GAL BRIEFCASE Ambat v. City & County of San Francisco 757 F.3d 1017 (9th Cir. 2014)

Opinion

MURGUIA, Circuit Judge:

Plaintiffs, . . . deputies of the San Francisco Sheriff’s Department (“SFSD”), appeal the district court’s order granting summary judgment to the City and County of San Francisco (the “County”) on their challenge to SFSD’s policy prohibiting male deputies from supervising female inmates in the housing units of SFSD’s jails. The district court concluded that SFSD’s policy did not violate Title VII’s prohibition on sex discrimination because it fell within the statute’s “bona fide occupational qualification” exception. We reverse the district court’s grant of summary judgment to the County on the sex discrimination claims and vacate the denial of summary judgment to plaintiffs on those claims.

I. FACTS AND PROCEDURAL HISTORY

In October 2006, SFSD implemented a new policy prohibiting male deputies from supervising female inmates in the housing units of the jails operated by the County (the “Policy”). . . .

The adoption of the Policy coincided with SFSD’s plan to consolidate all of its female inmates within a single facility, County Jail 8 (“CJ8”). CJ8 housing units, or “pods,” are composed of cells or sleeping bays arrayed around a central congregation space. Each pod has two tiers and between 56 and 88 beds. At the center of the pod is a podium from which a deputy can see into common areas and into the cells and sleeping bays. Each pod is staffed by two deputies, one of whom remains at the podium while the other makes rounds. Female inmates fill some, but not all, of the available housing pods in CJ8. . . .

Although housing pods are single-sex, CJ8’s pod for inmates receiving medical or psychiatric care is not sex-segregated. Male deputies are not permitted under the Policy to work with female inmates in the housing pods; however, male deputies may be assigned to the mixed-sex medical pod or assigned to transport female inmates between CJ8 and other locations. Male deputies may also enter female housing pods in some circumstances, such as to assist with feeding female inmates.

According to San Francisco Sheriff Michael Hennessey (the “Sheriff”), . . . he adopted the Policy for four reasons: (1) to protect the safety of female inmates from sexual misconduct perpetrated by male deputies, (2) to maintain the security of the jail in the face of female inmates’ ability to manipulate male deputies and of the deputies’ fear of false allegations of sexual misconduct by the inmates, (3) to protect the privacy of female inmates, and (4) to promote the successful rehabilitation of female inmates.

Of the four reasons the Sheriff claims led him to enact the Policy, he identified protecting the safety of inmates from sexual misconduct as the most important. As the County pointed out, between 2001 and 2009, SFSD investigated twelve complaints of sexual misconduct or inappropriate sexual relationships between a male deputy and a female inmate. Ten of those incidents occurred before the Policy was implemented in 2006, and two occurred after. . . .

With this concern for inmate safety in mind, the Sheriff asserts that he considered three responses, apart from enacting the Policy, to the problem of protecting female inmates from sexual misconduct: (1) implementing additional screening of male deputies to determine whether they were likely to engage in sexual misconduct with female inmates, (2) installing additional surveillance cameras to monitor activities in CJ8’s housing pods, and (3) providing additional training to deputies. However, he claims to have rejected each of these alternatives as ineffective or unfeasible, so he proceeded to implement the Policy.

In July 2007, 35 deputies—a majority of whom were female—filed suit against the County, alleging that the policy constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). . . .

. . . Although it did not dispute that the Policy discriminates against deputies on the basis of sex, the County . . . argued that the discrimination that resulted from the Policy was permissible under the “bona fide occupational qualification” (“BFOQ”) exception to Title VII. . . .

[T]he district court ruled that the County was entitled to summary judgment on plaintiffs’ discrimination claims because it had made out a valid BFOQ defense. . . .

II. TITLE VII CLAIM

B. Bona Fide Occupational Qualification Defense

Although Title VII prohibits employment discrimination on the basis of sex in most instances, it permits discrimination where “sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of [the defendant’s] particular business or enterprise.” For example, Title VII would not compel a producer to audition men for a female role in a film, because being female could be a BFOQ for playing that role.

Nevertheless, “[t]he BFOQ defense is written narrowly, and [the Supreme Court] has read it narrowly.” . . .

To justify discrimination under the BFOQ exception, an employer must “prove by a preponderance of the evidence: 1) that the job qualification justifying the discrimination is reasonably necessary to the essence of its business; and 2) that [sex] is a legitimate proxy for the qualification because (a) it has a substantial basis for believing that all or nearly all [men] lack the qualification, or . . . (b) it is impossible or highly impractical . . . to insure by individual testing that its employees will have the necessary qualifications for the job.”

After “surveying . . . decisions applying the BFOQ exception in the prison context,” we observed that “even in the unique context of prison employment, administrators seeking to justify a BFOQ must show ‘a high correlation between sex and ability to perform job functions.’” We also recognized that it would be impossible to prove a BFOQ defense without “demonstrat[ing] that . . . alternative approaches . . . are not viable.”

[W]e must first address the issue of the deference owed to the Sheriff’s judgment in implementing the Policy.

1. Deference to the Sheriff’s Judgment

“Judgments by prison administrators that ‘are the product of a reasoned decision-making process, based on available information and experience,’ are entitled to some deference.”

Here, the record demonstrates that there are genuine issues of material fact as to whether or not such a process led to the Sheriff’s adoption of the Policy. . . .

2. Job Qualifications Reasonably Necessary to the Essence of Operating San Francisco’s Jails

Although deference to the Sheriff’s judgment cannot play a role in our analysis, it is still necessary for us to consider each rationale that has been offered by the County in order to determine whether the County is able to satisfy our BFOQ inquiry based solely on the evidence in the record. We must consider each of the four rationales offered by the County in order to determine (1) whether any rationale suggests a job qualification reasonably necessary to the essence of operating SFSD’s jails, and, if so, (2) whether sex is a legitimate proxy for determining whether a deputy actually has that qualification.

[T]he County easily meets its burden . . . of demonstrating that there are job qualifications derived from the four justifications that are reasonably necessary to the essence of operating SFSD’s jails. Each of the four justifications that the Sheriff claims drove his decision to implement the Policy . . . is essential to the operation of a corrections facility. . . .

Based on these important rationales for the Policy, we have no difficulty in identifying four “job qualification[s] . . . reasonably necessary to the essence of” operating SFSD’s jails, any of which would satisfy the first prong of our test. These qualifications corresponding to the four rationales are (1) not posing a threat to the safety of female inmates due to a likelihood of perpetrating sexual misconduct against them; (2) not posing a threat to jail security; (3) not posing a threat to female inmates’ privacy; and (4) not posing a threat to female inmates’ ability to rehabilitate. We now consider each of these four qualifications under the second prong of our test to determine whether there is any genuine dispute of material fact as to whether being male is a “legitimate proxy” for any of them.

3. Whether Sex Is a Legitimate Proxy for Reasonably Necessary Job Qualifications

The County may show that excluding all male deputies is a “legitimate proxy” for excluding deputies who lack one of the four qualifications if there is (a) “a substantial basis for believing that all or nearly all [men] lack the qualification” or (b) “it is impossible or highly impractical . . . to insure by individual testing” whether or not a male deputy has the qualification. . . .

The County asserts that the primary reason for the Sheriff’s adoption of the Policy was to protect the safety of female inmates by reducing the possibility of sexual harassment and abuse by male deputies. While . . . this is an extremely important interest, . . . the County has not shown that the Sheriff had “a substantial basis for believing that all or nearly all” male deputies were likely to engage in sexual misconduct with female inmates, nor has it shown that “it is impossible or highly impractical . . . to insure by individual testing” that a male deputy does not pose such a threat.

The statistics on sexual misconduct perpetrated by male deputies against female inmates in SFSD’s jails are deeply troubling. . . .

Nevertheless, these statistics by themselves do not prove that “all or substantially all” male deputies are likely to perpetrate sexual misconduct. . . .

[T]he County is also unable to show that . . . it is impossible or highly impractical to insure by individual testing that a male deputy does not have a propensity to perpetrate sexual misconduct. . . . As the County points out, peace officer candidates must also undergo psychological examinations.

While conceding that background checks and psychological testing are used for the purpose of screening for a propensity to perpetrate sexual misconduct, the County suggests that such screening mechanisms are inadequate because they are unable to detect all potential perpetrators. Removing every deputy with any potential for engaging in misconduct may be a laudable goal, but that goal is insufficient to justify a policy that discriminates in such broad strokes. Rather, . . . a BFOQ defense cannot be maintained if available testing offers “a practical reliable differentiation of the unqualified from the qualified applicant, [even if it is] not a perfect differentiation.” The record before us does not resolve the genuine dispute over whether the tests that are presently used or that could be used by SFSD would permit it to make a practical reliable differentiation between those who are likely to engage in sexual misconduct and those who are not.

The County also argues that employing male deputies in the female housing pods poses a threat to jail security. In so arguing, it points to two specific assertions offered by the Sheriff. First, the Sheriff expressed concern that male deputies were particularly vulnerable to manipulation by female inmates, potentially leading them to overlook conduct in violation of jail regulations, such as smuggling contraband into the jail. Second, he claimed that the consequence of male deputies’ fear of being accused of sexual misconduct could be that those deputies would be unwilling to supervise female inmates as closely as necessary, leading to an even greater risk of female inmates being able to violate jail rules.

However, the record on summary judgment is insufficient to demonstrate that there is no genuine dispute as to whether “all or substantially all” male deputies would be vulnerable to manipulation by female inmates or as to whether it would be “impossible or highly impractical” to test for whether a male deputy is manipulable. . . .

The County’s third justification for the Policy is protecting the privacy interests of female inmates. However, the record does not demonstrate that there is an actual risk of female inmates’ privacy being compromised by male deputies. SFSD has policies in place to prevent male deputies from taking on duties, such as strip searches, that might violate the privacy of female inmates. The inmates are required to remain clothed at all times, except when showering. When showering or using the toilet, inmates’ bodies are covered by a privacy screen.

The Sheriff claims that the use of privacy screens compromises jail security, but there is a genuine dispute as to whether privacy screens actually do compromise jail security where, as here, the screens remained in use even after the Policy was adopted.

The County’s final justification for the Policy is promoting the rehabilitation of female inmates. The Sheriff asserts that he was concerned that surveillance by male deputies could traumatize female inmates, particularly those who had suffered physical or sexual abuse in the past. The County introduced evidence that a disproportionately high number of female inmates had suffered such abuse. Nevertheless, there is a genuine dispute over whether excluding male deputies is a legitimate proxy for excluding deputies who would interfere with female inmates’ rehabilitation.

. . . Further, there is no evidence in the record that the individuals staffing the rehabilitative programs . . . are themselves required to be female. If female inmates were supervised by men in their rehabilitative programs while the Policy was in effect, that fact alone would defeat the County’s argument that excluding men from supervisory roles was necessary to promote female inmates’ rehabilitation. . . .

C. Conclusion

The justifications offered by the County in support of the Policy each speak to extremely important concerns. . . . 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. . . .

. . . The district court’s grant of summary judgment as to plaintiffs’ sex discrimination claims and other claims predicated thereon is REVERSED.

. . . This case is REMANDED for further proceedings on these claims.

Questions

1. What is the two-prong test to justify a BFOQ exception to Title VII’s protection against sex discrimination?
   1. Which prong did the County of San Francisco satisfy? Explain.
   2. Which prong did the County of San Francisco fail to satisfy? Explain.
2. Should Women’s Workout World, a health and exercise club, be able to lawfully decline to accept men as customers and/or employees? Decide the case. Explain. See U.S. EEOC v. Sedita, 816 F. Supp. 1291 (N.D. Ill. 1993).
3. Can the Hooters restaurant chain lawfully decline to hire men to be food servers? Scantily clad “Hooters girls” serve food and beverages to Hooters restaurant customers. Explain. See Matthew Heller, “Would-Be Hooters Guy Sues for Gender Bias,” Courthouse News Service, January 13, 2009 [www.courthousenews.com].

Page 610

“Looks” Discrimination

Harrah’s Reno, Nevada, casino instituted a “Personal Best” appearance policy requiring its female bartenders to wear makeup while prohibiting their male counterparts from wearing any. After a successful 20-year career as a Harrah’s bartender, Darlene Jespersen was fired for refusing to wear makeup under the policy.

Brenna Lewis staffed the front desks of Heartland Inn motels near Des Moines, Iowa. Her performance was excellent, earning her compliments from customers and merit raises. A new Heartland executive, Barbara Cullinan, had approved hiring Lewis for a full-time position staffing one motel’s front desk during the day, but Cullinan became dissatisfied after seeing Lewis in person. Cullinan was heard saying that Heartland staff should be “pretty,” especially those working at the front desk. Lewis was self-described as “slightly more masculine,” avoiding makeup and wearing her hair short. The Heartland front desk job description did not mention appearance, stating only that a guest service representative must create “a warm, inviting atmosphere” and perform tasks such as relaying information and receiving reservations. Over the protests of her direct manager, Lewis was eventually fired.

Both Jespersen and Lewis brought Title VII claims against their former employers.

Questions

1. What do these cases have in common? How do they differ? Explain. Decide each case.
2. Should the law recognize a separate cause of action for “looks discrimination”? Explain.

Sources: Jespersen v. Harrah’s, 444 F.3d 1104 (9th Cir. 2006); and Lewis v. Heartland Inns, 591 F.3d 1033 (8th Cir. 2010).