3:30 p.m. to 12:00 midnight; and third shift, from 11:30 p.m. to 8:00 a.m. In October 1982, Lois Johnson, then an officer in the corrections division of the Montgomery County Sheriffs Department, filed suit under Title VII charging the department and its officials with discrimination against women in hiring, promotions, transfers, and job and shift assignments. Pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, the court certified a plaintiff class of all past, present, and future female employees and applicants for employment in the Montgomery County Sheriffs Department. See Johnson v. Montgomery County Sheriffs Department, 99 F.R.D. 562 (M.D.Ala.1983) (“Johnson I ”). In January 1985, the court approved a consent decree resolving all claims brought by the Johnson class. The decree provided for, among other things, new policies with regard to promotions, transfers, and job and shift assignments. See Johnson v. Montgomery County Sheriffs Department, 604 F.Supp. 1346 (M.D. Ala, 1985) (“Johnson II”). The present phase of this litigation began on October 14, 1988, when the Johnson class filed a motion to compel, charging that the Sheriffs Department and its officials had violated the 1985 consent decree and Title VII. The focus of this phase of the litigation is primarily on the corrections division side of the Sheriffs Department. B. Claims of Sexually Disparate Treatment, Retaliation, and Harassment As the court has stated earlier, the Johnson class charges, first, that departmental officials assign officers to jobs and shifts based on the officers’ sex; second, that male officers in the department have sexually harassed female officers; and, third, that departmental officials have retaliated against two female officers because of their participation in this litigation. 1. Claims of Sex Discrimination in Job and Shift Assignments The Johnson class claims that the Sheriff’s Department and its officers have violated both the 1985 consent decree and Title VII in the assignment of jobs and shifts to officers. The consent decree requires that job and shift assignments are to be made without regard to an officer’s sex. Johnson II, 604 F.Supp. at 1353. The decree provides, however, for three exceptions to this general prohibition. The first two exceptions, which are envisioned by the decree as applying in only “narrow and unusual circumstances,” are for “Strip searches” and “Situations which warrant that the privacy interests of the inmate must be protected.” Id. The third exception is that “A minimum of one female deputy will be on duty in the jail for each of the three shifts.” Id. Title VII prohibits sex discrimination in employment, 42 U.S.C.A. § 2000e-2(a), unless the employer can show that sex is a bona fide occupational qualification, § 2000e-2(e). This exception is satisfied “only if the essence of the business would be undermined” by allowing both men and women to compete on a non-discriminatory basis. Hardin v. Stynchcomb, 691 F.2d 1364, 1370 (11th Cir.1982). In addition, where the claimed exception is based on the privacy interests of inmates, the employer must show that, because of the nature of the operation of the business, the job responsibilities cannot be rearranged in a way that would eliminate the clash between the privacy interests of inmates and the equal employment opportunities of all officers without regard to sex. Id. at 1371. The Johnson class claims that the Sheriffs Department violated the consent decree and Title VII in job and shift assignments in the following four ways. First, departmental officials instituted a policy which permits only female correctional officers to be assigned jobs in the section of the county jail where female inmates are housed. Second, the department required that the number of females on each of the three duty shifts in the jail must be “balanced.” Third, the department required that a female officer must be accompanied by another officer when in the vicinity of inmates. Finally, the department has discriminated against female officers in the appointment of recreational officers in the jail. i. In mid-April of 1988, the Sheriffs Department instituted a policy which permits only female correctional officers to be assigned to the county jail's “Two-North” wing where female inmates are housed. The department adopted the policy in response to allegations by several female inmates that one or two male officers assigned to the area had encouraged certain female inmates to undress and model nude. The department continued, however, to assign both male and female officers to the sections of the jail housing male inmates. The evidence adduced at trial established that the Two-North policy severely restricted employment opportunities for female officers. Because of the limited number of female officers, the department required that they work the Two-North shifts considerably more frequently than they would have otherwise. The female officers, as a result, had significantly fewer opportunities to gain valuable job experience in the other aspects of jail management, such as in the areas where inmates are “booked” and processed. Female officers, especially those with substantial seniority, also had less opportunity to work the more desirable day shift and to have weekends off. In contrast, the male officers were accorded a greater opportunity to be exposed to all facets of jail management, and those with seniority could much more easily than women obtain the best working hours and days. The Two-North policy is completely unjustified under the consent decree and Title VII. To be sure, issues of inmate privacy are not to be taken lightly, and circumstances may arise in which narrowly drawn sex-based restrictions might be necessary to preserve inmate privacy, as the consent decree recognized with its exceptions for strips searches and situations where the privacy interests of inmates must be protected. See also, e.g., Hardin v. Stynchcomb, 691 F.2d at 1373 (an exception to Title VII’s broad prohibition against sex discrimination would be where deputies of the opposite sex would have to conduct strip or body cavity searches). However, the circumstances that gave rise to the Two-North policy could have been effectively resolved through non-discriminatory measures. The evidence reflects that female inmates have complete privacy when taking showers and using toilet facilities. Therefore, the only issue presented to the department was what to do when inmates deliberately expose themselves. The evidence reflects that any such misbehavior by inmates can be adequately addressed by disciplining inmates guilty of the conduct and by punishing those correctional officers who encourage such behavior. This policy of simply punishing the guilty is working in the sections of the jail which house male inmates, and there is no reason why it could not work for Two-North as well. Indeed, because the undisputed evidence is that male inmates, much more than female inmates, deliberately expose themselves, the department’s justification for the Two-North policy is frivolous. See Hardin v. Stynchcomb, 691 F.2d at 1372-74; Edwards v. Department of Corrections, 615 F.Supp. 804, 810 (M.D.Ala.1985). The court does not view the department’s justification for the Two-North policy as merely a frivolous defense, however. The policy and its purported justification affirmatively reflect an attitude within the department that the rights of women should not be taken seriously. The fact that departmental officials could so easily, at the first frivolous opportunity, have run roughshod over the rights of female officers reflects that departmental officials have yet to come to grips with the mandate of this court, as embodied in the 1985 consent decree, that female officers of the Montgomery County Sheriff’s Department are to enjoy a full and fair opportunity for equal employment. Indeed, when the Two-North policy is considered against the backdrop of all the evidence in this case, it is apparent to the court that there is an additional, more sinister motive behind the policy. The court is convinced that the department’s contention that the policy was adopted to protect inmate privacy was not its only motive, if a true motive at all, and that an additional, if not sole, motive behind the policy was a concern that the male officers could not control themselves with female inmates. As the evidence in this case has so dramatically shown — in particular, the evidence of sexual harassment of female officers by male officers which is discussed later in this memorandum opinion — the general belief in the department is, and continues to be, that male officers by nature denigrate and sexually harass female officers. The court believes that those in command believed that, because male officers, including themselves, could not act professionally toward their female co-workers, it would be unlikely that they could act professionally toward female inmates. The Two-North policy was enacted to remove male officers from the temptation of female inmates. That this reason is an additional, if not the only true, reason is evident from the fact that the requirement that the officers and inmates be of the same sex was applied to only the women’s section of the jail; it was not applied to the men’s sections. If the department had been truly concerned about inmate privacy it would have applied the requirement throughout the jail. The court believes this motive to be sinister and deplorable for two reasons. First, as stated, it reflects an attitude that the rights of women in the department are easily expendable. When the rights of women clash in any minor way with a perceived concern for the welfare of male officers, the women’s rights are readily cast off. But second, and in a sense more sadly, this motive when considered with all the other evidence in this ease reflects an attitude on the part of departmental officials that male officers cannot be trusted to be professional in their dealings with women, and, in particular, with female inmates. Women can be trusted to act professionally with male inmates, but men cannot be trusted to act professionally with female inmates. The Two-North policy is, therefore, demeaning for both men and women in the Montgomery County Sheriffs Department, and should be condemned as intolerably discriminatory as to both groups, ii. The Johnson class has also challenged the policy of the Sheriffs Department of requiring that the number of females on each of the three duty shifts be “balanced.” The department maintains that this policy is necessary, first, in order to prevent any shift from becoming all or predominantly female and, second, because male officers cannot conduct body searches of female inmates. The court agrees with the Johnson class that this policy violates both the 1985 consent decree and Title VII. The consent decree provides that “A minimum of one female deputy will be on duty in the jail for each of the three shifts.” Johnson II, 604 F.Supp. at 1353. This provision, when considered with the decree’s broad prohibition of job assignments based on sex, means that the Sheriff’s Department may discriminate to the limited extent that it may require that one female corrections officer be assigned to each shift. The decree does not authorize the wholesale balancing policy now being used by the department. The balancing policy also violates Title VII because the department’s two justifications for the sexually discriminatory policy cannot withstand the Act’s scrutiny. First, the fact that male officers cannot conduct body searches of female inmates does not require the policy. The special assignment, where necessary, of at least one female officer to a shift, which is authorized by the consent decree, would adequately meet this concern; an overall balancing policy based on sex is not necessary. Second, the department’s belief that no shift should be predominantly, or all, female does not justify the policy. The department contends that no shift should be overly female because female officers are by nature not as capable as male officers. According to the department, male officers are in general superior in handling inmates in three respects: patience, ability to communicate, and strength. The department admits that some women are stronger than some men, but contends that when all three factors — in particular, patience and ability to communicate — are considered together male officers are always superior to female officers. Indeed, according to the department, not one female officer in the jail division is as capable as any one of the male officers. These facially discriminatory reasons offered by the department in support of its balancing policy are obviously insufficient to meet Title VII’s exacting requirements for a bona fide occupational qualification. Indeed, the fact that the department would even offer these reasons demonstrates that the department’s discriminatory attitude is both broad and deep and that the court must carefully and cautiously consider any justification the department might offer in support of a policy which has a discriminatory impact on female employees. iii. The Johnson class claims that the Sheriff’s Department has in several other ways treated female officers differently from male officers in violation of Title VII and the 1985 consent decree. First, female corrections officers have been instructed that, when they are in the vicinity of inmates in the jail, they must be accompanied by at least one other officer. For example, a female officer is required to be accompanied by another officer when walking down the halls in those parts of the jail where inmates are housed; she is also required to have a second officer present when she has an inmate clean a control booth. The evidence reflects that the department adopted this policy because, in the words of the supervisor responsible for the policy, “Well, I feel males can take care of themselves better than females.” This facially discriminatory policy is not authorized by the consent decree, and thus violated the decree. The policy also violates Title VII because the only reason offered by the department in support of the policy is that male officers can handle inmates better than female officers and this justification is, as the court has already explained, itself repugnantly discriminatory. Second, the department has openly discriminated against female officers in the appointment of recreational officers for the first and second shifts in the jail. Recreational officers are responsible for taking inmates to the jail’s recreational area and supervising their recreation. The court finds that the department has intentionally restricted the number of women who may be assigned to these positions and that the reason behind this restriction is the belief that female officers are not as capable and competent as male officers. The court condemns the department’s actions and finds that they violate the consent decree and Title VII for the same reasons that the court has rejected the department’s other conduct which was based on the same discriminatory belief. 2. Sexual Harassment Claims The Johnson class also charges the Montgomery County Sheriff’s Department with sexual harassment. From the evidence presented, the court agrees that the charge has merit. i. The Supreme Court has explained that “when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1988). This is true because the supervisor singles out the subordinate because of her sex. Sexual harassment is, therefore, a form of sex discrimination, and as such, falls within Title VII’s prohibition of employer discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C.A. § 2000e-2(a)(l). For the same reason, sexual harassment also falls within the 1985 consent decree’s prohibition of employer discrimination “on the basis of sex against any named plaintiff or class member.” Courts have in general recognized two forms of sexual harassment: explicit sexual overtures that are directly linked to employment opportunities or conditions, known as “quid pro quo harassment”; and conduct that creates a hostile or offensive work environment, known as “hostile environment harassment.” See generally Henson v. City of Dundee, 682 F.2d 897, 908-913 (11th Cir.1982) (quid pro quo harassment); id. at 901-06 (hostile environment harassment). To establish the latter, a plaintiff need not demonstrate a “tangible loss” of “an economic character,” Meritor Savings Bank, 477 U.S. at 64, 106 S.Ct. at 2404, but rather need only show that the conduct is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’ ” Id. 477 U.S. at 67, 106 S.Ct. at 2405, quoting Henson, 682 F.2d at 904. Moreover, the severity and pervasiveness of the conduct does not turn merely on how many or how few incidents there are; a court must examine “not only the frequency of the incidents, but the gravity of the incidents as well.” Vance v. Southern Bell Telephone and Telegraph Co., 863 F.2d 1503, 1511 (11th Cir.1989). In addition, “the fact that sex-related conduct was ‘voluntary,’ in the sense that the complainant was not forced to participate against her will, is not a defense,” Meritor Savings Bank, 477 U.S. at 68, 106 S.Ct. at 2406; rather, the “gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome.’ ” Id. The focus of the court should be on whether the complainant “by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation ... was voluntary.” Id. Finally, quid pro quo harassment and hostile environment harassment are not mutually exclusive notions. The same conduct may partake of both forms of harassment. For example, sexual overtures directly linked to employment may be so pervasive or so offensive as to create a hostile environment. The Supreme Court has explicitly held, however, that an employer may not be held “automatically liable” for all sexual harassment inflicted, or suffered, by its employees. Meritor Savings Bank, 477 U.S. at 72, 106 S.Ct. at 2408. The Court explained that Title VII required that lower courts look to common-law agency principles, but with the understanding that these “principles may not be transferable in all their particulars to Title VII.” Id. Relying on Meritor Savings Bank, the Eleventh Circuit Court of Appeals has concluded that employers may be held directly liable for any illegal harassment that either it or its agents may have practiced on its employees. Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1557-58 & n. 4 (11th Cir.1987). The Sparks court observed that Title VII expressly provides that an “employer” is liable for its own sexual harassment of its employees, 42 U.S.C.A. § 2000e-2(a), and that the Act defines the term “employer” to include its “agent,” § 2000e(b). Id. The appellate court then explained that, because Title VII does not define the term “agent,” courts must turn to established common-law agency principles found in the Restatement (Second) of Agency §§ 219-237 (1958) (“Restatement”). Id. Relying on these principles, the Sparks court then indicated that a supervisor is acting as an agent for Title VII purposes when he acts “within the scope” of his authority. Id. at 1558 n. 5, quoting Restatement § 219(1). A supervisor acts within the scope of his employment when his conduct is of the kind he is employed to perform, occurs substantially within the authorized time and space limits, and is actuated, at least in part, by a purpose to serve his employer. Id. citing Restatement § 228(1). A supervisor’s conduct is not within the scope of his employment if it is “different in kind from that authorized, far beyond the authorized time and space limits, or too little actuated by a purpose to serve” his employer. Id. quoting Restatement § 228(2). The Sparks court further held that a supervisor is acting as an agent for Title VII purposes when “he [is] aided in accomplishing [the harassment] by the existence of the agency relationship.” Id. at 1559, quoting Restatement § 219(2)(d). Under this latter provision of the Restatement, § 219(2)(d), the employer “is not insulated from liability by the fact that [its supervisor] was acting entirely for his own benefit.” Id. at 1559. Rather, an employer should be held liable under such circumstances “because it was the employer’s delegation of authority that empowered the supervisor to act.” Id. A supervisor need not necessarily be high in the business structure, nor does he have to have the authority to hire, fire, or promote in order to be considered an agent whose conduct is binding on an employer under the above principles. A supervisor who has much less authority and is merely in the business’s intermediate structure can be an agent for Title VII purposes. Vance, 863 F.2d at 1515. In determining whether a person acts in either a supervisory or agency capacity, a court must examine “the circumstances of the particular employment relationship and the job functions performed by the individual.” Id. quoting 29 C.F.R. § 1606.8(c). “While the supervisor’s direct authority over the plaintiff must be considered as a relevant factor,” the appellate court explained, “courts should also examine any evidence bearing on the overall structure of the workplace, including the relative positions of the parties involved.” Id. at 1515. Whether a person is in a position to be considered an agent for Title VII purposes is a factual issue for the factfinder. Under the law of the Eleventh Circuit, an employer may also be held indirectly liable for sexual harassment. To establish indirect liability, the plaintiff must show under the theory of respondeat superior that the employer “knew or should have known of the harassment in question and failed to take prompt remedial action.” Sparks, 830 F.2d at 1557, quoting Henson, 682 F.2d at 905. Indirect liability reaches those circumstances where the person who has engaged in the unlawful conduct is not the plaintiff’s “employer” or “agent” as these terms are used in Title VII but rather is, for example, “one of plaintiff’s co-workers or [is] a supervisor with no authority over plaintiff.” Sparks, 830 F.2d at 1558 n. 4. A plaintiff can prove that the employer knew of the harassment by showing that the harassment was open or pervasive enough to charge the employer with constructive knowledge. Vance, 863 F.2d at 1512. A plaintiff may also prove an employer’s knowledge by showing that she complained to higher management. Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir.1988) (per curiam). Of course, there must be some avenue by which an employee can make the employer aware of the illegal conduct. An employer should not be able to avoid respondeat superior liability by simply not giving its employees an opportunity to come forward with their claims of harassment. Applying the above principles, courts have found that, because quid pro quo harassment is directly linked to employment opportunities, an employer is usually directly liable for such conduct. Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir.1989). A supervisor would usually have to be an “employer” or “agent,” as those terms are defined above, in order to be in a position to inflict quid pro quo harassment. In contrast, an employer may be subject to either, or both, direct and indirect liability for hostile environment harassment, depending on whether the environment is a product of harassment by the victim’s supervisor and thus partakes of quid pro quo characteristics, or is merely the product of a co-employee’s harassment and thus constitutes “pure” hostile environment harassment. Compare Steele, 867 F.2d at 1316-17 with Sparks, 830 F.2d at 1560 n. 9. See also Huddleston, 845 F.2d at 904-05. These not-so-simple principles for determining employer liability are further complicated by the suggestion of the Supreme Court and the Eleventh Circuit “that an employer may be insulated from liability for hostile working environment sexual harassment where (1) the employer has an explicit policy against sexual harassment, and (2) it has effective grievance procedures ‘calculated to encourage victims of harassment to come forward’ that the plaintiff did not employ.” Sparks, 830 F.2d at 1560, quoting Meritor Savings Bank, 477 U.S. at 73, 106 S.Ct. at 2408. See also Vance, 863 F.2d at 1513-14. ii. Applying the above principles, the court concludes that sexual harassment in the Montgomery County Sheriff’s Department has permeated all ranks, from the lowest level corrections officers and deputy sheriffs to the sheriff himself, and is so pervasive and severe as to render the working conditions in the department psychologically intolerable for female officers. The court further concludes that this harassment springs in large measure from the fact that the department has adopted and operates under a policy by which female officers are treated as inferiors who are not to be taken seriously, but rather are to be either tolerated or viewed as objects of pleasure and ridicule for the male officers in the department. Although the evidence is replete with credible instances of sexual harassment to support these conclusions, the court will relate only a few instances. For example, Sheriff Mac Sim Butler is himself guilty of sexual harassment. The evidence reflects that, in an effort to satisfy his sexual desires, Sheriff Butler put a low ranking female communications dispatcher through an emotionally harrowing experience which at times left her frightened, humiliated, and helpless. In October of 1987, Butler asked a female dispatcher to join him in getting some coffee and cake. As they went into the coffee room, Sheriff Butler approached the dispatcher, and, in her words, “[h]e put his hands down my side and on my buttocks.” The dispatcher said nothing because, in an effort to “rationalize” what had happened, she concluded that Butler had acted “unintentionally.” However, a few days later, Butler approached her again and asked her if her telephone number was listed. She told him that it was not. Butler then responded “that his wife had been away on a Friday night” and that if he had her number he would have telephoned her and they “could have gotten together.” Although the dispatcher still showed no interest in him, Butler approached her again a day or two later and asked her for her telephone number. She did not respond. After the dispatcher realized that Butler had, indeed, intended to touch her intimately and that he was interested in her, she became very upset. Butler had already ignored her efforts to make known to him, indirectly and diplomatically, that his sexual advances were not welcome. She was concerned that, if she confronted him and rejected him in direct terms, she might lose her job. The dispatcher was not aware of any grievance procedure, and she did not know to whom she could turn for help. She talked to a number of fellow officers and employees, including Sheriff Butler’s secretary. Butler’s secretary suggested that she stay away from him as much as possible. The dispatcher considered consulting an attorney, but decided that any lawsuit would result in her word against Butler’s and that it would be very unlikely that a judge or jury would believe her over a county sheriff. After much anguish and on the advice of a fellow officer, she mustered enough courage to confront Sheriff Butler and tell him she was not interested in him. To her relief, Butler did not retaliate against her. The court is convinced that Sheriff Butler was fully aware that his sexual advances were not welcome; the court is further convinced that Butler was hopeful that the dispatcher would nonetheless be reluctant to reject him because of his authority over her. In other words, Butler knew that he was abusing his supervisory authority when he continued to force himself on her. To be sure, the dispatcher eventually rejected Butler, and Butler did not retaliate against her. However, the court believes that a female officer, out a deep fear that she might lose the source of her livelihood, could very understandably have given in to him. The fact that the dispatcher in this instance did not capitulate and that Butler ultimately did not retaliate against her does not render Butler’s conduct any less reprehensible and intolerable under Title VII. The dispatcher just happened to be courageous enough not to allow him to take advantage of her subordinate status. The administrator of the county jail, Willie McKitt, is also guilty of unsavory and unwelcome sexual advances towards female officers. Beginning in 1986, he sexually harassed a female corrections officer, often in front of other officers. Shortly after the female officer came to the corrections division, McKitt called her “fat ass.” The female officer corrected McKitt by telling him her name, but McKitt ignored her response. On a later occasion, McKitt grabbed her buttocks. She told him not to touch her, but he just laughed and said “If you had been nicer to me, me and you could meet and had something going on by now.” He added that “Your husband won’t know.” On another occasion, McKitt wrote “FA” on a note pad in her view, laughed, and walked off. On another occasion, McKitt approached her as she was standing up and said “Look at that ass____ It’s so fat and firm ... It’s not like the rest of these flabby asses around here ... I just know it’s soft.” And on yet another occasion, when she went to McKitt’s office to pick up her check, he said in front of another officer, “Look at all that fat ass____ Look at all that fat ass. You can even have my check.” The corrections officer was, in her words, “hurt,” “demeaned,” “degraded,” “afraid,” “ashamed,” and made to “feel like I’m about that tall.” She was afraid that if she complained to anyone, McKitt would find out and she would lose her job. Like the female dispatcher, she felt completely helpless because the sexual harassment was coming from her supervisor. Moreover, like Sheriff Butler, Jail Administrator McKitt was fully aware that the female corrections officer viewed his remarks as unwelcome, and that she was afraid to complain because of fear of retaliation. This conduct of Sheriff Butler and Jail Administrator McKitt is doubly intolerable — first and obviously, because it was done without regard to the feelings and humanity of those whom they supervised; but second, also because it was done based on an authority which the public has entrusted to them to be used by them to uphold the law, not violate it. The victims of their conduct were therefore not just the two women they harassed but the public as a whole. The department’s harassment of female officers was not, however, limited to these two higher-ups. Indeed, the higher-ups set the stage for the other male officers; they created an environment in which all men in the department could feel free to engage in sexual harassment at their pleasure. Men at all levels engaged in such conduct. For example, Officer D.R. Rigby asked to come to a female officer’s apartment and said he wanted her “sitting there in a towel when he got there.” On another occasion, Officer Billy Ray Sims grabbed a female officer's buttocks. The female officer complained about Sims to McKitt, but he took no action other than to put a notice on a bulletin board prohibiting male officers from touching female officers. The female officer decided not to take her complaint to Sheriff Butler because she reasonably concluded that she “couldn’t get any results there.” In another incident, Officer Robert Singleton, while intoxicated, touched two female officers in an improper way. Under the pretext of looking to see whether the women had guns on them, Singleton, in the words of one female officer, “started patting and squeezing me from the ... back by touching me closely under my upper arms and going down toward my waist.” Singleton also, in the words of the other female officer, “put his hand around my neck in a massaging manner.” The two women filed a complaint against Singleton charging him with sexual harassment and intoxication, and a disciplinary review board, consisting of McKitt and two other officers, was convened to hear it. To add insult to injury, the board perverted the disciplinary process into a tool to harass the women further. First, the board treated the women as if they had done something wrong, as if they should be faulted for Singleton’s sexual advances and should not have complained about them. Second, the board found that, although Singleton had touched the two women, the touching did not constitute sexual harassment because he did it out of “friendliness.” Finally, the board recommended that the two women, although they had done nothing wrong, be “counselled” along with Singleton for sexual harassment, drinking on the job, and showing improper respect for superior officers; in other words, both the offender and the offended were treated the same. Sheriff Butler adopted the recommendation of the disciplinary review board. On another occasion, a male officer intentionally left a bathroom door open so as to expose himself to a female officer. The female officer filed a formal complaint, but the male officer was only counselled by his supervisor and no disciplinary review board was convened. In another incident, two male officers undermined the authority of a female officer, who had just been named officer of the year, by openly making disparaging remarks about her private sex life. They were neither counselled nor disciplined. Officer Melvin Turner retaliated against two female officers after they rejected him personally. Turner retaliated against a female officer whom he had befriended when he learned that she was going to marry someone else. He waited until almost two days before her wedding to give her leave to take time off for her wedding, even though she had applied for it two months earlier and had continually and alarmingly reminded him of her request as her wedding day approached. She previously had been able to obtain vacation leave easily and without any problem. Turner continued to retaliate against the officer after her marriage by restricting most of her work to a control booth and not allowing her to work in booking as she wanted to do. Turner retaliated against another officer who refused to respond romantically to him by specially scheduling her to work at a time so that she could not keep a previously arranged date with another man. The court has so far focused on harassment which has sexual overtones. However, to be actionable under Title VII, the conduct giving rise to a hostile or offensive work environment need not consist of sexual advances or have clear sexual overtones. Bell v. Crakin Good Bakers, Inc., 777 F.2d 1497, 1503 (11th Cir.1985). Conduct of a nonsexual nature which, for example, ridicules women or treats them as inferior, can constitute prohibited sexual harassment. Applying this principle, the court concludes that because the department’s policies regarding job and shift assignments for women — in particular, its “Two-North” policy and its “balancing” policy — are, as the court has explained, so clearly illegal under the 1985 consent decree and Title VII and are so overtly demeaning to women in the department, the policies can only be viewed as part of the department’s overall intentional scheme to create a hostile and offensive environment for its female officers. Without question, the shift and job assignments policies and the male officers’ sexual advances spring from the same conscious discriminatory bias: that female officers are not co-equals with male officers and are to be viewed as only objects of ridicule and sexual pleasure. Other evidence of non-sexual harassment includes an incident where Jail Administrator McKitt received a letter from some inmates complaining that they were being treated badly by two female officers because the officers were pregnant. McKitt completely ignored departmental procedures prohibiting the putting of inmate complaints in officers’ personnel files, and put the inmates’ letter in the two officers’ personnel files without telling them. In contrast, when female inmates filed the much more serious complaint that led to the Two-North policy — that male officers were encouraging female inmates to pose nude — McKitt threw the inmates’ letter “in the waste basket.” The court is convinced that McKitt, because of his strong bias against women working in the county jail, was intentionally trying to build-up a negative file on the two female officers merely because they were women. The court has also limited its discussion so far to sexual harassment that occurred after the 1985 consent decree. The Sheriff’s Department contends, and the Johnson class agrees, that only these discriminatory acts are actionable. However, the law is well established that evidence of prior acts “may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977); Jordan v. Wilson, 649 F.Supp. 1038, 1046 (M.D.Ala.1986). Prior act evidence is especially important in a sexual harassment case because the issue for the court is not merely whether there was harassment but whether the harassment was so pervasive or severe as to create an abusive working atmosphere. Meritor Savings Bank, 477 U.S. at 67, 106 S.Ct. at 2405. Recent acts of harassment could take on a harsher or more oppressive reality when considered against a backdrop of prior harassment. Here, there is substantial evidence of incidents of sexual harassment before entry of the consent decree in 1985. For example, Officer Billy White continuously made unsavory and unwelcome sexual comments to three female dispatchers. The women complained to Sheriff Butler. White’s behavior stopped, but only temporarily, after Butler informed him of the women’s complaint. The women decided not take any further action because it appeared that the department did not take sexual harassment claims seriously. In another incident that occurred prior to 1985, Jail Administrator McKitt asked a female officer when she was “gonna do this or give him any,” and “when are you gonna give me some pussy.” He would also at times attempt to undo the top button of her uniform shirt. When she refused to agree to his desires, he retaliated against her by placing her on the midnight shift and singling her out for unjust disciplinary treatment. Another woman “lost respect” for McKitt because he was constantly “making passes” at her and other female officers. Because he appeared to be “very serious” when he made his passes, the officer felt “intimidated.” In the officer’s words, “you just didn’t really know what would happen, if you would end up on third shift or what would happen. By him being the officer in charge, you just didn’t know.” Even male officers sometimes found themselves unwillingly entangled in McKitt’s sexual escapades. One male officer who lived alone allowed McKitt to use his apartment for sexual trysts in order “to try to get along with him.” Finally, in determining whether the sexual harassment reflected in the evidence violates the 1985 consent decree and Title VII, the court has not limited its perspective and assessment to the effect of the harassment on the intended individuals, that is, the persons at whom it has been directed. A person may be a victim of sexual harassment without being its intended victim; the challenged conduct need not be directed at the complaining individual. Wattman v. International Paper Co., 875 F.2d 468, 477 (5th Cir.1989). A woman who was not herself the object of sexual harassment would have a claim if she worked in an environment in which harassment was pervasive. Broderick v. Ruder, 685 F.Supp. 1269, 1278 (D.D.C.1988). Applying this principle, the court concludes that the harassment practiced on certain women in the Sheriff’s Department has created an intolerably offensive and hostile environment not only for these women but for all female officers in the department. The harassment has been so open and so pervasive that the victims are the entire Johnson class of employees. Indeed, the court believes that the victims here also include those male officers who harbor a respect and concern for all their fellow officers, irrespective of their sex, and who find offensive to their conscience, and thus intolerable, an environment in which all officers, regardless as to their sex, cannot share equally in the opportunities of employment. iii. The court further concludes that the Montgomery County Sheriff’s Department is itself liable for the sexually offensive and hostile working environment its male officers have created. The court need not try to pigeon-hole the Johnson class’s claims of sexual harassment in order to determine whether the department can be held liable. Regardless of whether the challenged conduct is characterized as quid pro quo sexual harassment or as hostile environment harassment, or whether the concepts of agency or respondeat superior are applied, the Johnson class is entitled to prevail against the department. In other words, the department is liable under all of the various theories of liability previously discussed by the court. First of all, the Sheriffs Department is directly liable under both notions of agency previously discussed. The court finds that under the circumstances in this case several of the perpetrators of the sexual harassment — in particular, Jail Administrator McKitt — were actually acting within the scope of their authority under § 219(1) of the Restatement when they engaged in the illegal conduct. The evidence convinces the court that the department has a policy of discouraging women from remaining in the department and seeking advancement — in particular, in the corrections division — and that sexual harassment was simply a way of furthering that policy. This policy is based on a belief by departmental officials, as explained earlier, that women should not be officers because they are less capable than men physically and mentally, and sexual harassment furthered this policy by making it as uncomfortable and unpleasant as possible for women to remain officers in the department. The court further finds that the perpetrators of the sexual harassment were, within the conceptual confines of § 219(2)(d) of the Restatement, aided in accomplishing their sexual harassment by their supervisory authority over their victims. Finally, the court finds as to both notions of agency — that is, under both §§ 219(1) and 219(2)(d) — that the perpetrators of the sexual harassment possessed sufficient authority from the department over their victims to be considered supervisors or agents of the department. The department is also indirectly liable under the theory of respondeat superior for the sexual harassment by both the supervisors and co-employees of the victims of the harassment. Not only was the sexual harassment so open and pervasive that all those in supervisory authority should have known about it, the key supervisors in fact did know about the harassment because they were themselves perpetrators. The Sheriffs Department offers the defense that it should not be held liable because the victims of sexual harassment in the department failed to take advantage of available avenues for relief, both within and outside the department. The department contends that sex discrimination and, in particular, sexual harassment are prohibited in the department by provisions in an Employee Handbook published by the Montgomery County Commission and provisions in the Rules and Regulations of the Montgomery City-County Personnel Board. The department further contends that any female officer who felt that a male officer had violated these provisions could have sought relief from four sources: by pursuing a complaint through the “chain of command” within the department; by invoking the procedures of the department’s “disciplinary review board”; by seeking help from the Montgomery County Commission Administrator; and by filing a complaint with the Montgomery City-County Personnel Board. As the court explained earlier, the Supreme Court and the Eleventh Circuit have suggested that an employer may be insulated from a claim of hostile environment harassment if the employer has an explicit policy against sexual harassment and if it has effective grievance procedures calculated to encourage victims of harassment to come forward. Here the evidence reflects that the Sheriff’s Department not only has no explicit and unequivocal policy against sexual harassment, it condones and encourages such harassment. Counsel for the department notes that the County Employee Handbook and the Rules and Regulations of the City-County Personnel Board together prohibit sexual harassment. The evidence reflects, however, that the Sheriff’s Department has not viewed these prohibitory provisions as applying to it. First, it is apparent from the conduct of the department’s top supervisors — in particular, Sheriff Butler and Jail Administrator McKitt — that they do not consider sexual harassment as illegal and prohibited in the department. Second, the department has not made known to its employees that these provisions apply to them, and thus most of its employees are unaware of the provisions. Finally, it is open to serious question whether these prohibitory provisions even apply to the Sheriff’s Department. The testimony at trial indicated that, because the sheriff of the county is a constitutionally elected official, his department is somewhat autonomous and, thus, the authority of the County Commission and the City-County Personnel Board probably does not extend over grievance matters in the Sheriff's Department. Furthermore, the department' clearly does not have procedures which are, in the words of the Supreme Court, “calculated to encourage victims of harassment to come forward.” Meritor Savings Bank, 477 U.S. at 73, 106 S.Ct. at 2408 (emphasis added). Indeed, the department’s procedures are hostile to such claims. The “chain-of-command” procedures are not open to claims of sexual harassment. To pursue such procedures, a victim of harassment would have to go through such sexually biased and hostile individuals as Sheriff Butler and Jail Administrator McKitt. A victim could obviously not obtain a fair and impartial review from these men. The “disciplinary board review” process is also not open to such claims. Administrator McKitt appoints the members of the board and often serves on it himself. Such a board could not conceivably provide a fair and impartial means of review. For example, as this court has previously described, two women filed a complaint of sexual harassment against Officer Robert Singleton, only to have the disciplinary board, consisting of McKitt and two other male officers, conclude that the sexual touching of females is appropriate as long as it is friendly, and to have Sheriff Butler accept the board’s recommendation that the two female victims along with Singleton be “counselled” for harassment. It is apparent that most male officers in the Montgomery County Sheriff’s Department — in particular, Sheriff Butler and Jail Administrator McKitt — neither know what conduct constitutes “sexual harassment” in violation of the consent decree and Title VII, nor do they perceive conduct which violates the decree and the Act as serious infractions. The department apparently does not understand that the issue is not whether the male officers view the touching of female officers as friendly, but rather whether the female officers could reasonably consider it “unwelcome.” Meritor Savings Bank, 477 U.S. at 68, 106 S.Ct. at 2406. The Montgomery County Administrator also does not offer an adequate means for redress of complaints of sexual harassment. The administrator’s authority is limited to mediation; he does not have authority to resolve complaints of discrimination. In any event, the department never made known to its employees that the administrator is available to hear complaints of sexual discrimination, and most employees are unaware of him as an avenue of help. Finally, the City-County Personnel Board is not a means of review. Employees of the Sheriff’s Department have never viewed the personnel board as place to resolve grievances; and, moreover, it appears that, while the board has some authority over hiring and firing, it probably has no authority over grievance matters within the Sheriff’s Department and thus cannot resolve grievances raised by its employees. 3. Retaliation Claims The Johnson class claims that officials of the Sheriff’s Department have impermissibly retaliated against two female officers, Sallie Williams and Johnie Love, because of their participation in this litigation. Title VII expressly protects employees from retaliation by their employer for engaging in protected activity under the Act. The 1985 consent decree has similarly provisions against retaliation. For the reasons that follow, the court concludes that Williams and Love have not been victims of retaliation. The method of establishing a retaliation claim is essentially the same as for a claim of race or sex discrimination. Donnellon v. Fruehauf Corporation, 794 F.2d 598, 600-01 (11th Cir.1986). An employee has the initial burden of establishing a prima facie case of unlawful discrimination or retaliation by a preponderance of evidence, which once established raises a presumption that the employer has engaged in proscribed conduct: either race discrimination, sex discrimination, or retaliation. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Many different articulations of a prima facie case exist, varying with the context of the employment decision and the type of proscribed practice involved. The essence of the prima facie case is that the employee presents circumstantial evidence sufficient to generate a reasonable inference by the factfinder that the employer used prohibited criteria in making an adverse decision about the employee. The unifying themes of the various manifestations of the prima facie case in the context of race and sex discrimination are that the employee is a member of a protected group and that the employer has treated that employee differently from other members outside that protected group under the same or similar circumstances, to the employee’s detriment. Dunning v. National Industries, Inc., 720 F.Supp. 924 (M.D.Ala.1989). The test for a prima facie case of retaliation is, however, somewhat different. An employee must show that she was engaged in protected opposition to Title VII discrimination; that she suffered adverse treatment simultaneously with or subsequent to such opposition; and that there was a causal link between the protected opposition and the adverse treatment. Donnellon v. Fruehauf Corporation, 794 F.2d at 600-01. If the employee establishes a prima facie case, the burden then shifts to the employer to rebut the presumption by producing sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated or retaliated against the employee. The employer may do this by articulating a legitimate, non-discriminatory and non-retaliatory reason for the employment decision, which is clear, reasonably specific and worthy of credence. The employer has a burden of production, not of persuasion, and thus does not have to persuade a court that it was actually motivated by the reason advanced. Bur-dine, supra. Once the employer satisfies this burden of production, the employee then has the burden of persuading the court that the proffered reason for the employment decision is a pretext for discrimination or retaliation. The employee may satisfy this burden by persuading the court either directly that a discriminatory or retaliatory reason more than likely motivated the employer or indirectly that the proffered reason for the employment decision is not worthy of belief. By so persuading the court, the employee satisfies her ultimate burden of demonstrating by a preponderance of the evidence that she has been the victim of unlawful discrimination or retaliation. Burdine, supra. However, where, as in this case, a court has conducted a full hearing and has sufficient evidence to make a determination of whether an employee has been a victim of discrimination or retaliation, the court need not go through the above burden-shifting process and may instead go ahead and reach the ultimate issue of discrimination or retaliation. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-16, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403; Powers v. Alabama Department of Education, 854 F.2d 1285, 1290 (11th Cir.1988), cert. denied, 490 U.S. 1107, 109 S.Ct. 3158, 104 L.Ed.2d 1021 (1989). Nevertheless, in addressing the retaliation claims which follow immediately and the race and sex discrimination claims which follow in later sections of this memorandum opinion, the court has at times borrowed parts of the Burdine approach— in particular, the way in which Burdine handles whether something is a pretext — to assist in determining whether a claim has merit. Love and Williams claim that, in the fall of 1988, officials in the Sheriffs Department retaliated against them because they filed affidavits in support of this litigation. Love and Williams allege that they were given less desirable schedules and that they were prohibited from eating in the detention facility “control booths” shortly after they filed these affidavits. In addition, Love complains that departmental officials retaliated against her by forcing her to wear a heavy brown county-issued jacket rather than allowing her to wear her own light brown windbreaker that she had worn for the previous three and one-half years. Both Love and Williams clearly engaged in an activity, the filing of affidavits in this litigation, which is protected by Title VII and the 1985 consent decree. The dispute therefore turns on whether the two female officers suffered adverse employment decisions because of their protected actions. The court finds from the evidence that the department's recent prohibitions against eating in the control booth and wearing personal jackets were not in any way grounded in a retaliatory motive. The policy against eating in the control booths was instituted because the booths were often left messy. Love was required to wear a county-issued jacket so that her outer apparel would be same as all other officers, and the Sheriff’s Department’s rule that all corrections officers wear department-issued clothing so that they can be easily identified as officers is clearly reasonable. Moreover, these two rules applied to all officers, not to just Williams and Love. Williams and Love have not been victims of retaliation in this regard. Love also charges that, in November 1988, Lieutenant Melvin Turner changed her off-days from Saturdays and Sundays, the most desirable combination, to Sundays and Mondays. Williams charges that in that same month Turner changed her off-days in a way that resulted in her losing holiday overtime pay. The evidence is confusing as to the mental calculus that went into these changes. The court need not, however, attempt to clear up this confusion because, even if there is no completely reasonable explanation for the changes, the court is still convinced that Turner acted in good faith and that Williams and Love have not been victims of retaliation. After carefully reviewing the circumstances which led up to the changes, the court believes, and finds, that Turner reasonably and in good faith believed at the time the changes were made that they were necessary to provide adequate around-the-clock staffing within the strict financial constraints of the department. See Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1323 n. 4 (11th Cir.1982) (to concl