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Breiner v. Nevada Dept. of Corrections, No. 09-15568 (9th Cir. July 8, 2010)


Following the Seventh Circuit's decision in Henry v. Milwaukee County, 539 F.3d 573 (7th Cir. 2008), the Ninth Circuit rejects a BFOQ defense for female-only lieutenants at a women's correctional facility.

Breiner v. Nevada Dept. of Corrections, No. 09-15568 (9th Cir. July 8, 2010): After a scandal involving sexual contact between private-hire guards and inmates at Southern Nevada Women's Correctional Facility (SNWCF), the state kicked out the private company operating the facility and -- responding to "intense political pressure -- restaffed the prison with 70% women guards. In addition, it was announced that the three correctional lieutenants at the prison would also be women. Four male guards who did not apply for those positions filed charges with the EEOC and eventually brought suit challenging the woman-only policy.

While the district court granted summary judgment in favor of the state, the Ninth Circuit reverses. It first decided that the plaintiff had standing to challenge the policy, on the ground that they were discouraged from applying by the express, gender-discriminatory hiring policy and that at least one of the plaintiffs would have qualified for the position. The majority then rejects the two grounds on which the district court based its dismissal.

First, the district court held that the policy affected only three of the various lieutenant positions available throughout the system, and thus imposed only a de minimis impact on the plaintiffs' promotional opportunities. The panel holds that "[t]his conclusion reflects a fundamental misunderstanding of the basic precepts of Title VII and is not supported by our case law. [¶] It is beyond dispute that the denial of a single promotion opportunity such as the one here at issue is actionable under Title VII. . . . Whether there will be other promotional opportunities for which the person may become eligible has never been a consideration."

Here, the promotion meant an increase in pay and a step towards associate warden, and one plaintiff said that a promotion within the prison would meant that he and his family would not have to move. Moreover, as a matter of law, "Title VII is offended when an individual suffers discrimination with respect to a particular adverse employment decision, even if others of the same protected group are not similarly disadvantaged."

Second, the panel rejects the BFOQ defense. In litigation, the state proffered three reasons for the policy:

"[I]t appears that NDOC administrators sought to 'reduce the number of male correctional employees being compromised by female inmates,' and that they believed the gender restriction on shift supervisors would accomplish this because (1) male correctional lieutenants are likely to condone sexual abuse by their male subordinates; (2) male correctional lieutenants are themselves likely to sexually abuse female inmates; and (3) female correctional lieutenants possess an 'instinct' that renders them less susceptible to manipulation by inmates and therefore better equipped to fill the correctional lieutenant role."

The panel finds all of these grounds insufficient. 

"The first theory fails because NDOC has not shown that 'all or nearly all' men would tolerate sexual abuse by male guards, or that it is 'impossible or highly impractical' to assess applicants individually for this qualification. As to the second theory, there is no 'basis
in fact' for believing that individual's in the correctional lieutenant role are particularly likely to
sexually abuse inmates. The third theory - and, to a significant degree, the first two - relies on the kind of unproven and invidious stereotype that Congress sought to eliminate from employment decisions when it enacted Title VII." [Citations omitted.]

In support, the panel cited the recent Henry decision, in which the city adopted a woman-only hiring policy for guards in contact with female juvenile inmates. As in that case, the panel held that the state failed to support the BFOQ defense with objective data beyond the officers' intuitions. The state also failed to show that lesser non-discriminatory measures -- such as enforcing exisitng rules more vigorously -- would not itself curb the incidence of sexual contacts and harassment:   "Where, as here, the problem is employee behavior, prison administrators have multiple resources, including background checks, prompt investigation of suspected misconduct, and severe discipline for infractions, to ensure compliance with institutional rules."

At bottom, the panel finds the assertion of the BFOQ uncomfortably close to the kinds of sex stereotypes that Title VII is meant to combat: "Disturbingly, in suggesting that all men are inherently apt to sexually abuse, or condone sexual abuse of, female inmates, NDOC relies on entirely specious gender stereotypes that have no place in a workplace governed by Title VII."

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