The Ninth Circuit Court of Appeals recently held that sex is a bona fide occupational qualification (BFOQ) for certain guard positions at two women’s prisons in the state of Washington. Teamsters Local Union No. 117 v. Washington Department of Corrections, ___ F.3d ___, 2015 U.S. App. LEXIS 9883 (9th Cir. 2015).
Washington’s Decision to Hire Only Women
The Washington Department of Corrections (WDC) runs two women’s prisons. For decades, men dominated the ranks of prison guards. In the 1980s, the WDC, faced with a shortage of female guards, permitted male guards to perform random, clothed body searches of female inmates. Female inmates sued, asserting that the cross-gender pat-downs were unconstitutional. The Ninth Circuit agreed, holding that the searches were a violation of the Eighth Amendment’s prohibition against cruel and unusual punishments.
In the following years, the WDC received widespread allegations of sexual abuse of female inmates. In 2007, female inmates filed a class action against the WDC, alleging numerous sexual assaults by male guards against them. In response, the WDC conducted an internal investigation that confirmed numerous instances of sexual assault. The WDC also hired consultants to review prison practices. The consultants recommended the establishment of certain sex-specific posts in the female prisons.
In 2008, the WDC submitted a request to the Washington Human Rights Commission that it approve the identification of 110 female-only guard-post assignments at the two female prisons. The WDC identified each position, explaining the job duties and why the positions required a female guard. The WDC stated that limiting the identified positions to females would:
- reduce the risk of sexual misconduct
- reduce allegations of sexual misconduct (founded or unfounded)
- protect male staff exposed to vulnerable situations
- protect the privacy and dignity of female inmates
In 2009, the commission approved the WDC’s request for all 110 positions. The 2007 class action settled soon thereafter.
The Teamsters’ Challenge
The Teamsters, which represents about 6,000 corrections officers in Washington, sued the WDC, alleging that the sex-based staffing policy violates the civil rights of male prison guards under Title VII. The district court granted summary judgment for the WDC on the Teamsters’ sex-discrimination claim. It ruled that judicial deference to the reasoned judgment of state prison officials was warranted, and concluded that the staffing policy was justified as a BFOQ for each applicable job category to protect the privacy of inmates.
The Ninth Circuit’s Analysis
The Ninth Circuit began its analysis by noting that a facially discriminatory employment practice, such as the WDC’s sex-based hiring policy, may still be legal if sex is a BFOQ for the applicable positions. That narrow exception to illegality under Title VII is found at 42 U.S.C. § 2000e-2(e)(1):
it shall not be an unlawful employment practice for an employer to hire . . . employees . . . on the basis of . . . sex. . . in those instances where . . . sex . . . is a bona fide qualification reasonably necessary to the normal operation of that particular business . . . .
To justify discrimination under the BFOQ exception, the WDC was required to show, by a preponderance of the evidence, that (1) the job qualification justifying the discrimination was reasonably necessary to the “essence” of its business; and (2) sex was a legitimate proxy for determining whether a correctional officer has the necessary job qualifications.
By this standard, sex-based BFOQs will be “few and far between.” However, numerous circuit courts have upheld sex-based correction-officer assignments in women’s prisons.
The court concluded that the WDC’s sex-based policy was “reasonably necessary” to the “essence of prison administration.” The Teamsters asserted that the sex ban was overly broad, but the appellate court disagreed. The WDC policy was carefully crafted to the staffing needs to fit each guard post, targeting 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 while they shower and use the restroom.
The sex-based policy was reasonably necessary to the essence of the guard positions at issue:
- Security: Security at the prison was enhanced because female guards would not need to be continually moved from one part of the prion to another to perform emergency searches and the like if a female was not in the immediate vicinity of an emergency event.
- Inmate Privacy: Inmates have a protectable interest in not being viewed unclothed by members of the opposite sex; male guards cannot be placed in areas where that will happen.
- Preventing Sexual Assault: The vast majority of sexual assaults, and allegations of sexual assault, involved male guards; the WDC had a legitimate objective to reduce such incidents.
Finally, the WDC proved that sex was a “legitimate proxy” to achieve the foregoing goals. Its decision was based on a detailed deliberative process that produced broad, objectively-verifiable evidence justifying the exclusion of males from narrowly defined positions. The Teamsters did not propose a compelling alternative to the sex-based policy that would effectively achieve the WDC’s legitimate goals.
Lessons to Be Learned
There are going to be few instances where sex will be a legitimate BFOQ for a job position. The Teamsters case presented a job position—a guard in a female prison—that constituted the rare exception that proves the general rule. If an employer does assert that sex is a BFOQ that is “necessary” for the “essence” of a position in its business, the employer had better be well-armed with substantial, convincing, and objectively verifiable evidence that there is no better “proxy” (job qualification) for an employee to effectively perform the requirements of the position at issue.
— John Stock, Benesch Friedlander Coplan & Aronoff LLP, Columbus, OH