The Ninth Circuit Court of Appeals invalidated a Nevada prison policy barring male employees from holding certain supervisory positions at a women’s prison. Circuit Judge Marsha S. Berzon delivered the opinion, holding that the ban violated Title VII of the Civil Rights Act of 1964.

The Southern Nevada Women’s Correctional Facility (SNWCF) was operated by Corrections Corporation of America (CCA) when a male guard impregnated a female prisoner in September 2003. The prisoner claimed “that her relationship with the guard stemmed from CCA’s refusal to provide the psychotropic medications she had long been prescribed to treat her schizophrenia.”

Nevada Department of Corrections (NDOC) Director Jackie Crawford ordered the state’s Inspector General (IG) to investigate. The IG interviewed approximately 200 prisoners, and “nearly all the inmates reported receiving substandard medical treatment.” The IG found “that SNWCF had become an ‘uninhibited sexual environment.’” He noted “frequent instances of inappropriate staff/inmate interaction,” “flirtatious activities between staff and inmates,” and “widespread knowledge” of “long term inmate/inmate sexual relationships.” Staff routinely smuggled contraband like alcohol, narcotics, cosmetics and jewelry into the facility in exchange for sex, according to the IG. The prisoners’ “sexual behavior – which they freely admitted was designed to ‘compromise staff and enhance inmate privileges’ was ... ‘predictable’” and due to “a lack of effective supervisory management oversight and control,” the IG found.

The IG’s report “ignited ‘very high profile’ media coverage and forced CCA to terminate its contract to operate SNWCF. The NDOC “faced intense political pressure to ‘mitigate the number of newspaper articles’ and to ‘assure the State of Nevada that we would not be embarrassed like this again,’” according to Crawford. In response, Crawford restaffed the facility to ensure that 70% of the line staff were women. She also hired only women for SNWCF’s three correctional lieutenant positions. The lieutenants, who served as shift supervisors, answered to wardens and assistant wardens. They were the most senior employees on duty 75% of the time.

“Although the correctional lieutenant posting specified that ‘only female applicants will be accepted for these positions,’ several males applied for the positions, which were eventually filled by three women.” Four male NDOC employees who did not apply for the SNWCF lieutenant positions filed Equal Employment Opportunity Commission (EEOC) complaints, then brought a sex discrimination suit under Title VII. The district court granted summary judgment to the NDOC.

On appeal, NDOC officials conceded that the refusal to consider men for the positions was facially discriminatory. They claimed, however, that over the course of four years, 29 of 37 NDOC correctional lieutenant positions were filled by men and, therefore, “the concededly discriminating policy of excluding men from the SNWCF ... positions had only a de minimis impact ... and did not violate Title VII.” The appellate court rejected that argument, however, because it represented “a fundamental misunderstanding of the basic precepts of Title VII....”

The Court of Appeals determined that the NDOC’s refusal to hire men for the correctional lieutenant positions violated Title VII because the NDOC could not satisfy its burden of demonstrating that gender was a “bona fide occupational qualification” for the positions.
The Ninth Circuit observed that “NDOC administrators sought to ‘reduce the number of male correctional employees being compromised by female inmates.’ And that they believed the gender restriction ... 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 appellate court found, however, that the NDOC failed to prove any of those baseless theories. “The third theory – and, to a significant degree, the first two – relies on the kind of unproven invidious stereotype that Congress sought to eliminate from employment decisions when it enacted Title VII.”

“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,” wrote the Court of Appeals.
“NDOC’s third theory, that women are ‘maternal,’ ‘patient,’ and understand other women fails for the same reason. To credit NDOC’s unsupported generalization that women ‘have an instinct and innate ability to discern ... what’s real and what isn’t’ and so are immune to manipulation by female inmates would violate ‘the Congressional purpose to eliminate subjective assumptions and stereotyped conceptions regarding the ... ability of women to do particular work.’”

“Precluding men from serving in supervisory positions in women’s prisons is not a substitute for effective leadership and enforcement of workplace rules,” the Ninth Circuit concluded. Accordingly, the gender-based hiring policy for lieutenant positions at SNWCF violated Title VII.

According to Howard Skolnik, who was appointed director of the NDOC in February 2007, the discriminatory hiring policy at SNWCF no longer exists. “We have male lieutenants at that facility,” he said. “It’s been like that since I’ve been director.” See: Breiner v. Nevada DOC, 610 F.3d 1202 (9th Cir. 2010).

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