Everson v. Mich. Dep't of Corr. - 391 F.3d 737 (6th Cir. 2004)

Rule:

It is impermissible under Title VII of the Civil Rights Act of 1964 to refuse to hire an individual woman or man on the basis of stereotyped characterizations of the sexes, and an employer must have a basis in fact for its belief that gender discrimination is reasonably necessary - not merely reasonable or convenient - to the normal operation of its business. An employer can meet that requirement by showing that all or substantially all members of one gender would be unable to perform safely and efficiently the duties of the job involved, that it is impossible or highly impractical to determine on an individualized basis the fitness for employment of members of one gender, or that the very womanhood or very manhood of the employee undermines his capacity to perform a job satisfactorily.

Facts:

Following separate lawsuits by female prisoners in Michigan and by the Civil Rights Division of the United States Department of Justice, both of which alleged rampant sexual abuse of female prisoners in Michigan, the Michigan Department of Corrections (the "MDOC") barred males from working in certain positions at its female prisons. Specifically, the MDOC designated approximately 250 Correctional Officer ("CO") and Residential Unit Officer ("RUO") positions in housing units at female prisons as "female only." A group of MDOC employees, both males and females, sued the MDOC, alleging that the MDOC's plan violated Title VII of the Civil Rights Act of 1964, and Michigan's Elliott-Larsen Civil Rights Act. Following a bench trial, the district court ruled in the plaintiffs' favor, concluding, among other things, that gender was not a bona fide occupational qualification (a "BFOQ") for the positions in question. 

Issue:

Did the district court err in finding that the female gender is not a BFOQ for the positions of CO and RUO in the housing units at MDOC's female facilities?

Answer:

Yes.

Conclusion:

In reaching the conclusion that the female gender is a BFOQ for the CO and RUO positions in this case, the court is aided by a series of cases that directly address the issue of gender as a BFOQ for corrections officers in female correctional facilities. These decisions teach that the reasoned decisions of prison officials are entitled to deference and that the goals of security, safety, privacy, and rehabilitation can justify gender-based assignments in female correctional facilities. Because of the unusual responsibilities entrusted to them, the redoubtable challenges they face, and the unique resources they possess, the decisions of prison administrators are entitled to a degree of deference, even in the Title VII context. As the Seventh Circuit, sitting en banc, observed, prison officials “must grapple with the "perplexing sociological problems of how best to achieve the goals of the penal function in the criminal justice system: to punish justly, to deter future crime, and to return imprisoned persons to society with an improved chance of being useful, law-abiding citizens.” To meet this daunting task, the court continued, "prison administrators always have been expected to innovate and experiment. Unless prison administrators try new approaches, the 'intractable problems' will remain and the lot of the incarcerated individual will not improve. Indeed, it probably will deteriorate." Thus, the court concluded that, although the decisions of prison officials are not accorded as much deference in Title VII cases as they are in constitutional cases, "their judgments still are entitled to substantial weight when they are the product of a reasoned decision-making process, based on available information and experience." 

Though it did not exhaust its institutional resources, the MDOC made a considered decision that a BFOQ was necessary to address the grave problem of sexual abuse of female inmates. When Martin assumed the position of Director, the MDOC faced a pair of high-profile lawsuits and a chorus of public criticism charging that it had ignored, or covered up, widespread sexual abuse of its female inmates--a situation calling for prompt and decisive action. In the USA agreement, the MDOC agreed to study the feasibility of increasing the presence of female officers in the housing units, and, in the Nunn agreement, the MDOC agreed to make a good faith effort to limit the assignment of staff in housing units to female officers. The Securicor study, undertaken pursuant to the USA agreement, recommended that the MDOC "explore the re-deployment of all available female corrections officers . . . to housing units." Mahoney's report, which Martin commissioned prior to the MDOC's application for selective certification, recommended that only women be assigned to the CO and RUO positions in the housing, segregation, and intake units because, in Mahoney's opinion, only this action could ensure safe and humane conditions of confinement and the professional operation of the MDOC's facilities. Additionally, Martin testified that he consulted with his staff about the plan prior to seeking selective certification and discussed privacy accommodations for female inmates with prison officials from other states. Finally, the MDOC assembled an array of materials in support of its application for selective certification, and the MDCS approved the application. Clearly, the MDOC's plan was "the product of a reasoned decision-making process," and not simply the result of Martin's whim.

Application of the correct legal standard, which mandates that we give due regard to the professional judgment of the MDOC, makes it clear that the female gender is a BFOQ for the CO and RUO positions in the housing units at female prisons in Michigan. Viewed in proper perspective, the exclusion of males from these positions is "reasonably necessary" to "the normal operation" of the MDOC's female facilities. The MDOC reasonably concluded that a BFOQ would materially advance a constellation of interests related to the "essence" of the MDOC's business--the security of the prison, the safety of inmates, and the protection of the privacy rights of inmates--and reasonable alternatives to the plan have not been identified. Unquestionably, the security of the prisons relates to the essence of the MDOC's business, and the MDOC maintains that the presence of male COs and RUOs in female housing units imperils security in a number of ways. First, the presence of males in the housing units necessitates the use of "artificial barriers to security" such as covers for cell windows, doors on the toilet stalls, shower curtains, the moratorium on pat-down searches by male officers, and the "knock and announce" policy. Second, allegations of sexual abuse, whether true or not, create a "poisoned atmosphere" that breeds misconduct on the part of inmates and guards. Third, many male officers, afraid of false accusations of sexual abuse, become "gun-shy" and fail to monitor and discipline inmates in a proactive fashion.