Jail Policy of No Male Guards in Female Dorms in San Francisco on Trial

A policy implemented in 2006 by the San Francisco Sheriff's Department (SFSD) which prohibits male deputies from working in female dorms at the county jail is set to be tested at trial, the Ninth Circuit ruled last July.

The case came to the Ninth Circuit after 35 jail guards — most of whom were female -- filed suit against the county, alleging that the policy constituted sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and the California Fair Employment and Housing Act (FEHA). Both Title VII and FEHA make it unlawful, with some exceptions, to discriminate against any individual with respect to the "terms, conditions, or privileges of employment," based on the person's sex.

The female guards claimed that the policy caused them harm because the staffing restrictions created a loss of control of overtime availability, loss of career opportunities, and a loss of preferred shifts and days off.

The Sheriff contended that the policy was necessary for four reasons, including reducing sexual misconduct by male guards, protecting the privacy of female prisoners, and sheltering the male deputies from manipulation and false accusations from the female prisoners.

The district court granted summary judgment on all issues to the SFSD, because the policy fell within the statute's "bona fide occupational qualification" (BFOQ) exception, as being female was a necessary prerequisite to working in the female dorms. While the policy was not necessarily the best means for addressing the Sheriff's concern's, his actions were not unlawful, said the district court.

The Ninth Circuit reversed, however, setting the issue for trial. While recognizing that the Sheriff was "entitled to some deference" on the same-sex policy, "discretion accorded to these individuals is not unlimited."

"Even in the unique context of prison employment, administrators seeking to justify a BFOQ must show ‘a high correlation between sex and ability to perform job functions,’" wrote the Ninth Circuit. It would be impossible to prove a BFOQ without first showing that alternative approaches are not viable, the Court ruled.

The Court concluded that because the Sheriff did not show that being female was a necessary job qualification in this case, it found there was indeed a genuine issue of material fact to be determined at trial. The judgment of the district court was therefore reversed. See: Ambat v. City & County of San Francisco, 757 F.3d 1017 (9th Cir. Cal. 2014).

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