Ninth Circuit Allows Deputies to Proceed with Sex Discrimination Suit

Anderson v. City and County of San Francisco, No. 11-16746 (July 2, 2014): In a recent decision, the Ninth Circuit Court of Appeals held that the San Francisco Sheriff’s Department (SFSD) may have violated Title VII of the Civil Rights Act of 1964 by barring male sheriff deputies from supervising female inmates at county jails. The three-judge panel held that the SFSD had failed to prove that its discriminatory policy was justifiable under the “bona fide occupational qualification” (BFOQ) exception. The Ninth Circuit remanded the case to the trial court for further review.

In 2006, the SFSD implemented a new policy that prohibited male deputies from supervising female inmates in the housing units of county jails. According to the San Francisco sheriff, the policy was adopted to prevent sexual misconduct between male deputies and female inmates, protect the privacy of female inmates, and promote successful rehabilitation of inmates.

In 2007, a group of male and female deputies filed a lawsuit alleging that the policy constituted sex discrimination in violation of Title VII and California’s Fair Employment and Housing Act (FEHA). They claimed that the policy had caused them to lose preferred shifts and regular days off that had previously been earned by seniority, and resulted in other undesirable effects related to the conditions of their employment. SFSD argued that its policy was permissible under the BFOQ exception to Title VII and the FEHA. Although Title VII prohibits employment discrimination on the basis of sex, the statute permits discrimination where “sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of [an employer’s] particular business or enterprise.”

The trial court granted SFSD’s request to dismiss the case on the basis that the policy had been justified as a BFOQ. The deputies appealed.

The Ninth Circuit Court of Appeals disagreed with the trial court’s decision and held that SFSD had not met its burden of proving, in defense, that the policy qualified as a BFOQ exception. The court held that although the policy might have been “reasonably necessary,” SFSD had failed to show that excluding male deputies was a “legitimate proxy” for excluding only those deputies that posed a threat of committing sexual misconduct. The court also noted that although the statistics presented by SFSD “on sexual misconduct perpetrated by male deputies against female inmates in SFSD’s jails are deeply troubling…the statistics by themselves do not prove that ‘all or substantially all’ male deputies are likely to perpetrate sexual misconduct.” The court noted that SFSD had also failed to show that nondiscriminatory, alternatives approaches had been genuinely considered and determined not to have been viable.

According to Thomas M. McInerney, the managing shareholder of the San Francisco office of Ogletree Deakins: “This decision highlights the narrow interpretation courts apply when determining whether a BFOQ defense should apply. The BFOQ defense applies both under California law and federal law, and while courts routinely defer to the judgment of employers, this case shows that deference is not unlimited, and that employers will be required to justify their employment decisions based on protected classifications.”

McInerney added, “Employers also will be required to show that there were no other reasonable alternatives available to any employment decision based on employees’ gender or other protected basis.”