Thursday, July 3, 2014
Court Reinstates Challenge to Ban on Men Working in Women’s Jail
By KENNETH OFGANG, Staff Writer
A lawsuit challenging the San Francisco Sheriff’s Department policy banning male deputies from supervising female inmates was ordered reinstated yesterday by the Ninth U.S. Circuit Court of Appeals.
The panel, in an opinion by Judge Mary H. Murguia, said there were triable issues of fact in the case, including whether being female is a bona fide occupational qualification for supervising female inmates.
Then-San Francisco Sheriff Michael Hennessey adopted the policy in 2006, at the same time moving all female inmates from various city and county facilities into one jail.
He said that the policy was designed primarily to protect female inmates from sexual abuse by male deputies, and to protect male deputies from false allegations of the same. In moving for summary judgment in the male deputies’ sex discrimination suit, the department said it had investigated 10 incidents of alleged sexual misconduct or inappropriate sexual relationships between a male deputy and a female inmate.
Alleging that the new policy deprived them overtime and career-development opportunities, and required them to work undesirable schedules, 35 deputies, most of them female, challenged the rules in a 2007 federal sex-discrimination lawsuit against the City and County of San Francisco.
Senior District Judge Susan Ilston ruled that the city had established its BFOQ defense as a matter of law and granted summary judgment. But Murguia said the sheriff’s concerns about illicit jail sex were not enough to establish that the “narrowly drawn” BFOQ exception applied.
The appellate jurist cited Breiner v. Nevada Dep’t of Corr., 610 F.3d 1202 (9th Cir. 2010), which held that the state, which implemented a ban on male correctional lieutenants serving in a women’s prisons, did not establish its BFOQ defense on motion for summary judgment.
The policy, which was adopted in response to a scandal that included a female inmate’s becoming pregnant, relied on the unproven premises that male lieutenants would necessarily tolerate sexual abuse or abuse female inmates themselves, or were necessarily less able than women to understand female behavior, the Breiner court said. Nor, it added, did the state establish that it could not achieve the policy’s goals without depriving the plaintiffs of promotional opportunities.
The cases are sufficiently similar to justify remanding the San Francisco suit to the district court, Murguia said.
“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 judge wrote. “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. 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.”
San Francisco made no such showing, Murguia wrote, adding that the record also fails to show that the policy resulted from a “reasoned process” involving consultation among the sheriff and other stakeholders. The sheriff’s judgment is therefore not entitled to judicial deference, the judge said, adding that the county was “unable to meet its burden of proving that there is no issue of material fact as to whether its policy of excluding all male deputies from the female housing units is a legitimate proxy for excluding only those deputies that truly pose a threat to the important interests SFSD rightfully seeks to protect.”
Judge Sidney Thomas and Senior Judge Stephen S. Trott concurred in the opinion.
The case is Anderson v. City and County of San Francisco, 11-17330.
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