Tuesday, July 8, 2014

9th Circuit Prison Guard BFOQ Decision Issued

9th cir

image from www.ca9.uscourts.gov

In an interesting decision out of the Ninth Circuit Court of Appeals, the appellate court recently ruled that a city and county's policy of prohibiting male guards from overseeing female inmates in the jail system could run afoul of Title VII.  The lower court had concluded that the policy was a valid BFOQ and entered summary judgment for the employer. The Ninth Circuit reversed, reasoning that -- at least for purposes of summary judgment -- the county had failed to establish sex as a BFOQ. The court further concluded that there may be alternative practices with less discriminatory impact that could still serve the employer's goals in the case, including background checks and psychological tests. From the court's decision:

"the County has not met its burden of showing that there is no genuine dispute over whether excluding men from supervisory positions in female housing units is a legitimate proxy for requiring that deputies in those positions not pose a threat to the safety of female inmates...

the County is also unable to show that there is no genuine dispute as to whether it is impossible or highly impractical to insure by individual testing that a male deputy does not have a propensity to perpetrate sexual misconduct."

This case certainly calls to mind the facts of the Supreme Court's decision in Dothard v.  Rawlinson, which is often distinguished on the basis  of the "jungle like  atmosphere" involved in that case.  This is a very interesting decision and certainly worth a quick read… 

--  Joe Seiner

http://lawprofessors.typepad.com/laborprof_blog/2014/07/9th-circuit-prison-guard-bfoq-decision-issued.html

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