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Ninth Circuit: No Summary Judgment on Male Guard Supervision of Female Prisoners Ban

Ninth Circuit: No Summary Judgment on Male Guard Supervision of Female Prisoners Ban

by Mark Wilson

The Ninth Circuit Court of Appeals held on July 2, 2014 that a claim that a jail policy banning male guards from supervising female prisoners violates Title VII’s prohibition against sex discrimination could not be resolved on summary judgment.

Between 2001 and 2009, the San Francisco Sheriff’s Department (SFSD) investigated twelve complaints against male guards accused of sexually abusing female prisoners. The claims were substantiated in two cases and three other guards resigned. Several prisoners also sued the SFSD for sexual misconduct by guards between 2000 and 2005.

In October 2006, then-Sheriff Michael Hennessey responded to these incidents by implementing a policy prohibiting male guards from supervising female prisoners.

The following year, 35 guards, mostly female, filed suit in federal court alleging that the policy constituted sex discrimination under Title VII and state law. The plaintiffs alleged that the policy harmed them by depriving them of control over when overtime was available or required, opportunities to develop career-enhancing experience, and preferred shifts and regular days off previously earned by seniority.

The district court granted summary judgment to the county, holding that while the policy was discriminatory it was also permissible under the “bona fide occupational qualification” (BFOQ) exception of 42 U.S.C. § 2000e-2(e)(1).

Soon after the district court’s summary judgment order, the Ninth Circuit held that a similar policy violated Title VII in Breiner v. Nevada Dept. of Corr., 610 F.3d 1202 (9th Cir. 2010) [PLN, Nov. 2011, p.22]. The plaintiffs moved for reconsideration in light of Breiner; their motion was denied, however, after the district court concluded that Breiner was factually distinguishable.

The Ninth Circuit reversed, finding first that while the facts of the two cases were not identical, “Breiner controls our decision here and provides the correct analytic framework for evaluating the County’s motion for summary judgment.”

The appellate court wrote that while “[t]he statistics on sexual misconduct perpetrated by male deputies against female inmates in SFSD’s jails are deeply troubling,” the county “was not entitled to summary judgment because it was unable to bear its burden of demonstrating that there was no genuine issue of material fact as to whether it was entitled to a BFOQ defense.” Issues of material fact existed as to whether excluding male guards due to their gender was a legitimate substitute for excluding them because they were actually unfit to supervise female prisoners. The Court of Appeals also upheld $8,925 in attorney fees awarded to three plaintiffs in the case who had settled retaliation claims. See: Ambat v. City and County of San Francisco, 757 F.3d 1017 (9th Cir. 2014).

Following remand, on December 2, 2014 the district court denied the plaintiffs’ renewed motion for summary judgment, finding that “the issue of whether sex is a legitimate proxy for reasonably necessary job qualifications” for BFOQ purposes was not suitable for determination on summary judgment due to issues of fact in dispute. The case remains pending. See: Ambat v. City and County of San Francisco, 2014 U.S. Dist. LEXIS 166993 (N.D. Cal. 2014).


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Related legal cases

Ambat v. City and County of San Francisco

Ambat v. City and County of San Francisco

Breiner v. Nevada Dept. of Corr.