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Court Rejects Use of Gender Stereotypes and Rules that Ban on Male Supervisors at Women’s Prison Violates Title VII
While the concept of male prison guards in an all-female correctional institution might sound odd, it happens. And it is illegal for the state to bar men from serving in that capacity. In fact, the Ninth Circuit struck down a gender ban in Breiner v. Nevada Department of Corrections when it held that the state of Nevada violated Title VII when it barred to bar men from serving in a supervisory capacity at an all-female prison.
The use of gender as a “BFOQ” (bond fide occupational qualification) is permitted only in very rare situations where there is a specific need and the evidence clearly establishes the appropriateness of such a rule. For example (and this was one of the situations cited by the court), it may be permissible to ban male guards from working in or near the women’s shower area. By the same token, if there was a serious violence problem, a gender restriction might be deemed reasonably necessary. But to simply ban men from all supervisory positions was wrong said the court. Judge Marsha S. Berzon, who authoried the ruling, condemned the use of gender stereotypes in employment:
“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. 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 an 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 traditional stereotyped conceptions regarding the . . . ability of women to do particular work.” Rosenfeld v. S. Pac. Co., 444 F.2d 1219, 1225 (9th Cir. 1971); see also Diaz, 442 F.2d at 386 (rejecting an airline’s contention that “the special psychological needs of its passengers . . . are better attended to by females”). “The harmful effects of occupational cliches,” Gerdom v. Continental Airlines, 692 F.2d 602, 607 (9th Cir. 1982), are felt no less strongly when invoked as a basis for one gender’s unique suitability for a particular job than when relied on to exclude members of that sex from employment. Simply put, “we are beyond the day when an employer could . . . insist[ ] that [employees] matched the stereotype associated with their group.” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).”
A copy of the opinion is attached, and it is worth reading for anyone involved in a case where there is a gender restriction on employment opportunities.
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