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

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:

• To protect the safety of female inmates from sexual misconduct by male deputies.
• To maintain security in the face of female inmates’ ability to manipulate male guards and the guards’ fear of false allegations of sexual misconduct by the inmates.
• To protect the privacy of female inmates.
• To promote the successful rehabilitation of 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 and aptitudes.”

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 concerns.

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 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 should have

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,

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.