Metropolitan News-Enterprise


Monday, June 15, 2015


Page 1


Ninth Circuit Upholds Women-Only Hiring at Women’s Prisons




A state’s decision to only hire women to work in certain correctional officer positions at its women’s prisons did not violate Title VII of the Civil Rights Act of 1964, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel said the state presented sufficient evidence that its interest in preventing women inmates from potential abuse by male officers, and in protecting inmate privacy, supported women-only hiring under Title VII’s “bona fide occupational qualification” exception.

The judges affirmed a ruling by U.S. District Judge Benjamin H. Settle of the Western District of Washington, who granted summary judgment to the state’s Department of Corrections, joined by a class of female inmates who intervened, in a suit brought by Teamsters Local Union No. 117, which represents some 6,000 correctional officers.

Union Challenge

The union filed the action in 2011, challenging a staffing policy implemented in 2009. The policy designated 110 correctional officer positions at the state’s two women’s prisons as female-only; the duties assigned to those positions to patrol housing units, prison grounds, and work sites.

Prior to implementing the policy, the department sought the advice of the state’s Human Rights Commission, which had previously rejected the establishment of female-only correctional officer positions. This time, the commission agreed that the department could establish the positions, it said that with the then-existing staff makeup at the prisons, which was overwhelmingly male, 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.

Among the salient events that occurred after the commission’s initial rejection of sex-based staffing in 1998 were the passage of the federal Prison Rape Elimination Act, which found that at least 13 percent of prisoners had been sexually assaulted in prison, and which authorized funding—which Washington, among other states, received—to investigate sexual misconduct allegations in prisons.

Class Action

The investigators were soon dispatched to probe widespread allegations of sexual abuse in the women’s facilities, and in 2007, female inmates brought a class action alleging rampant misconduct at the larger of the two prisons, Washington Corrections Center for Women in Gig Harbor. A consultant hired by the department after the suit was filed documented numerous episodes of sexual misconduct, including the impregnation of prisoners by male officers and the smuggling of contraband in exchange for sexual favors.

Other consultants recommended sex-based staffing as a solution to the problem, citing precedents in other states.

The class action eventually settled. The terms included a “zero tolerance” policy regarding sexual misconduct, an agreement not to rehire five male officers accused of abuse, and a requirement for regular reporting on staff misconduct, along with payments to the class members in undisclosed amounts.

In the Teamsters suit, Settle granted summary judgment on the grounds that the union lacked standing and, alternatively, on the merits. He said that even if there was a triable issue on the need for female officers to prevent sexual assaults, the policy was justified in order to protect inmate privacy.

Affirmed on Merits

The Ninth Circuit panel allowed the record to be augmented and concluded the union had standing. But in an opinion by Judge M. Margaret McKeown, it agreed with the district judge on the merits.

“We conclude that the [department’s] individualized, well-researched decision to designate discrete sex-based correctional officer categories was justified because sex is a bona-fide occupational qualification…for those positions,” the appellate jurist wrote.

The union’s evidence to the contrary was “thin” and the clams of its experts “were largely unsubstantiated or missed the point.”

She castigated one of those experts for opining:

“Sexual abuse is present in all areas of our society. . .[F]emale inmates must be taught as part of the rehabilitation process to deal with all abusive staff: males and females . . .”

The state, McKeown said, “was well-justified in concluding that rampant abuse should not be an accepted part of prison life and taking steps to protect the welfare of inmates under its care.”

Judge Richard Tallman and Senior Judge Michael Daly Hawkins joined in the opinion.

The case is Teamsters Local Union No. 117 v. Washington Department of Corrections, No. 13-35331.


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