In 2006, the San Francisco Sheriff's Department implemented a policy prohibiting male deputies from supervising female inmates in the housing units of the County jails. Former San Francisco Sheriff Michael Hennessey adopted the policy for various reasons, but identified the protection of female inmates from sexual misconduct perpetrated by male deputies as the most important reason. For instance, between 2001 and 2009, the Department 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.
In 2007, 35 deputies, the majority of whom were female, filed suit against the County alleging that the policy constituted sex discrimination in violation of Title VII and the California Fair Employment and Housing Act (FEHA). They claimed that the staffing restrictions harmed the conditions of their employment. For instance, the restrictions deprived them of opportunities to develop career-enhancing experience, and resulted in loss of preferred shifts and loss of control over overtime opportunities. The district court granted the County's motion for summary judgment, finding that the discrimination resulting from the policy was permissible because sex was a "bona fide occupational qualification" (BFOQ) for the staff positions at issue. The deputies appealed, and the Court of Appeals for the Ninth Circuit reversed and remanded.
Under the BFOQ defense, an employer may engage in sex discrimination where sex is a genuine job qualification reasonably necessary to the normal operation of the employer's business. For instance, a movie producer does not have to audition men for a female role. However, courts interpret the defense narrowly. In addition to showing that the job qualification justifying discrimination is reasonably necessary to the essence of the employer's business, the employer must also show that it has a substantial basis for believing that all or nearly all men (or all women) lack the qualification or that it is impossible or highly impractical to ensure by individual testing that its employees will have the necessary qualifications for the job. The employer must show a high correlation between sex and the ability to perform the job functions.
The district court gave considerable deference to the judgment of the Sheriff, who asserted that the policy was necessary to protect the safety and privacy of the female inmates. Though the Ninth Circuit recognized that the Sheriff's decision is entitled to deference, it also stated that the Department must introduce evidence that the Sheriff's judgment is the product of a reasoned decision-making process, based on available information and experience. The Court determined that there were genuine issues of material fact as to whether a reasoned process led to the Sheriff's adoption of the policy. For example, the Department did not conduct any internal surveys or studies to determine the extent of sexual misconduct. Nor did the Sheriff consult outside sources who may have considered similar policies. The Ninth Circuit clarified that the decision-making process need not take any particular form, but held the Sheriff's efforts in this case contrasted sharply with the efforts undertaken by other officials implementing similar policies under BFOQ grounds. Accordingly, a trier of fact could conclude that that the Sheriff's decision was not preceded by a decision-making process that was sufficiently reasoned.
The Court of Appeals also evaluated the County's rationales for adopting the policy. The Sheriff's primary reason for adopting the policy was to protect the female inmates by reducing the possibility of sexual harassment and abuse by the male deputies. However, the County failed to show 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. It also failed to show that it was impossible or highly impractical to use individual testing to determine whether a male deputy posed a threat.
The Court similarly rejected the County's other rationales. While the County argued that male deputies in the female housing pods posed a threat to jail security, there was insufficient evidence on the record to reach such a conclusion. There are genuine disputes of material fact as to whether all or substantially male deputies would be vulnerable to manipulation by female inmates or whether it would be impossible or highly impractical to test whether a male deputy is manipulable. The County did not produce any evidence supporting this conclusion. It also failed to present evidence that the presence of male deputies poses a risk to the privacy of female inmates or interferes with female inmates' rehabilitation.
The BFOQ defense is fairly rare and very narrowly drawn exception to antidiscrimination laws. An agency that has a policy, or is considering adopting a policy, that prevents one sex from performing certain jobs or jobs functions should tread carefully. With very few exceptions, such policies would be unlawful. In the context of public employment, positions in correctional facilities, such as the facility at issue in this case, have been the subject of several BFOQ defenses. As this case makes clear, a Department that implements any sex-based qualification will have to demonstrate that the decision is well-reasoned and supported by statistics, studies or surveys.
Ambat v. City and County of San Francisco (9th Cir. 2014) ___ F.3d ____ [2014 WL 2959634].