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Prohibiting Male Guards for Female Inmates Might Be Discriminatory
 

By Ursula A. Kienbaum   8/4/2014
 

The city and county of San Francisco may be engaging in unlawful sex bias under Title VII of the 1964 Civil Rights Act and state law by barring male deputies from supervising female inmates in county jails, the 9th U.S. Circuit Court of Appeals ruled.

A policy of the San Francisco Sheriff’s Department (SFSD) has prohibited male deputies from supervising female inmates in female-only housing units of the SFSD’s jails. The plaintiffs, primarily female SFSD deputies who complained that the policy created a staffing shortage, challenged the policy as impermissible sex discrimination under Title VII and the California Fair Employment and Housing Act (FEHA).  

The city and county of San Francisco defended the policy on the grounds that it qualified for the bona fide occupational qualification (BFOQ) exception to Title VII and the FEHA. Under the BFOQ exception, a discriminatory hiring or staffing decision is permissible where sex “is a bona fide occupational qualification reasonably necessary to the normal operation of [the defendant’s] particular business or enterprise.” The district court had granted summary judgment to San Francisco on the grounds that it had established a valid BFOQ defense, and plaintiffs appealed the district court’s ruling to the 9th Circuit.

The city and county cited four reasons for its decision to prohibit male deputies from supervising female inmates: 1) to protect the safety of female inmates from sexual misconduct by male deputies; 2) to maintain the security of the jail in the face of male guards’ fear of false allegations of sexual misconduct by female inmates; 3) to protect the privacy of female inmates; and 4) to promote the successful rehabilitation of female inmates.

San Francisco identified the first two reasons as its highest priorities, and cited the fact that between 2001 and 2009, the SFSD investigated 12 complaints of sexual misconduct or inappropriate sexual relationships between male deputies and female inmates. The SFSD also faced two different lawsuits around the same time period alleging that male deputies had engaged in unlawful sexual misconduct with female employees.

The 9th Circuit acknowledged that sex-based staffing restrictions are common within the context of prison employment, but emphasized that the BFOQ exception is to be construed narrowly and must be established by “objective, verifiable requirements [that] concern job-related skills and aptitudes.”

More specifically, in order to establish that a discriminatory hiring or staffing decision qualifies for the BFOQ exception, an employer must prove by a preponderance of the evidence that the job qualification justifying the discrimination is reasonably necessary to the essence of its business; and also that sex is a legitimate proxy for the qualification because it has a substantial basis for believing that all or nearly all men lack the qualification, or it is impossible or highly impractical to ensure by individual testing that employees will have the necessary qualifications for the job.

The court had no trouble concluding that the city and county had met the first prong of the test because the concerns that precipitated the policy were “reasonably necessary to the essence” of operating the SFSD’s jails. But the court ultimately concluded that San Francisco had failed to establish that sex was a legitimate proxy for addressing these concerns under the second prong of the BFOQ test.

Despite the number of incidents of sexual misconduct perpetrated by male deputies against female inmates at the SFSD’s jails, the court concluded that the city and county had not established a substantial basis for believing that “all or nearly all” male deputies were likely to engage in sexual misconduct with female inmates. Nor had San Francisco established that it would have been “impossible or highly impractical” to test individual deputies for the propensity to engage in sexual misconduct.  

The court reached a similar conclusion on the issue of jail security; namely, that San Francisco had failed to establish that “all or substantially all” male deputies would be vulnerable to manipulation by female inmates, or that it would be “impossible or highly impractical” to test male deputies for susceptibility to such manipulation.

Finally, the court found material questions of fact on the issue of whether privacy interests could not be addressed by other policies (such as privacy screens), and whether the presence of male deputies negatively impacted the rehabilitation of female inmates.

In sum, the court concluded that the city and county had failed to refute “the viability of nondiscriminatory alternatives” to the wholesale exclusion of male deputies from supervising female inmates, and reversed the district court’s grant of summary judgment to San Francisco on plaintiffs’ sex discrimination claims.  

Anderson v. City and County of San Francisco, 9th Cir., No. 11-16746 (July 2, 2014).

Professional Pointer: Before implementing a policy that distinguishes between employees or applicants on the basis of sex, an employer should actively investigate alternative, nondiscriminatory approaches. If, after investigating, no reasonable alternatives are found, the employer must be prepared to answer why it would have been “impossible or highly impractical” to screen for the desired qualification in a nondiscriminatory manner.

Ursula A. Kienbaum is an attorney in the Portland, Ore., office of Ogletree Deakins, an international labor and employment law firm representing management.

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