State Didn't Violate Title VII by Barring Men In Certain Female-Prison Jobs, 9th Cir. Rules

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By Kevin McGowan

June 12 — The Washington state corrections department didn't engage in unlawful sex discrimination under Title VII of the 1964 Civil Rights by designating 110 close-contact jobs in its women's prisons as available to female guards only, the U.S. Court of Appeals for the Ninth Circuit ruled June 12.

Affirming summary judgment for the Washington Department of Corrections in a lawsuit filed by International Brotherhood of Teamsters Local 117 on behalf of male correctional officers, the court said no Title VII violation occurred because sex is a bona fide occupational qualification (BFOQ) for the positions at issue. The defense requires an employer to prove sex is “a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise.”

Seeking to curb problems that included sexual abuse and misconduct by male prison guards against female inmates, the state reasonably designated a limited number of female-only correctional positions, when those jobs involved strip searches and other situations in which guards viewed inmates unclothed, the court said.

In the wake of a state court class action by female inmates that unveiled documented incidents of sexual assault and invasions of privacy, the corrections department developed the plan that designated as female-only certain correctional officer jobs that involved pat downs, strip searches and supervision of partially dressed or unclothed inmates. Earlier court decisions had established female inmates' rights in non-emergency situations to be patted down or strip-searched only by female guards.

The state's “individualized, well-researched decision to designate discrete sex-based correctional officer categories was justified because sex is a bona fide occupational qualification for those positions,” the court said. It found that the union's “thin evidentiary submissions,” which included expert claims that “were largely unsubstantiated or missed the point,” were insufficient to raise a material factual issue for trial.

The corrections department was “well-justified in concluding that rampant abuse should not be an accepted part of prison life and taking steps to protect the welfare of inmates under its care,” Judge M. Margaret McKeown wrote.

Judges Michael Daly Hawkins and Richard C. Tallman joined in the decision.

Targeted Response Passes Muster 

The court's decision is “a vindication” of the corrections department's “careful consideration” of the competing issues of protecting inmates and maintaining a fair employment system, said Peter Gonick, the state's deputy solicitor general in Olympia, Wash.

The department was careful not to designate more positions as female-only than was necessary to advance its safety, security and privacy goals, he told Bloomberg BNA June 12.

In comparable Title VII cases challenging gender-specific staffing in prisons, the court's decision often turns on how carefully a corrections department looks at the issues and considers alternatives to reserving jobs for one sex only, Gonick said.

Courts including the Ninth Circuit have found sex discrimination when a law enforcement agency doesn't consider the competing interests or consider alternatives, he said.

But in this case, the court said the department followed an “exhaustive process” before implementing a targeted response to its prison staffing issues and their effects on female inmates.

The decision also is “a great victory” for female inmates in the state's two women's prisons, said Melissa Lee, a staff attorney with Columbia Legal Services in Seattle.

The legal aid group represented an intervenor class of female inmates who earlier had sued the department over state prison conditions and spurred the state to change its staffing practices. The inmates' state court lawsuit was settled in 2009, shortly after the department implemented sex-specific staffing, among other changes to address sexual abuse, security and privacy concerns.

The Ninth Circuit decision means the sex-specific staffing for the 110 designated jobs at the two prisons remains in place, Lee told Bloomberg BNA June 12.

Teamsters Local 117 didn't respond to a request for comment June 12.

‘Deference' Due to Department 

The corrections department ran its proposal for sex-specific guard jobs at the women's prisons by the Washington Human Rights Commission, which initially disapproved. After touring the prisons, interviewing administrators and collecting detailed documentation, however, the commission in February 2009 approved the department's proposal regarding the 110 designated jobs at the two prisons.

The Teamsters local, which represents the correctional officers, sued in September 2011, alleging the sex-based staffing policy unlawfully discriminated against male prison guards.

The BFOQ defense is a “narrow exception” to Title VII's ban on sex discrimination that may be invoked “only when the essence of the business operation would be undermined by hiring individuals of both sexes,” the court said, citing Breiner v. Nevada Dep't of Corrections, 610 F.3d 1202, 109 FEP Cases 1153 (9th Cir. 2010).

An employer asserting the defense must prove the “job qualification justifying the discrimination” is “reasonably necessary” to the essence of the business and that “sex is a legitimate proxy” for determining whether a correctional officer has the necessary job qualifications, the court said.

Although approved “BFOQs are few and far between,” the prison context is one in which courts have found sex-based classifications justified, depending on the particular circumstances of each case, the Ninth Circuit said.

The corrections department must prove “an objective ‘basis in fact' ” for believing “gender discrimination is ‘reasonably necessary'—not merely reasonable or convenient” to the normal operation of its business, the court said.

The department meets that standard in this case, the court decided. “The Department's exhaustive process fits well within the rubric of ‘reasoned decision making' and is entitled to deference,” McKeown wrote.

“Drawing on its decades of experience, the state did not view sex-based staffing as a panacea, instead proposing a package of reforms that included measures such as applicant psychological testing, sex-awareness training, and security cameras,” the court said.

The Teamsters argued the department implemented sex-based staffing during a time of “crisis” and it represented little more than a “desperate attempt” to settle the female inmates' pending class action.

But the court said the “union's characterization begs the question: If sordid details of sexual misconduct and constitutional violations do not inspire a ‘crisis' and feelings of ‘panic,' then what does?”

“The state shouldn't be demonized for kicking into gear to find a remedy for its long-running challenges,” McKeown wrote. “In any event, our inquiry does not turn on the subjective state of mind of the department's leadership. The department undertook a rigorous review of its staffing policies to address the issues raised in the report and the class action.”

‘Reasonably Necessary' for Prison Operations 

The Teamsters argued the department took a “blunderbuss approach” to resolving the privacy and security issues raised by the inmates' lawsuit, but the court said the record demonstrates the opposite.

“Instead of a blanket ban on male prison personnel, the department crafted the staffing needs to fit each specific facility and guard post,” the court said. “It targeted only guard assignments that require direct, day-to-day interaction with inmates and entail sensitive job responsibilities such as conducting pat and strip searches and observing inmates when they shower and use the restroom.”

The union's expert acknowledged “no remedy is perfect nor perfectly effective” and the court said it “couldn't agree more.”

“This reality underscores the rationale for deference to prison administrators and the hazard of nitpicking the state's thoughtful response to deep-rooted problems in its women's prisons,” McKeown wrote.

The department's policy rationales for restricting some positions to female guards are “reasonably necessary” to the essence of prison operations, the court said.

“We have little difficulty holding that the state's reasons for adopting the BFOQ designations—improving security, protecting inmate privacy, and preventing sexual assaults—are each reasonably necessary to the essence of operating Washington's women's prisons,” the court said.

Sex ‘Legitimate Proxy.'

The state also must show sex is a “legitimate proxy” to achieve one or more of those goals, meaning there is a “high correlation between sex and ability to perform job functions,” the court said.

The union argued the sex-based staffing is “based on stereotypes” and the state failed to consider nondiscriminatory alternatives.

But the court said the Teamsters' argument “misses the mark” because the department adopted the policy “in the face of documented allegations of abuse.”

“The department also did not rest on assumptions; it provided objective legal and operational justifications for why only women can perform particular job functions, like observing inmates unclothed and conducting non-emergency searches,” the court said.

The Teamsters' suggestions that the department simply could have hired new executives or reconfigured its prison layouts fail to address “the specific operational challenges of maintaining prison security, preserving inmates' privacy, and stopping abuse,” the court said.

“We conclude that sex is an objective, verifiable job qualification for the posts designated as female-only by the department and that the department appropriately considered reasonable alternatives,” the court said.

Spencer Thal and Daniel Swedlow of Teamsters Local 117 in Tukwila, Wash., represented the union. Peter Gonick, Robert Ferguson, Kara Larsen and Ohad Lewey of the state attorney general's office in Olympia, Wash., represented the corrections department. Melissa Lee and Nicholas B. Straley of Columbia Legal Services in Seattle represented the female inmate intervenors.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/TEAMSTERS_LOCAL_UNION_a_Washington_corporation_Plaintiff_Appellan.