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September 17, 2006
Title VII in the Prison Context
Thanks to Robert Loblaw at Decision of the Day for the pointer to this case on Title VII in the prison context.
No, prisoners do not have Title VII rights, as they are not statutory employees for Title VII purposes, but the prison guards are. But what happens when a female prison guard is sexually harassed by inmates and her employer takes no action?
In Freitag v. Ayers, No. 03-16702 (9th Cir. Sept. 13, 2006), Robert comments that the Ninth Circuit Court of Appeals found:
[T]he California Department of Corrections can be held liable for inmates’ harassment of a female prison guard. Plaintiff Deanna Freitag was a guard in the Special Housing Unit at the notorious Pelican Bay, a maximum security prison reserved for California’s most violent and dangerous criminals. She claimed that Pelican Bay officials violated Title VII by failing to discipline inmates who repeatedly directed sexual comments and acts toward her, including masturbating in front of her on several occasions. Although Freitag consistently reported these acts, her supervisor usually quashed any efforts to discipline the inmates because the incidents were not serious, as it was "only sex."
As Robert points out, although there is nothing remarkable about this case in that it follows well-known Title VII principles regarding harassment of employees by third parties, the interesting question is whether a different analysis should apply when the sexual harassment claims involve prison officials and their decisions about how to run their jail. Given that substantial deference is usually given to the judgment of prison officials in disciplinary matters, should a different framework apply if they decide not to discipline inmates for engaging in certain behaviors?
In this regard, the 9th Circuit found:
Nothing in the law suggests that prison officials may ignore sexually hostile conduct and
refrain from taking corrective actions that would safeguard the rights of the victims, whether they be guards or inmates. As the district court found, “even in an inherently dangerous working environment, the focus remains on whether the employer took reasonable measures to make the workplace as safe as possible.” The CDCR is not, by simple virtue of its status as a correctional institution, immune under Title VII from a legal obligation to take such measures and to protect its employees to the extent possible from inmate sexual abuse.
Sounds right to me. Title VII certainly does not have a prison exemption and, of course, Congress could have provided for one if they thought it necessary.
PS
September 17, 2006 in Employment Discrimination | Permalink
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Comments
While the decision sounds right to me also, it worries me what prison systems will do with it. Given the difficulty of controlling inmate conduct, particularly in supermax settings, I would predict that prisons will simply hire fewer women correctional officers. In fact, they may bring back the argument that being male is a bfoq at least for some prison settings. It's sex discrimination to keep women out, and it's sex discrimination to let them in. I'm not saying that the decision should have come out differently, it's just a really difficult issue. Ultimately, I think it's a matter of prison reform.
Posted by: Marcia McCormick | Sep 17, 2006 10:19:04 PM
While I agree that Title VII has no prison exemption per se (and the result in Freitag is surely correct), the case might logically lend support for a gender BFOQ based on the uniqueness of the prison setting and the sometimes maligned rationale of Dothard v. Rawlinson (BFOQ justified by the fact that the presence of female prison guards can sexually provoke the male inmate population and lead to sexual assault and impaired prison security) So I ask this: is the result in Freitag a positive one if prison officals can lawfully respond to inmate-initiated sexual harassment and the concern that such harassment can undermine security by denying women employment in this prison, or at least denying them employment in the provocative part of the prison.
Posted by: Steven Kaminshine | Sep 18, 2006 8:26:37 AM
In reading the analysis above, the issue that the court seemed to address was whether or not prisons are obligated to respond to complaints of sexual harassment toward employees by prison inmates. I do not think it is possible to completely control the actions of inmates, especially someone in a maximum security area. However, I think what the court was saying was that as the employer, the prison needed to act upon the complaint; not just blow it off as "only sex".
I do think that female prison guards need to understand that there is a strong possibility that they will be subjected to sexual harassment by inmates. At the same time, if the employee complains about the conduct of the inmates, especially the physical conduct of the inmates, the employer has an obligation to respond and discipline inmates appropriately.
This is a huge balancing act between employee rights and the prison’s ability to control an inmate population.
Good luck to the managers and HR people in the prisons.
Posted by: Mel Brender | Sep 27, 2006 1:44:49 PM
