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Summaries of recent court cases that affect HR.
Prohibiting Male Guards for Female Inmates Challenged
Anderson v. City and County of San Francisco, 9th Cir., No. 11-16746.
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.
San Francisco Sheriff’s Department (SFSD) policy prohibits male deputies
from supervising female inmates in SFSD 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).
San Francisco defended the policy as a bona fide occupational
qualification (BFOQ) exception to Title VII and the FEHA. Under the
Before implementing a policy that distinguishes between
employees or applicants on the basis of sex, an employer should actively
investigate alternative, nondiscriminatory approaches.
BFOQ exception, a discriminatory hiring or staffing decision is
permissible when sex “is a bona fide occupational qualification
reasonably necessary to the normal operation of [the defendant’s]
particular business or enterprise.” The district court granted summary
judgment to San Francisco, ruling that it had established a valid BFOQ
defense. The plaintiffs appealed to the 9th Circuit.
The city and county cited four reasons for its decision to prohibit male deputies from supervising female inmates:
The 9th Circuit acknowledged that sex-based staffing restrictions are
common within the context of prison employment, but it emphasized that
the BFOQ exception is to be construed narrowly and must be established
by “objective, verifiable requirements [that] concern job-related skills
More specifically, 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 the employer’s
business. The employer also must prove that sex is a legitimate proxy
for the job qualification because the employer 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
applicants will have the necessary qualifications for the job.
The circuit court had no trouble concluding that San Francisco met the
first prong of the test because the concerns that precipitated the
policy were “reasonably necessary to the essence” of operating the SFSD
jails. But the court ultimately concluded that the city and county had
failed to establish that sex was a legitimate proxy for addressing these
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
The court also concluded that San Francisco had failed to establish that
“all or substantially all” male deputies would be vulnerable to
manipulation by female inmates. San Francisco further failed to
establish 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 as to 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 circuit 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. It
reversed the district court’s summary judgment granted to San Francisco
on the plaintiffs’ sex discrimination claims.
Workweek Need Not Maximize Overtime Pay
An employer is not required to begin the workweek on any particular
day and does not violate the Fair Labor Standards Act (FLSA) simply
because the chosen workweek does not maximize an employee’s overtime
compensation, the 5th U.S. Circuit Court of Appeals ruled.
Kevin Johnson and Brad Smith, former employees of Heckmann Water
Resources (HWR), were nonexempt employees who were paid hourly wages.
Their regular schedule at HWR was to work 12-hour shifts for seven
consecutive days beginning every other Thursday. Smith’s shift began at 6
a.m. each day, and Johnson’s shift began at 6 p.m. HWR paid its
employees biweekly using a Monday through Sunday workweek to calculate
overtime. Under HWR’s chosen workweek, Johnson earned two hours of
overtime a week (four hours total for the two-week paycheck period);
Smith earned eight hours of overtime the first week and worked only 36
hours during the second week.
Johnson and Smith filed a lawsuit against HWR claiming that their former
employer violated the FLSA by using the Monday through Sunday workweek
to calculate overtime. The former employees argued that their workweek
In establishing workweeks, employers are encouraged to seek the advice of experienced counsel.
begun on Thursday and ended on Wednesday because they had always
worked those days. Under Johnson and Smith’s proposed workweek, HWR
would have been required to pay each of them 44 hours of overtime
compensation per paycheck.
The 5th Circuit held that an employer can establish its own workweek for
purposes of calculating overtime and is not required to begin the
workweek on any given day.
Worker Need Not Disclose FMLA Leave Return Date
Gienapp v. Harbor Crest, 7th Cir., No. 14-1053.
An employee did not fail to provide essential information regarding the
duration of her leave under the Family and Medical Leave Act (FMLA) when
the employee did not herself know how long the leave would be, the 7th
U.S. Circuit Court of Appeals held.
In January 2011, Suzan Gienapp, who worked for Harbor Crest Nursing
Home, informed her manager that she needed time off to care for her
adult daughter, who was undergoing treatment for thyroid cancer. Gienapp
mailed an FMLA form to Harbor Crest but did not state in the form when
she expected to return to work.
A physician’s statement on the FMLA form indicated that the daughter’s
recovery was uncertain and that if she did recover, she would require
assistance through at least July 2011—well beyond the 12 weeks of leave
provided for under the FMLA. Even though Gienapp periodically phoned
Harbor Crest during her leave, the employer assumed,
Requiring regular updates from employees on leave is
essential. Because the subject of telephone conversations can easily be
disputed, the better practice is to require written updates.
based on the physician’s statement, that Gienapp would not return by
the end of her 12 weeks of FMLA leave and hired a replacement. When
Gienapp reported for work in late March, Harbor Crest told her that she
no longer had a job. Gienapp sued.
The trial court granted summary judgment in favor of Harbor Crest,
ruling that Gienapp had forfeited her FMLA rights by not stating exactly
how much leave she would take. The 7th Circuit reversed the trial
court’s decision. The circuit court distinguished between foreseeable
and unforeseeable leave. Because Gienapp’s daughter could die soon,
which would permit Gienapp to return to work early, or the daughter
could live longer and require additional care, Gienapp’s situation was
one constituting unforeseeable leave. Unforeseeable leave “does not
require employees to tell employers how much leave they need, if they do
not know yet themselves,” the court stated.
By Colin Durham, an attorney with Key Harrington Barnes PC, the Worklaw® Network member firm in Dallas.
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