Ninth Circuit Reverses Summary Judgment on Issue of Whether Policy Prohibiting Male Deputies from Supervising Female Inmates is Discrimination
In a recent decision, the Ninth Circuit found that there were material issues of fact in dispute precluding summary judgment in favor of a county where male deputies claimed a policy prohibiting male deputies from supervising female inmates in the housing units of the jails operated by the County was unlawful sex discrimination in violation of Title VII. Anderson v. City & Cnty of San Francisco, No. 11-16746 (9th Cir. July 2, 2014).
The City and County of San Francisco (the “County”) had implemented a policy prohibiting men from supervising female inmates for four reasons: (1) to protect the safety of female inmates from sexual misconduct perpetrated by male deputies; (2) to maintain the security of the jail (based on the female inmates’ ability to manipulate male deputies and of the deputies fear of false allegations of sexual misconduct; (3) to protect the privacy of female inmates; and (4) to promote the successful rehabilitation of female inmates. After implementation of this policy, 35 deputies brought suit against the County, claiming this policy violated Title VII. These deputies claimed that this policy directly caused them harm, including resulting in a loss of control over when overtime was available or required, loss of opportunities to develop career-enhancing experience, and loss of preferred shifts and regular days off previously earned by seniority.
The district court granted summary judgment to the County on the plaintiffs’ claims of discrimination on the basis of sex under Title VII. The plaintiffs appealed.
Title VII prohibits employment discrimination on the basis of sex generally, but permits discrimination where “sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of [the defendant’s] particular business or enterprise.” 42 U.S.C. § 2000e-2(e)(1). This is referred to as the BFOQ defense. However, as the Ninth Circuit pointed out, the BFOQ defense is written narrowly and has been read narrowly by the United States Supreme Court. Anderson, p. 11. “A BFOQ can be established only by ‘objective, verifiable requirements [that] concern job-related skills and aptitudes.’” Id. (quoting Int’l Union, United Auto., Aerospace & Agric. Implement Works of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991)).
As the Ninth Circuit explained, the district court granted summary judgment to the County on the grounds that being female was a BFOQ for supervising female inmates—and in deciding this, “granted considerable deference to the judgment of the Sheriff, who had asserted that the Policy was necessary to protect the safety of female inmates, the security of the jails, the privacy of female inmates, and the ability of female inmates to be rehabilitated.” Id., p. 12. Based on the fact that protecting these interests was part of the normal operation of the jails and because the sheriff had decided that to protect these interests, men needed to be kept out of supervisory roles, the district court concluded that the County had proven that being female was a BFOQ in this circumstance.
The Ninth Circuit discussed another case it had decided recently in which it had reversed summary judgment granted to the Nevada Department of Corrections on a claim that its policy that prohibited men from serving as correctional lieutenants in a women’s prison violated Title VII. See Breiner v. Nevada Dep’t of Corr., 610 F.3d 1202 (9th Cir. 2012). In deciding Breiner, the court used the following two pronged test to determine if the employer had met its burden of proving that sex was a BFOQ—in employer had to prove by a preponderance of the evidence that (1) the job qualification justifying the discrimination is reasonably necessary to the essence of the business and (2) that sex is a legitimate proxy for the qualification because (a) it has a substantial basis for believing that all or nearly all men lack the qualification or (b) it is impossible or highly impractical to insure by individual testing that its employees will have the necessary qualifications for the job. Anderson, p. 13. Even in the “unique context of prison employment, administrators seeking to justify a BFOQ must show ‘a high correlation between sex and ability to perform job functions” and an employer has to show that alternative approaches are not available. Breiner, 610 F.3d at 1211-13 and 1215.
Before applying the two-pronged test from Breiner, the Ninth Circuit addressed the question of whether the Sheriff’s judgment was entitled to deference as a matter of law. The court concluded that because the decision-making process was either insufficiently reasoned or insufficiently based on available information and experience, the County failed to meet its burden of showing that the Sheriff’s judgment was entitled to deference as a matter of law. Anderson, p. 18. The court then turned to the two-pronged test.
The court concluded that the County “easily” met its burden of demonstrating that there are job qualifications derived from the four justifications for the policy that are reasonably necessary to the essence of operating the jails, explaining that each of the four justifications given by the sheriff (protecting female inmates from sexual misconduct by male deputies, maintaining jail security, protecting inmate privacy, and preserving the ability of female inmates to rehabilitate) has been previously recognized as justifying facially discriminatory policies. Id., p. 19. So then the question is whether sex is a legitimate proxy for the qualifications.
The County had asserted that the primary reason for the adoption of the policy was to protect the safety of female inmates by reducing the possibility of sexual harassment and abuse by male deputies. While this is an extremely important interest to protect, the Court found, the County had not shown that the sheriff had a substantial basis for believing that all or nearly all male deputies were likely to engage in sexual misconduct with female inmates nor that it is impossible or impractical to insure by individual testing that a male deputy does not pose such a threat (for example, through background checks). Id., pp. 20-21. As to the second justification (maintaining jail security), the Court found that the record on summary judgment was insufficient to demonstrate that all or substantially all of male deputies would be vulnerable to manipulation by female inmates or that it would be impossible or impractical to test male deputies to determine if they would be vulnerable to such manipulation. Similarly, as to the third justification (protecting the privacy interests of female inmates), the Court found that the record did not demonstrate any actual risk of the privacy of female inmates being compromised by male deputies, as the jail had in place polices to prevent male deputies from performing certain duties (such as strip searches) that might violate the privacy of the inmates. Id., p. 23. Finally, the Ninth Circuit found that there was a genuine dispute as to whether excluding male deputies is a legitimate proxy for excluding deputies who would interfere with the rehabilitation of female inmates, pointing out that the function of supervising the inmates is actually separate from providing rehabilitation programming to the inmates. Id., p. 24.
Based on these findings, the Ninth Circuit found that the County was unable to meet its burden of proving that there is no issue of material fact as to whether its policy of excluding all male deputies from the female housing units is a legitimate proxy for excluding only those deputies that truly pose a threat to the important interests the jail seeks to protect. Id., p. 27. Thus, the district court’s grant of summary judgment as to the County on the plaintiffs’ sex discrimination claims was reversed and the district court’s denial of summary judgment to the plaintiffs was vacated.