For years, the State of Washington dealt with allegations of sexual abuse and misconduct by male prison guards, breaches of inmate privacy, and security gaps. A primary driver, according to prison authorities, was the lack of female correctional officers to oversee female offenders and administer sensitive tasks, such as observing inmates showering and dressing and performing pat-downs and strip searches.
The State undertook a comprehensive assessment and ultimately designated a limited number of female-only correctional positions – 110 positions to patrol housing units, prison grounds, and work sites. Teamsters Local No. 117, which represents rank-and-file prison workers, challenged the designations on sex discrimination grounds, though it conceded the legitimacy of 50 of the female-only designations.
The federal Ninth Circuit Court of Appeals upheld the State’s plan. The Court began with the proposition that “a facially discriminatory employment practice, such as the sex-based hiring practice we have here, may pass legal muster if sex is a bona fide occupational qualification or BFOQ. The BFOQ defense applies to special situations where employment discrimination is based upon objective, verifiable requirements that concern job-related skills and aptitudes. Under our precedent, the BFOQ defense may be invoked only when the essence of the business operation would be undermined by hiring individuals of both sexes.
“In light of these demanding legal standards, BFOQs are few and far between. In many industries, it is difficult to imagine any jobs that would qualify as BFOQs. However, the unique context of prison employment is one area where courts have found sex-based classifications justified. The Supreme Court directly addressed the prison environment in just one case, Dothard v. Rawlinson, 433 U.S. 321 (1977). The Court held that, in the context of a maximum-security facility ‘where violence is the order of the day’ and sex offenders were interspersed with other prisoners, a female guard’s sex may ‘undermine her capacity to provide the security that is the essence of a correctional counselor’s responsibility.’
“Although limited gender discrimination may be permissible in the prison employment context, prison administrators do not get a free pass. The Department must have an objective basis in fact for its belief that gender discrimination is ‘reasonably necessary’ – not merely reasonable or convenient – to the normal operation of its business. This means prison administrators seeking to justify a BFOQ must show a high correlation between sex and ability to perform job functions. Speculation about gender roles is insufficient – the evidence must demonstrate that prison administrators had a concrete, logical basis for concluding that gender restrictions are reasonably necessary and that alternatives to sex discrimination have been reasonably considered and refuted.
“Preventing sexual assaults is also a legitimate prison objective. First and foremost, prison administrators have a high interest in shielding inmates from abusive and inherently coercive encounters. Indeed, even allegations of sexual misconduct can destabilize prison life: they can breed mistrust and damage morale among officers and prisoners; drain prison resources; and undercut the effectiveness of male officers with the looming threat of a career-ending accusation.
“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. 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.”
Teamsters Local Union No. 117 v. Washington Department of Corrections, 2015 WL 3634711 (9th Cir. 2015).