By Erica Shelley Nelson
In Anderson v. City & Cnty. of San Francisco, the Ninth Circuit reversed the granting of summary judgment to the San Francisco County on claims of sex discrimination, in its jail staffing policies. The court held that the County was unable to meet its burden in demonstrating that it was entitled to a “bona fide occupational qualification” (BFOQ) defense for a policy that excluded male corrections deputies from supervising female inmates.
The plaintiffs were current and former deputies of the San Francisco Sheriff’s Department. In October 2006, SFSD implemented a new policy prohibiting male deputies from supervising female inmates in the housing units of the jails operated by the County. All pods in the jails are single-sex.
The SFSD Sheriff asserted that it adopted the Policy 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 in the face of female inmates’ ability to manipulate male deputies and of the deputies’ fear of false allegations of sexual misconduct by the inmates, (3) to protect the privacy of female inmates, and (4) to promote the successful rehabilitation of female inmates.
The Sheriff’s largest stated concern was protecting the safety of inmates from sexual misconduct. The County indicated that from 2001 until October, 2006, there were ten incidents of sexual misconduct, and only two incidents after the Policy was implemented in October.
In July 2007, 35 deputies, the majority of whom were female, filed suit on the basis of sex discrimination in violation of Title VII and California State law. They claimed that the staffing restrictions caused by the Policy resulted in 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 County argued that the harm was “de minimis” (so minor as to not warrant legal recognition)and that the Policy was permissible under the BFOQ exception to Title VII and state law. The district court upheld the Policy under the BFOQ defense, and the deputies appealed.
Although Title VII prohibits employment discrimination on the basis of sex in most instances, sex discrimination is permitted where “sex …is a bona fide occupational qualification reasonably necessary to the normal operation of [the defendant’s] particular business or enterprise.” The BFOQ defense is written and interpreted narrowly.
To justify discrimination under the BFOQ exception, an employer must ‘prove by a preponderance of the evidence: 1) that 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.
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.’
In reversing summary judgment, the Ninth Circuit evaluated the deference afforded to the Sheriff for instituting the Policy and the BFOQ defense under the facts of the case. The Court determined that the Sheriff will be afforded some deference so long as the Policy is the product of a reasoned decision-making process, based on available information and experience.
The Sheriff indicated that he discussed the policy with his senior staff for months, and reviewed sexual misconduct incident reports, but he did not conduct any internal studies or surveys, consult with outside sources, or consult with his own deputies directly to learn about their experience on the frontlines. Consequently, the Court held that a trier of fact could conclude that the decision-making process was either insufficiently reasoned or insufficiently based on available information and experience; therefore, the County could not meet its burden in showing it was entitled to deference as a matter of law.
After concluding that the Sheriff was not entitled to deference as a matter of law, the Court then examined each of the four rationales offered by the County for the Policy to determine (1) whether any rationale suggests a job qualification reasonably necessary to the essence of operating SFSD’s jails, and, if so, (2) whether sex is a legitimate proxy, as explained above, for determining whether a deputy actually has that qualification.
As to the first prong of the BFOQ defense, the Court held that the County easily met its burden, as a matter of law, of demonstrating that there are job qualifications derived from the four justifications for the Policy that are reasonably necessary to the essence of operating SFSD’s jails. Those job qualifications are: “(1) not posing a threat to the safety of female inmates due to a likelihood of perpetrating sexual misconduct against them; (2) not posing a threat to jail security; (3) not posing a threat to female inmates’ privacy; and (4) not posing a threat to female inmates’ ability to rehabilitate.” Consequently, the Court then examined whether there is any genuine dispute of material fact as to whether being male is a “legitimate proxy” for any of those four job qualifications.
In examining the first qualification, the Court held that the County did not meets its burden in showing 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 did it show that it is impossible or highly impractical to insure by individual testing that a male deputy does not pose such a threat. The statistics cited by the County did not demonstrate that “all or substantially all” male deputies are likely to perpetrate sexual misconduct, and the County was unable to show there were no disputed facts as to whether it is impossible or highly impractical to insure by individual testing that a male deputy does not have a propensity to perpetrate sexual misconduct.
As to the second qualification of “not posing a threat the jail security,” the County argued that male deputies were particularly vulnerable to manipulation by female inmates, leading them to overlook conduct in violation of jail regulations. The County further reasoned that the male deputies fear of being accused of sexual misconduct could lead them to not supervise female inmates as closely as possible, which could also lead to violations of jail regulations. The Court reasoned that the record on appeal was insufficient to demonstrate that “all or substantially all” male deputies would be vulnerable to manipulation by female inmates or be influenced by false allegations, or whether it would be “impossible or highly impractical to test for whether a male deputy is easily manipulated, or influenced by false allegations.
As to the third qualification, the Court held that the County failed to show that there is an actual risk of female inmates’ privacy being compromised by male deputies because there are policies in place to prevent such privacy violations (such as strip searches, and showering).
Finally, as to the fourth qualification, the Court held that there is a genuine dispute over whether excluding male deputies is a legitimate proxy for excluding deputies who would interfere with female inmates’ rehabilitation.
For those reasons, the Ninth Circuit reversed summary judgment in favor of the County on the BFOQ defense holding that the County failed to show 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 SFSD sought to protect.
Editor’s Note: This result is surprising, particularly in the context of a coed correctional institution. However, there is no question that the Court did not find that the Sheriff exercised due diligence in determining whether this Policy was the solution to the problems he sought to address. If the Sheriff had done more than merely consult his senior staff about the Policy and review some sexual misconduct reports, then this case may have been decided differently. The Sheriff made no attempt to consult with his correctional deputies to understand their perspective about the potential Policy, and failed to consider outside sources or potential surveys for his own workforce.
If the Sheriff took more proactive measures to determine whether this Policy was reasonably necessary and likely to prevent sexual misconduct among male deputies, then the Policy may have been upheld and the County could have relied on the BFOQ defense. The Court also seemed particularly troubled by the sweeping nature of the Policy. If the Policy was more narrowly-tailored and permitted male deputies to supervise female inmates in certain contexts, the Court might also have upheld the BFOQ defense.
This decision does NOT mean, however, that the BFOQ defense will ultimately be rejected. It is important to bear in mind the procedural context of this issue – it was presented on a motion for summary judgment. It is very possible, if not likely, that upon remand, the County’s BFOQ claim will still be sustained. The Ninth Circuit simply wasn’t prepared to accept the County’s apparent belief that the BFOQ defense automatically applied in corrections units without some internal analysis as to what was actually needed.
