Federal Judge Susan Illston issued an order on Thursday denying reconsideration of sheriff's deputies' motion to strike down the policy which only allows female guards to work in the women's cell block of County Jail #8. In February the judge granted the city and county's motion for summary judgment ruling that the gender based policy was a "bona fide occupational qualification" (BFOQ) so that it did not offend Title VII of the Civil Rights Act of 1968 or the California Fair Employment and Housing Act (FEHA).
Since that time the Ninth Circuit ruled in Breiner v. Nevada Department of Corrections (NDOC) that the Nevada policy of only hiring female lieutenants in a female prison block was not a BFOQ. In that case the Nevada facility was operated by the Corrections Corporation of America. After a female inmate became pregnant by a male guard, Nevada conducted a study which revealed a long pattern of sexual relationships between prisoners and guards. Nevada took over the facility and instilled the policy which requires 70% of the guards and all of the lieutenants to be women. Edward Breiner and a few others sued saying the policy offended Title VII.
Judge Illston distinguished the current case from Brenner, stating that NDOC's reaction to the situation was knee-jerk reaction based on "specious gender stereotypes" that were not proven (male supervisors were more likely to condone male officer's abuse of inmates; male lieutenants were more likely to abuse women themselves, etc.). In the current case, the policy was adapted by a continuous management group who were familiar with the facility instead of the state who ran in with little familiarity. The San Francisco policy applied to front-line guards who had direct inmate contact instead of supervisors with less contact . While the NDOC policy was framed on a single incident the San Francisco facilities have a history of documented abuse the policies are designed to remedy.
Judge Illston denied the motion for reconsideration. The case is Ambat v. City & County of San Francisco, No. C 07-03622. The opinion is below the jump.
Here is the opinion.
Mercy Ambat v. SF MFR