By Darren Smith, Weekend Contributor

The Ninth Circuit Court of Appeals issued a ruling permitting the Washington State Department of Corrections (DOC) to designate a number of open positions within its prison system that are available solely for female candidates.

The Court held that the DOC articulated a well-founded and researched interest in designating a specific number of female only positions to address issues related to privacy interests of women inmates and to reduce the number of sexual improprieties involving male employees, especially within the state’s prison facility for women located in Washington. The state also articulated successfully the need to employ female only positions for the normal and regular operation of its women’s prisons.

In an opinion published June 12th, the Court upheld a District Court decision granting summary judgment favoring the DOC where the State of Washington did not discriminate against male corrections employees in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e.

The DOC argued that it could establish a Bona Fide Occupational Qualification (BFOQ) reasonably necessary to the normal operation of a women’s prison.

Plaintiff for the case is the Teamsters Local Union No. 117 representing corrections officers employed by the DOC. The court made a ruling accepting that plaintiff’s standing to appeal but this will not be addressed in this article.

The particulars and events contained within the discovery of the case are both sad and frankly an embarrassment to both sides of the contention. Washington, along with other states, have female inmates of women’s prisons who suffered sexual assaults, harassment, misconduct by guards and breaches of personal privacy outside the realms of standard prison procedures. A catalyst of much of the difficulties originated from a lack of female prison guards that allowed some of the outrageous situations to unfold. Some of the tasks that should have been delegated to female guards included overseeing female offenders, observing inmates during showering and dressing, performing searches including strip searches, and others.

The state having experienced these day to day issues and attempting to overcome the gender-gap and forestall any future lawsuits stemming from abuse by male employees the DOC established a comprehensive assessment that included the designation of a limited number of female corrections officer positions, 110, in various roles in facilities within the scope of the DOC’s infrastructure. The DOC employs over six thousand individuals. The Teamsters stipulated that 50 of these positions constituted a legitimate BFOQ need, it contested however the remaining positions on grounds alleging that union members suffered lack of overtime, denial of shift differentials, and other benefits that were instead designated to female corrections officers whereas these positions could have been staffed by male officers.

For a background on the status of the DOC and its infrastructure that is material to the case the DOC operates two women’s prisons: The Washington State Corrections Center for Women, a 738 inmate facility having minimum security, maximum security, behavioral segregation, and Washington’s Death Row for female prisoners; and Mission Creek Correctional Center for Women, a 300 inmate minimum security facility in Belfair.

For several decades male officers compromised a large majority of the staff. In the 1980’s the DOC experienced a large shrinkage in the numbers of female officers. This shortage led the DOC to enact rules allowing male corrections officers to assume increasing numbers of duties including random, clothed pat down searches. Female inmates contested this practice as unconstitutional. An U.S. District Court agreed and the ruling was subsequently affirmed by an en banc ruling of the Ninth Circuit that established the practice concluding that “cross-gender body searches inflict unnecessary and wanton pain on female inmates, many of whom have suffered a history of sexual abuse before incarceration, and, therefore, violate the Eighth Amendment.”

In light of this ruling (Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc)) and subsequent legislation (RCW 9.94A.631(2) (2012)) female corrections officers must perform all non-emergency pat downs of female inmates.

The DOC struggled to address both the common and statutory law restraints put on the state’s use of male corrections officers in a female prison environment for several years. In 2003 Congress enacted the Prison Rape Elimination Act which provided, through the Department of Justice, a grant for two full time employees charged with investigating allegations of sexual assault within the state’s prison system. The program revealed a great many substantiated incidents of sexual abuse by guards against female inmate victims. Disturbingly, within a two and a half year period, forty six incidents of sexual misconduct where found. This led in 2007 an inmate instigated class action lawsuit against the state. Plaintiff’s complaint detailed incidents where guards assaulted and fondled female inmates and forced them to perform oral sex and masturbate in the presence of male officers.

A week after the filing of the lawsuit the DOC hired an outside consultant to investigate allegations of sexual assault within the prison system of female inmates. After a four-month investigation, seventy two “Jane Doe” inmates reported outrages up to and including two incidents of guards impregnating inmates and smuggling contraband items for sexual favors.

In light of this, the DOC further consulted out of state prison administrators and consultants who made recommendations on how the state could overcome the underlying problems that led to these abuses.

From the majority opinion:

Following the expert recommendations, the Department in January 2008 implemented an array of reforms to “reduce prison sexual assaults and related behavior.” Those efforts included aggressive recruitment of female prison guards; pre-hiring psychological testing; training programs to enhance “gender awareness”; and the installation of privacy curtains, security cameras, and restricted access entry cards. Then, in May 2008, prison administrators again requested guidance from the Commission on the Department’s proposed 110 female-only guard post assignments at the two prisons. The Department submitted a tailored request for each post, explaining the job responsibilities and why the positions needed a female officer. The state told the Commission that “[i]ncreasing the number of female staff will reduce the risk of sexual misconduct, reduce allegations of sexual misconduct, and protect male staff exposed to vulnerable situations” and unfounded complaints of abuse. The state also emphasized the privacy requirements of female inmates and the operational need to have female officers on hand to perform necessary searches and other tasks. The requested staffing changes, according to the state, would “ensure the security of the prisons, safety of incarcerated offenders, and protection of the privacy and dignity of female offenders.”

After touring the prisons, interviewing administrators, and collecting detailed documentation, the Commission in February 2009 approved the Department’s request for all 110 positions. The Commission offered Teamsters the chance to provide input but none was forthcoming. The Commission determined that, with the then-existing staff makeup at the
prisons, the state was “unable to ensure a proper balance between security considerations and the privacy rights of offenders” and that there were no reasonable alternatives to sex-based staffing.

The class action settled soon after. As part of the settlement agreement, the Department agreed to enforce a “zero tolerance” policy regarding sexual misconduct, not to rehire five male correctional officers accused of abuse, and to submit regular reports on staff misconduct in women’s prisons. The settlement also included an undisclosed payout to abused prisoners. Stipulation and Proposed Order, Jane Doe v. Clarke, No. 07-2-01513-0, Dkt. No. 170 (Thurston Co. Super. Ct. Aug. 6, 2010).

The Department’s reprieve from the courtroom did not last long. In September 2011, Teamsters, which represents some 6,000 state correctional workers, filed this federal
lawsuit, alleging that the sex-based staffing policy implemented in 2009 violates the civil rights of male prison guards.

With these background considerations in mind, the Panel articulated how an exception the Title VII of the Civil Rights Act guaranteeing equality in job candidacy might be mitigated via a Bona Fide Occupational Qualification (BFOQ).

Citing section 2000e-2(e)(1):

[I]t shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of . . . sex . . . where . . . sex . . . is a bona fide occupational qualification reasonably necessary to the
normal operation of that particular business or enterprise.

Again from the Panel’s Opinion:

The Supreme Court has emphasized that “[t]he BFOQ defense is written narrowly, and this Court has read it narrowly.” UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991). The BFOQ defense applies to “special situations” where employment discrimination is based upon “objective, verifiable requirements” that “concern job-related skills and
aptitudes.” Id. An “occupational qualification” means a “qualification[] that affect[s] an employee’s ability to do the job.” Id.

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.” Breiner v. Nev. Dep’t of Corr., 610 F.3d 1202, 1210 (9th Cir. 2010) (emphasis in original) (internal quotation marks and citation omitted). To justify discrimination under the BFOQ exception, an employer must show, by a preponderance of the evidence, that: (1) the “job qualification justifying the discrimination is reasonably necessary to the essence of its business”; and (2) that “sex is a legitimate proxy for determining” whether a correctional officer has the necessary job qualifications. Ambat v. City & Cty. of San Francisco,
that prison officials are not required to provide “objective evidence, either from empirical studies or otherwise,” and remanding the denial of a BFOQ designation for evaluation “on the basis of the totality of the circumstances contained in the entire record.”).

[…]

The Department’s exhaustive process fits well within the rubric of “reasoned decision making” and is entitled to deference. After the Jane Doe prisoner class action was filed in 2007, the Department did not rush headlong into sex-based staffing. Instead, it hired experts, consulted with other states, reviewed relevant caselaw, documented scores of sexual misconduct allegations and investigated many more, and sought advice from the Human Rights Commission. Drawing on its decades of experience, the state did not view sex-based staffing as a panacea, instead proposing a package of reforms that included measures such as applicant psychological testing, sex-awareness training, and security cameras.

Summarizing further elements the Panel enumerated evidence provided by the DOC that necessitated delegation of specific prison tasks to female guards actually enhanced the institution’s security and operation as well as addressing the needs inherent among inmates of women’s prisons. The state satisfied the Panel’s requirement of a “legitimate proxy” to achieve one or more of these goals, meaning that there is a high correlation between sex and the ability to perform job functions.

Areas of necessity included housing units where corrections officers must perform pat downs and strip searches of female inmates leaving and returning to the facility for duties such as work gangs, court appearances and the like. Male guards cannot legally perform these searches. Furthermore inmates are subject to supervision while dressing, bathing and other activities and during the providing of urine samples that are free from tampering or evidence destruction. In light of these realities it is not rational to remove a female guard from the situation and that during times when a break or other duty might take a guard away from her post, the replacement of a male guard in place of a female guard simply substitutes one problem for another. The Panel ruled that providing of a female guard to address these situations constituted a permissible BFOQ necessary for the duties required.

In its conclusion the Panel “affirm[ed] the district court’s grant of summary judgment for the state. The Washington Department [of Correction]’s creation of a narrow category of female-only job assignments is a “bona fide occupational qualification reasonably necessary to the normal operation” of the women’s prisons.”

As an aside, the panel seemed astonished at the Teamster’s arguments stated by an expert witness–quoted as follows:

Female inmates cannot be shielded from the world in which we live. If they are to reintegrate into society, they have to be taught how to deal with abusive staff, male or female. They have to be taught what constitutes a healthy interaction and what does not. They cannot learn those skills if they are sheltered from contact with males in a position of authority. ¶ Sexual abuse is present in all areas of our society: in schools, (at all levels), business, government, military and families. Just as females have to be taught how to deal with those abuses in the larger society, female inmates must be taught as part of the rehabilitation process how to deal with all abusive staff: males and females, custody staff and civilian staff.

To which the Panel declared:

To state something so obvious we never imagined it would need to be written: we reject any suggestion that female prisoners would benefit from being subjected to abusive prison guards as “part of the rehabilitation process” so that they may better “reintegrate into society.”

If this “expert’s” testimony was any indication of the prison guards’ vision of a livable prison environment for female inmates it is clear that much work remains to be done–the least of which might involve a changing of the guards.

By Darren Smith

Source:

TEAMSTERS LOCAL UNION NO 117 V. WASHINGTON DEPT OF CORRECTIONS

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