San Francisco Employer Fails to Show that Eliminating All Male Employees Was Only Way to Protect Female Inmates

prison-tower-2The 9th Circuit Court of Appeals recently reversed a trial court’s decision to throw out a lawsuit launched by several sheriff’s deputies in San Francisco, who claimed that a policy prohibiting male deputies from overseeing female prisoners was discriminatory and violated the Fair Employment and Housing Act. The appeals court rejected the ruling because the evidence was insufficient to show that being female was a bona fide occupational qualification for supervising female inmates.

The City and County of San Francisco enacted a new policy barring men from overseeing female inmates. The employer claimed that it created the policy to maintain the safety and privacy of female inmates, as well as the security of the institution. After the employer implemented the policy, several deputies sued, claiming the policy violated Title VII and FEHA. Generally, discrimination based on sex is illegal unless the employer establishes that the restriction is a bona fide occupational qualification (BFOQ), meaning that it is reasonably necessary within the context of the employer’s business to restrict employment based upon an employee’s sex.

The trial court concluded that protecting the female inmates’ safety and privacy was a valid concern and that the government sufficiently made its case that a sex-based restriction was reasonably necessary to achieve that goal. The appeals court disagreed and reversed. While it agreed that protecting the safety and privacy of inmates was a valid ground for the policy, the employer did not have enough to prove that its means (eliminating all male guards) was necessary to achieve its stated end.

The court explained that the test for deciding the validity of an employer’s BFOQ defense involves two parts. First, the job qualification giving rise to the discrimination must be reasonably necessary to achievement of the business’ objectives. Second, the employer must have significant grounds for believing that all or almost all men do not have the necessary qualifications, or that “it is impossible or highly impractical to ensure by individual testing that its employees will have the necessary qualifications for the job.”

This employer lacked the required evidence that excluding all male employees was the best or only way to achieve the protection of the female inmates. The basic premise underlying the employer’s BFOQ defense was that all or nearly all male deputies posed a risk of sexual misconduct with female inmates, but it had not proven this. The employer did not establish that less restrictive filters, such as background checks or other testing, would not adequately protect the female inmates without resorting to complete sex discrimination. As a result, the BFOQ defense did not apply.

The ruling is an important reminder that, no matter how lofty an employer’s┬ástated goals or how valid its┬áconcerns are, the BFOQ defense is a very narrow one, requiring extensive proof that restricting employees based on sex is the only way the employer can achieve its objectives.

Even with the existence of defenses like the bona fide occupational qualification, sex-based discrimination is almost never permissible under federal law or FEHA. If you’ve suffered sex discrimination in an employment setting, consult the experienced Oakland employment law attorneys at the Law Offices of Stephen M. Fuerch to help you with your case. Our employment law attorneys can help you pursue justice in your case. Contact us through our website or call our office at (925) 463-1073 to schedule your confidential initial consultation today.

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Understanding the Obligations of a Confidentiality Agreement in Your Employment Discrimination Lawsuit, Oakland Personal Injury Attorney Blog, March 14, 2014