The city and county of San Francisco may be engaging in unlawful sex discrimination under Title VII of the 1964 Civil Rights Act by barring male deputies from supervising female inmates in county jails, the U.S. Court of Appeals for the Ninth Circuit ruled July 2.

Ruling on consolidated suits filed by 35 San Francisco Sheriff’s Department deputies of both sexes challenging a 2006 policy, the Ninth Circuit reversed a district court decision that the policy was valid under the bona fide occupational qualification exception to Title VII and the California Fair Employment and Housing Act.

Federal courts are divided on if and when the narrow BFOQ defense to sex discrimination is available to state and local government employers regarding jobs in correctional institutions.

In Breiner v. Nevada Dep’t of Corrections, 610 F.3d 1202, 109 FEP Cases 1153 (2010), the Ninth Circuit previously rejected Nevada’s BFOQ defense for its policy that only female correctional officers were eligible for promotion to lieutenant in a state prison housing female inmates.

The court in Breiner said an employer asserting a BFOQ defense must prove “the job qualification justifying the discrimination is reasonably necessary to the essence of its business” and that sex is “a legitimate proxy” for the job qualification because there’s a “substantial basis” for believing all or nearly all men lack the qualification or it’s “impossible or highly impractical” to ensure by individual testing which men have the qualification.

BFOQ Defense Not Proven

San Francisco satisfied the first prong of the Breiner test but not the second, the Ninth Circuit said.

The city and county’s asserted interests of preventing sexual misconduct between male guards and female inmates as well as protecting female inmates’ privacy and jail security are essential parts of the jails’ mission, the court said.

But unlike the district court, the Ninth Circuit said San Francisco failed to prove as a matter of law that sex is a BFOQ for deputies supervising female inmates and that non-discriminatory alternatives, such as background checks and psychological testing, couldn’t weed out applicants or deputies likely to engage in the feared misconduct.

“The justifications offered by the county in support of the policy each speak to extremely important concerns, and the sheriff is to be commended for his attention to the welfare of female inmates in San Francisco’s jails,” the court said.

“However, the fact that the policy seeks to advance such important goals as inmate safety is not, by itself, sufficient to permit discrimination on the basis of sex,” Judge Mary H. Murguia wrote. “When moving for summary judgment, the county bears the heavy burden of showing that there are no genuine issues of material fact as to whether excluding male deputies because of their sex is a legitimate substitute for excluding them because they are actually unfit to serve in the female housing pods. On the record before us, the county has not made such a showing.”

Judges Stephen S. Trott and Sidney R. Thomas joined in the decision.

Mixed Decision for Deputies

The decision includes “good news” and “bad news” for the deputies who sued, said Lawrence D. Murray, a San Francisco lawyer who represents the plaintiffs, the majority of whom are female deputies.

The good news is the Ninth Circuit ruled an employer can’t bar all men or all women from a job but must try alternate means to accomplish legitimate employer objectives, Murray told Bloomberg BNA July 7.

Unlike the district court, the Ninth Circuit said San Francisco failed to prove as a matter of law that sex is a BFOQ for deputies supervising female inmates and that non-discriminatory alternatives, such as background checks and psychological testing, couldn’t weed out applicants or deputies likely to engage in the feared misconduct.

The bad news is the Ninth Circuit affirmed the district court’s denial of $127,447 in requested attorneys’ fees for three plaintiffs who settled their retaliation claims after the court denied San Francisco summary judgment on those claims, Murray said. Instead, the district court awarded only $8,925 in fees for “retaliation-specific work,” holding no fees were available for work on the plaintiffs’ sex discrimination claims.

The Ninth Circuit found no abuse of discretion in the reduced fee award in a case that already has consumed a lot of time and effort, Murray said. He said the case could run several more years following the remand to the district court.

About 20 plaintiffs are female deputies concerned about their own safety in dealing with female inmates after the sheriff’s department in 2006 adopted the policy of no male deputies in female housing units, Murray said.

Since there’s a shortage of female deputies, the female plaintiffs also must work involuntary overtime shifts of up to 16 hours because the more numerous male guards weren’t allowed in the female housing units, Murray said. The sheriff’s department is losing female deputies unable to balance their job, family and other demands, he said.

A union representing the deputies also sued over the 2006 policy but lost and the deputies then pursued their own lawsuit, Murray said.

The BFOQ decision is a “setback” for San Francisco but not a defeat, said Gabriel Zitrin, a spokesman for the city attorney. The appeals court doesn’t rule out a BFOQ defense and the city will attempt to prove the defense and raise other relevant issues before the district court, Zitrin told Bloomberg BNA July 7.

Limited Deference to Employer

Some deference by courts is warranted to the judgments of prison administrators, provided those judgments are the product of a “reasoned decision-making process, based on available information and experience,” the Ninth Circuit said, citing Breiner.

“Deference often plays a significant role in supporting a BFOQ defense in the corrections context, and we do not downplay the importance of respecting the judgment of the officials who are most knowledgeable about how best to address the challenges posed by a particular institution,” Murguia wrote. “Nevertheless, such deference is not automatic.”

The process followed by San Francisco Sheriff Michael Hennessey prior to adopting the ban on male guards in female inmate housing units may have fallen short of the “reasoned decision-making process” standard, the court said.

The sheriff consulted with other department officials and jail commanders and looked at multiple incident reports before deciding the policy was needed, the court said.

But the sheriff never solicited the views of the deputies themselves or reached out to outside sources, such as other jurisdictions that might have experienced similar issues with guard-inmate sexual relations, the court said.

“[W]e are not concluding that the decision-making process supporting a discriminatory policy needs to take any particular form,” the court said. “However, it is significant that the extent of the sheriff’s efforts to ensure that his judgment was the result of available information and experience contrasts sharply with the efforts undertaken by other officials implementing similar policies that have withstood Title VII challenges on BFOQ grounds.”

The district court deferred to the sheriff’s judgment based primarily on the sheriff’s qualifications rather than the characteristics of his decision-making process, the Ninth Circuit said. “This reasoning is not consistent with our precedent, which conditions deference on whether the decision-making process itself was reasoned and well-informed,” Murguia wrote.

The record shows “a trier of fact could conclude the sheriff’s judgment was not preceded by a decision-making process that was sufficiently reasoned in proportion to the seriousness of imposing the policy,” the court said.

The sheriff’s judgment is entitled to judicial deference as a matter of law, the court said. San Francisco therefore can’t rely on such deference in meeting its burden of proving the BFOQ defense under Breiner, the court said.

Sex as Proxy in Dispute

The job qualifications cited by the sheriff are “reasonably necessary” to the essence of operating San Francisco’s jails, so the city and county satisfy the first prong of the Breiner test, the court said.

But San Francisco didn’t prove the second prong as a matter of law, i.e., show that sex is a legitimate proxy for determining whether a deputy actually has the necessary job qualification, the court said.

Statistical evidence regarding past sexual conduct between guards and inmates doesn’t prove “all or substantially all” male deputies are likely to engage in sexual misconduct, the court said.

“To suggest that all or most male deputies pose such a threat would amount to ‘the kind of unproven and invidious stereotype that Congress sought to eliminate when it enacted Title VII,’ ” the court said, citing Breiner.

A genuine factual dispute remains about whether it’s “impossible or highly impractical” for San Francisco to ensure by individual testing a male deputy doesn’t have the propensity for sexual misconduct with female inmates, the court said.

San Francisco suggested its existing background checks and psychological screens for deputies are insufficient because they can’t detect all potential violators of the rules against sexual contact.

But the court said a genuine dispute remains “over whether the tests that are currently or could be used” would permit San Francisco to “make a practical reliable differentiation between those who are likely to engage in sexual misconduct and those who are not.”

San Francisco argued that allowing male deputies to supervise female inmates also poses a threat to jail security because female inmates would find male guards easier to manipulate than female guards and as a result, could more easily smuggle contraband into the jail or engage in other violations a male guard would miss or overlook.

But the court said there’s a triable issue whether all or substantially all male guards are vulnerable to such female inmate manipulation and whether that alleged risk could be reduced by appropriate testing and training.

The record also fails to demonstrate any actual risk of female inmates’ privacy being compromised by male guards, the court said. Existing policies prevent male deputies from being present during strip searches or other procedures that might violate female inmates’ privacy, the court said. Inmates are required to remain clothed at all times, except when showering, and their bodies are covered by privacy screens when they use the toilet or shower, the court said.

“Discrimination on the basis of sex is almost always disfavored under Title VII,” Murguia wrote. “Thus, even in a correctional setting, our test for whether an employer is entitled to a BFOQ defense—that is, whether an employer has shown that discrimination is ‘reasonably necessary’—is purposefully difficult to satisfy.”

San Francisco isn’t entitled to summary judgment based on the BFOQ defense, the court concluded. “While we do not reach the issue of whether the county could ultimately prevail on plaintiffs’ discrimination claims, the factual disputes in this case prevent the county from prevailing at this stage,” the court said.

In addition to Lawrence D. Murray, Robert C. Strickland of Murray & Associates in San Francisco represented the deputies. Daniel H. Bromberg and Timothy A. Butler of Quinn Emanuel Urquhart & Sullivan in Redwood Shores, Calif., represented plaintiff John Gray. Dennis J. Herrera, Elizabeth S. Salverson and Rafal Ofierski of the San Francisco Office of the City Attorney represented the city and county.

From Bloomberg-BNA