On July 8, 2010, the United States Court of Appeals for the Ninth Circuit held that the decision by a woman’s prison to hire women only for certain lieutenant positions constituted gender discrimination under the federal anti-discrimination in employment law, Title VII. The Nevada Department of Corrections (NDOC) hired only female correctional lieutenants at a women’s prison. The Ninth Circuit reversed the district court’s decision granting summary judgment, which had upheld NDOC’s discriminatory employment policy, concluding that the policy imposed only a “de minimis” restriction on male prison employees’ promotional opportunities and, alternatively, that the policy fell within Title VII’s exception permitting sex discrimination in jobs for which sex is a bona fide occupational qualification. The Ninth Circuit reversed as to both holdings.
The district court had granted NDOC’s motion for summary judgment, holding that the gender restriction on the three correctional lieutenant positions at SNWCF had a “de minimis” impact on the male plaintiffs’ overall promotional opportunities within NDOC, and that it was therefore unnecessary to decide whether the positions fell within Title VII’s exception for jobs in which sex is a bona fide occupational qualification. Alternatively, the district court concluded that NDOC had carried its burden of proving that gender constitutes a bona fide occupational qualification for the three correctional lieutenant posts at the prison, because the restriction was designed to meet NDOC’s goal of reversing the very real and documented problems at the prison involving male sexual conduct with female inmates.
Restricting employment opportunity on the basis of gender can be justified by the need to counter uncontrollably violent inmate behavior, but the NDOC case concerned the behavior of employees, not inmates. Precluding men from serving in supervisory positions in women’s prisons is not a substitute for effective leadership and enforcement of workplace rules. Because NDOC’s correctional lieutenant restriction denied promotional opportunities on the basis of sex and was neither de minimis nor reasonably necessary to for normal operations, it violated Title VII.