Breiner v. Nevada Department of Corrections

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD C. BREINER; LOREN 

CHAPULIN; JIMMIE MCNEAL; RANDY

STOUT, No. 09-15568

Plaintiffs-Appellants, D.C. No.

v.  2:05-CV-01412-

NEVADA DEPARTMENT OF KJD-RJJ

CORRECTIONS; STATE OF NEVADA; OPINION

GLEN WHORTON; JACKIE CRAWFORD,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

Kent J. Dawson, District Judge, Presiding

Argued and Submitted

February 11, 2010—San Francisco, California

Filed July 8, 2010

Before: John T. Noonan, Marsha S. Berzon and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Berzon

9671

BREINER v. NEVADA DEP’T OF CORRECTIONS 9675

COUNSEL

John B. Marcin, Las Vegas, Nevada, for the plaintiffs-

appellants.

Roger R. Madsen, Deputy Attorney General, Catherine Cortez

Masto, Attorney General, Las Vegas, Nevada, for the

defendants-appellees.

OPINION

BERZON, Circuit Judge:

The Nevada Department of Corrections (NDOC) hires only

female correctional lieutenants at a women’s prison. The dis-

trict court granted summary judgment upholding 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 falls within Title VII’s exception permitting sex

discrimination in jobs for which sex is a bona fide occupa-

tional qualification, 42 U.S.C. § 2000e-2(e)(1). We reverse as

to both holdings.

FACTUAL & PROCEDURAL BACKGROUND

In September 2003, NDOC’s Inspector General learned that

a female inmate at the Southern Nevada Women’s Correc-

9676 BREINER v. NEVADA DEP’T OF CORRECTIONS

tional Facility (SNWCF) had been impregnated by a male

guard. At the time, SNWCF was operated by a private com-

pany, Corrections Corporation of America (CCA). The preg-

nant inmate alleged that her relationship with the guard

stemmed from CCA’s refusal to provide the psychotropic

medications she had long been prescribed to treat her schizo-

phrenia. NDOC Director Jackie Crawford acknowledged that

her office had received a number of complaints concerning

medical issues at SNWCF. At Crawford’s direction, the

Inspector General interviewed approximately 200 inmates

about “their personal experiences with the medical function at

[SNWCF].” Nearly all the inmates reported receiving substan-

dard medical treatment.

In the course of the investigation, the Inspector General

also discovered that SNWCF had become “an uninhibited

sexual environment.” He noted “frequent instances of inap-

propriate staff/inmate interaction,” “flirtatious activities

between staff and inmates,” and “widespread knowledge” of

“long-term inmate/inmate sexual relationships.” In exchange

for sex, prison staff “routinely introduce[d] . . . contraband

into the institution, including alcohol, narcotics, cosmetics,

[and] jewelry.” The inmates’ sexual behavior—which they

freely admitted was designed to “compromise staff and

enhance inmate privileges”—was, in the Inspector General’s

view, “predictable.” The Inspector General attributed the

guards’ misconduct to “a lack of effective supervisory man-

agement oversight and control. . . . There is no evidence that

supervisors or managers recognize this risky behavior or do

anything to stop it.” To address this “leadership void,” the

Inspector General recommended that “line supervisors

undergo leadership training” and that “subordinate staff

undergo re-training with emphasis on inmate con games and

ethical behavior.”

In the wake of the Inspector General’s report, which ignited

“very high profile” media coverage, CCA announced that it

was terminating its contract to operate SNWCF. NDOC

BREINER v. NEVADA DEP’T OF CORRECTIONS 9677

resumed control of the facility and, according to Crawford,

faced intense political pressure to “mitigate the number of

newspaper articles” and to “assure the State of Nevada that

we would not be embarrassed like this again.” To achieve this

goal, Crawford decided to restaff the facility so that seventy

percent of the front line staff at SNWCF would be women.

Crawford also decided to hire only women in SNWCF’s

three correctional lieutenant positions. The correctional lieu-

tenants are shift supervisors and are the senior employees on

duty seventy-five percent of the time. Correctional lieutenants

report to wardens or deputy wardens and are responsible for

supervising the prison’s day-to-day operations, including

directing the work of subordinate staff, inspecting the facility

and reporting infractions, and monitoring inmates’ activities

and movement through the facility. There is one correctional

lieutenant assigned to SWNCF per shift. Although the correc-

tional lieutenant posting specified that “only female appli-

cants will be accepted for these positions,” several males

applied for the positions, which were eventually filled by

three women.

Edward Breiner, Loren Chapulin, Jimmie McNeal and

Randy Stout, the present plaintiffs, all male Nevada correc-

tional officers, were not among the men who applied for the

SNWCF correctional lieutenant positions. They nonetheless

filed charges with the Equal Employment Opportunity Com-

mission, received notice of their right to sue, and filed suit

alleging that the state’s decision to limit the correctional lieu-

tenant positions to women violated Title VII’s prohibition on

sex discrimination in employment.1

The district court granted NDOC’s motion for summary

judgment, holding that the gender restriction on the three cor-

1

The only claim before us is a Title VII claim against NDOC with

regard to the correctional lieutenant positions. The seventy-percent-female

restriction on front line guards is not at issue in this litigation.

9678 BREINER v. NEVADA DEP’T OF CORRECTIONS

rectional lieutenant positions at SNWCF had a “de minimis”

impact on the 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

(BFOQ), 42 U.S.C. § 2000e-2(e)(1). Alternatively, the district

court concluded that NDOC had carried its burden of proving

that “gender constitutes a BFOQ for the three correctional

lieutenant posts at SNWCF,” because the restriction was

designed to meet “NDOC’s goal of reversing the very real and

documented problems at SNWCF.”2 This timely appeal fol-

lowed.

STANDING

NDOC argues for the first time on appeal that because the

plaintiffs did not apply for the NDOC positions and would not

have been selected anyway for reasons other than their sex,

they lack standing to pursue their Title VII claim. As standing

is a jurisdictional requirement, we must consider NDOC’s

argument before reaching the merits of the plaintiffs’ Title

VII claim. See Pritikin v. Dep’t of Energy, 254 F.3d 791, 796

(9th Cir. 2001). We review the plaintiffs’ standing de novo,

Mayfield v. United States, 599 F.3d 964, 970 (9th Cir. 2010),

and conclude that Stout, at least, has standing, as we now

explain.

[1] To have standing in this case, a plaintiff must demon-

strate a “concrete and particularized” injury, “fairly traceable”

to NDOC’s discriminatory policy, and “likely” to be “re-

dressed by a favorable decision” of this court. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal

quotation marks, brackets and ellipses omitted). That the

2

The district court denied without analysis several evidentiary objec-

tions raised by the plaintiffs. As we reverse the grant of summary judg-

ment on other grounds, we do not reach the plaintiffs’ contention that the

rejection of their objections was error.

BREINER v. NEVADA DEP’T OF CORRECTIONS 9679

plaintiffs did not apply for the correctional lieutenant posi-

tions does not preclude them from establishing such an injury.

A nonapplicant suffers “an invasion of a legally protected

interest,” id. at 560, under Title VII if “he would have applied

for the job had it not been for [the employer’s discriminatory]

practices.” Int’l Bhd. of Teamsters v. United States, 431 U.S.

324, 368 (1977). To prevail on the merits as nonapplicants,

the plaintiffs must show that they were “discouraged from

applying” rather than that they “simply failed to do so.” Yartz-

off v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987); see also

Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 761-62 (9th

Cir. 1980).

[2] Stout had previously applied for correctional lieutenant

positions. He declared under oath that he was deterred from

applying for the SNWCF positions “by [his] knowledge that

[his] application would be futile because of the defendant’s

discriminatory policy.” This evidence is sufficient on sum-

mary judgment to establish Stout’s standing under the case

law applicable to nonapplicants.

NDOC contends that, whether or not the gender restrictions

discouraged the plaintiffs from applying, none of them would

have qualified for the SNWCF positions even if they had been

open to applicants of both sexes. Applicants for the SNWCF

correctional lieutenant positions were required to possess one

year of experience as a correctional sergeant (the rank below

correctional lieutenant) in the state of Nevada, or “an equiva-

lent combination of education and experience.” Stout had

been a correctional sergeant since 1998. NDOC’s own per-

sonnel analyst affirmed that Stout “would have qualified for

a correctional lieutenant position with NDOC in 2004.”

NDOC’s assertion that Stout was ineligible for the SNWCF

positions because “he had expired from the Correctional Lieu-

tenant certification list” is not supported by the record. The

posting for the correctional lieutenant positions specified that

applicants must possess a driver’s license, pass a drug test,

9680 BREINER v. NEVADA DEP’T OF CORRECTIONS

and satisfy Nevada’s “P.O.S.T. requirements” (police officer

standard training),3 but contained no reference to a “certifica-

tion list.” Indeed, Crawford stated that “people who had

applied [for the correctional lieutenant positions] had to go

back up through personnel to make sure they met those quali-

fications . . . for the lieutenant. And, then, I get a certified list

. . . that means State Personnel has screened and has certified

a list that we, then, have to work from.” This statement makes

clear that a list was created of all qualified applicants; inclu-

sion on the list was not a preapplication job requirement.

Moreover, even if such a preapplication list existed, there is

no basis for concluding that Stout could not have renewed his

eligibility in time to apply for the positions had he not been

dissuaded from doing so by the female-only restriction.

[3] In sum, we conclude that besides the female-only

restriction, “there was no other qualification standard that pre-

vented [Stout] from applying for the job. He accordingly sat-

isfies the injury, causation, and redressability prongs of Lujan,

and therefore has standing.” Bates v. UPS, Inc., 511 F.3d 974,

988 (9th Cir. 2007) (en banc). As Stout, at least, has standing

to pursue this appeal, we need not determine whether

Chapulin and McNeal have standing to seek relief under Title

VII. See id. at 985.

TITLE VII CLAIM

[4] It is unlawful, with narrow exceptions, “to fail or refuse

to hire . . . any individual, or otherwise to discriminate against

any individual with respect to his compensation, terms, condi-

tions, or privileges of employment, because of such individu-

al’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Failure to promote

is actionable under Title VII. See, e.g., McGinest v. GTE Serv.

Corp., 360 F.3d 1103, 1121-22 (9th Cir. 2004). NDOC con-

3

NDOC does not argue that these requirements would prevent Stout

from qualifying for the positions.

BREINER v. NEVADA DEP’T OF CORRECTIONS 9681

cedes that its refusal to consider men for the correctional lieu-

tenant positions at SNWCF is facially discriminatory.

The district court granted summary judgment to NDOC on

two alternative grounds. First, the district court concluded that

NDOC’s refusal to hire male correctional lieutenants at

SNWCF had a negligible impact on the plaintiffs’ promo-

tional opportunities in light of the correctional lieutenant posi-

tions available statewide to employees of both sexes. The

district court held that this “de minimis” discrimination was

not actionable under Title VII. Second, the district court held

that, even if actionable, the gender restriction on correctional

lieutenant positions at SNWCF fell within Title VII’s BFOQ

exception for “those certain instances where . . . sex . . . is a

bona fide occupational qualification reasonably necessary to

the normal operation of [a] particular business or enterprise.”

42 U.S.C. § 2000e-2(e)(1). We review the grant of summary

judgment de novo, McDonald v. Sun Oil Co., 548 F.3d 774,

778 (9th Cir. 2008), and reverse as to both grounds.

A. The “De Minimis” Theory

NDOC asserts that the three SNWCF positions were the

only correctional lieutenant promotions in the NDOC system

as a whole restricted to women applicants and that twenty-

nine out of thirty-seven correctional lieutenant positions filled

over a four year period went to men. Relying on these statis-

tics, NDOC maintains that the concededly discriminatory pol-

icy of excluding men from the SNWCF correctional

lieutenant positions had only a “de minimis” impact on the

plaintiffs and so did not violate Title VII with regard to them.

This conclusion reflects a fundamental misunderstanding of

the basic precepts of Title VII and is not supported by our

case law.

[5] It is beyond dispute that the denial of a single promo-

tion opportunity such as the one here at issue is actionable

under Title VII. See Ricci v. DeStefano, 129 S. Ct. 2658, 2671

9682 BREINER v. NEVADA DEP’T OF CORRECTIONS

(2009) (finding for plaintiffs who “were denied a chance at

promotions”); Alvarado v. Tex. Rangers, 492 F.3d 605, 612

(5th Cir. 2007) (“It is . . . well established . . . that the denial

of a promotion is an actionable adverse employment action.”)

(emphasis omitted); McGinest, 360 F.3d 1121-22. Whether

there will be other promotional opportunities for which the

person may become eligible has never been a consideration.

Here, for example, the correctional lieutenant position pays

more than the correctional sergeant job. It is also a prerequi-

site for the more senior, more responsible, and higher paying

position of associate warden. That another opportunity may

later arise for which the applicant is eligible does not negate

the injury of being denied an earlier position on the basis of

one’s sex, with the resulting loss of pay for a period and

delayed eligibility for another promotion.

[6] Stout, for instance, was later promoted to correctional

lieutenant, but had he been promoted to a SNWCF position,

he would have earned more during the period before his even-

tual promotion and would have become eligible for promotion

to an associate warden position two years earlier than he did.

Moreover, correctional lieutenant jobs in Nevada prisons are

not fungible from the point of view of employees, as illus-

trated by Stout’s declaration that the SNWCF positions were

desirable to him because the facility’s location “would not

have required selling my house and causing my wife to quit

her job to relocate.” As Stout’s example demonstrates, an

employee who is denied a promotion on the basis of sex but

later promoted has not been “restor[ed] to the position in

which [he] would have been absent the discrimination.”

EEOC v. Hacienda Hotel, 881 F.2d 1504, 1518 (9th Cir.

1989), overruled on other grounds by Burlington Indus., Inc.

v. Ellerth, 524 U.S. 742 (1988).

[7] Further, Title VII is offended when an individual suf-

fers discrimination with respect to a particular adverse

employment decision, even if others of the same protected

BREINER v. NEVADA DEP’T OF CORRECTIONS 9683

group are not similarly disadvantaged. See Furnco Constr.

Corp. v. Waters, 438 U.S. 567, 579 (1978) (“A racially bal-

anced work force cannot immunize an employer from liability

for specific acts of discrimination.”). The fact that on average

men are more likely than women to be hired into correctional

lieutenant positions might have some relevance if NDOC dis-

puted the discriminatory nature of the policy. See Reeves v.

Sanderson Plumbing Prods., 530 U.S. 133, 153 (2000) (hold-

ing that the existence of many similarly situated employees

over age 50 was “relevant, [but] certainly not dispositive” of

the employer’s lack of intent to discriminate against the plain-

tiff on the basis of age). It has no bearing, however, on the

question whether a man denied a specific promotional oppor-

tunity expressly on the basis of his sex can establish a Title

VII violation. “[T]he obligation imposed by Title VII is to

provide an equal opportunity for each applicant regardless of

[sex], without regard to whether members of the applicant’s

[sex] are already proportionately represented in the work

force.” Furnco, 438 U.S. at 579. Put another way, Title VII

protects the ability to pursue one’s own career goals without

being discriminated against on the basis of race or sex, even

if others of the same race or sex were not subject to disadvan-

tage.

In holding otherwise, the district court relied on Robino v.

Iranon, 145 F.3d 1109 (9th Cir. 1998) (per curiam). Robino,

however, is inapposite. The policy at issue in Robino

restricted job responsibilities, not employment or promotional

opportunities. Id. at 1110. Robino does not suggest—nor

could it, for the reasons we have discussed—that a refusal to

hire an individual because of sex can be considered “de

minimis” because others of the same sex were hired.

Specifically, Robino concerned prison officials’ decision to

assign only female guards to six “posts” in a women’s prison

—those from which the guard could observe inmates in the

shower—to “accommodate the privacy interests of the female

inmates and reduce the risk of sexual conduct between

9684 BREINER v. NEVADA DEP’T OF CORRECTIONS

[guards] and inmates.”4 Id. The plaintiffs in Robino were cur-

rent male guards complaining that female guards—individuals

holding the same position—were to a limited degree given

different job assignments within the same job category. It was

in this context that Robino held that the post-restriction policy

“limits eligibility for such a small number of positions (six

out of forty-one) that it imposes such a de minim[i]s restric-

tion on the male [guards’] employment opportunities.” Id.

Thus, the restriction in Robino was “de minimis” not, as the

district court thought, because a small proportion of positions

were affected, but because “male [guards had] not suffered

any tangible job detriment beyond a reduced ability to select

their preferred watches.” Id.; see also Jordan v. Gardner, 986

F.2d 1521, 1527 (9th Cir. 1993) (“The conflict between the

right of [male guards] not to be discriminated against in job

opportunities and [female inmates] to maintain some level of

privacy has normally been resolved . . . through adjustments

in scheduling and job responsibilities for the guards.” (quota-

tions and citation omitted)); Tharp v. Iowa Dep’t of Corr., 68

F.3d 223, 226 (8th Cir. 1995) (approving a policy that

restricted four out of sixteen shifts to women); Hardin v.

Stynchcomb, 691 F.2d 1364, 1373 (11th Cir. 1982) (“Since

the majority of . . . positions in the male section of the jail do

not require . . . observation of inmates’ use of shower or toilet

facilities, . . . modification of the system of rotating . . .

assignments will avoid the clash between privacy rights and

equal employment opportunities.”).

[8] Robino’s premise, then, was necessarily that a minor

impact on job assignments was too minimal to be actionable.

4

Although the opinion is not pellucid on this point, the briefs in Robino

make clear that a “post” is an assignment to a particular geographic loca-

tion. Not all of the twenty-one “posts” were staffed on all shifts (or

“watches”). A total of forty-one posts were staffed in a twenty-four hour

period. See Brief of Defendant-Appellee at 6, Robino, 145 F.3d 1109 (No.

97-16470).

BREINER v. NEVADA DEP’T OF CORRECTIONS 9685

This very limited concept has no application to NDOC’s pol-

icy. An employer’s “fail[ure] or refus[al] to hire” on the basis

of sex is, without limitation, actionable under Title VII. 42

U.S.C. § 2000e-2(a)(1). NDOC’s refusal to hire men in the

correctional lieutenant positions therefore violates Title VII

unless NDOC can demonstrate that gender is a BFOQ for the

positions. NDOC cannot meet that burden, as we now explain.

B. Gender as a Bona Fide Occupational Qualification

[9] Title VII’s BFOQ exception provides:

[I]t shall not be an unlawful employment practice for

an employer to hire and employ employees . . . on

the basis of [ ] religion, sex, or national origin in

those certain instances where religion, sex, or

national origin is a bona fide occupational qualifica-

tion reasonably necessary to the normal operation of

that particular business or enterprise.

42 U.S.C. § 2000e-2(e)(1). As its language indicates, see Int’l

Union, UAW v. Johnson Controls, 499 U.S. 187, 201 (1991),

the BFOQ is an “extremely narrow exception to the general

prohibition of discrimination on the basis of sex” that may be

invoked “only when the essence of the business operation

would be undermined” by hiring individuals of both sexes.

Dothard v. Rawlinson, 433 U.S. 321, 333-34 (1977) (citing

Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th

Cir. 1971)). To justify discrimination under the BFOQ excep-

tion, an employer must

prove by a preponderance of the evidence: 1) that the

job qualification justifying the discrimination is rea-

sonably necessary to the essence of its business; and

2) that [sex] is a legitimate proxy for the qualifica-

tion because (a) it has a substantial basis for believ-

ing that all or nearly all [men] lack the qualification,

or . . . (b) it is impossible or highly impractical . . .

9686 BREINER v. NEVADA DEP’T OF CORRECTIONS

to insure by individual testing that its employees will

have the necessary qualifications for the job.

EEOC v. Boeing Co., 843 F.2d 1213, 1214 (9th Cir. 1988)

(quotations omitted).

NDOC has not explicitly articulated the “job qualification”

for correctional lieutenants for which it claims sex is a legiti-

mate proxy. We are left to try to adduce what that “qualifica-

tion” might be from the declarations by NDOC officials on

which the defendants rely in their briefs as justification for the

facially discriminatory policy.

NDOC Director Crawford offered the following explana-

tion for the decision to exclude men from the correctional

lieutenant positions:

• [T]he number of officers who were supervisors

[when CCA operated the facility] were males . . .

They were the individuals who alleged that they

did not know anything about the drugs, alcohol,

and sex.

• [Correctional lieutenants] are the individuals that

can monitor and best, you know, gauge if there is

something going on.

• We wanted upper management to be able to mon-

itor, to understand, and notice anything that went

on. We had so many people telling us during the

private sector that nothing was going on. . . . We

just felt comfortable with doing this.

Glen Whorton, the director of NDOC from 2005 to 2007,

declared that

the employment of male correctional lieutenants at

SNWCF would create a real risk . . . if female

BREINER v. NEVADA DEP’T OF CORRECTIONS 9687

inmates were sexually assaulted abused by male cor-

rectional lieutenants and/or male . . . subordinates

and such abuse was kept silent by the male correc-

tional lieutenants . . . because they were protecting

themselves and/or their . . . subordinates (“code of

silence”).

Whorton described the risks entirely in terms of the opportu-

nities for misconduct inherent in the correctional lieutenant

role:

male correctional lieutenants would have the oppor-

tunity to place male correctional subordinates in situ-

ations lending themselves to sexual misconduct with

female inmates. . . . Male correctional lieutenants

would have the opportunity not to take action against

male correctional subordinates that sexually abused

female inmates. . . . male correctional lieutenants

would have the opportunity to allow contraband to

enter SNWCF . . . in exchange for sexual favors.

Female correctional lieutenants, according to Whorton,

are more inclined to monitor and discipline the

wrongful conduct of correctional subordinates and to

take steps of prevention with respect to female

inmates as their very nature, womanhood, is more

conducive to dealing with the complexities and dif-

ferences of female inmates.

Crawford also testified that she wanted correctional lieuten-

ants who

understand[ ] management of women. I think that

women do have an innate ability to manage women.

. . . To understand[ ] some of the emotional out-

breaks. . . . With women—I don’t believe that they

can be manipulated . . . I just believe [women] are

9688 BREINER v. NEVADA DEP’T OF CORRECTIONS

more patient. They’re probably more maternal. . . .

they have an instinct and an innate ability to discern

what is real and what isn’t. . . . the female officers

were able to better discern, you know, what’s really

happening here.

[10] From this panoply of explanations, it appears that

NDOC administrators sought to “reduce the number of male

correctional employees being compromised by female

inmates,” and that they believed the gender restriction on shift

supervisors would accomplish this because (1) male correc-

tional lieutenants are likely to condone sexual abuse by their

male subordinates; (2) male correctional lieutenants are them-

selves likely to sexually abuse female inmates; and (3) female

correctional lieutenants possess an “instinct” that renders

them less susceptible to manipulation by inmates and there-

fore better equipped to fill the correctional lieutenant role.5

[11] The first theory fails because NDOC has not shown

that “all or nearly all” men would tolerate sexual abuse by

male guards, or that it is “impossible or highly impractical”

to assess applicants individually for this qualification. Boeing,

843 F.2d at 1214. As to the second theory, there is no “basis

in fact,” Dothard, 433 U.S. at 335, for believing that individu-

als in the correctional lieutenant role are particularly likely to

sexually abuse inmates. The third theory—and, to a signifi-

5

NDOC also suggests that privacy and rehabilitation were among the

“factors . . . considered important” in implementing the gender restriction.

Neither in its briefs nor at oral argument, however, was NDOC able to

direct the court to any evidence that Crawford or other administrators

actually considered privacy or rehabilitation in developing the policy. This

void is not surprising, as it is the guards who have direct daily contact with

the inmates, not the correctional lieutenants. As noted, NDOC, in a sepa-

rate policy not here challenged, restricts the number of front line guards

in female prisons. As there is no evidence in this record to indicate that

concern about privacy or rehabilitation was a basis for the decision to pre-

clude men from serving in the supervisory positions, we do not consider

those rationales in our BFOQ analysis.

BREINER v. NEVADA DEP’T OF CORRECTIONS 9689

cant degree, the first two—relies on the kind of unproven and

invidious stereotype that Congress sought to eliminate from

employment decisions when it enacted Title VII.

We begin our analysis by surveying the decisions applying

the BFOQ exception in the prison context. Dothard, the only

Supreme Court case on the subject, concerned a “peculiarly

inhospitable” maximum security prison for men where condi-

tions were so atrocious as to be “constitutionally intolerable,”

and “a substantial portion of the inmate population [was]

composed of sex offenders mixed at random with other pris-

oners.” 433 U.S. at 334, 336. In the context of this extreme

environment, the Supreme Court upheld a regulation prohibit-

ing women from working in “positions requiring continual

close physical proximity to inmates,” id. at 325, finding

“[m]ore [ ] at stake . . . than an individual woman’s decision

to weigh and accept the risks” of working in “a prison system

where violence is the order of the day.” Id. at 335-36. The

Court found “a basis in fact for expecting that sex offenders

who have criminally assaulted women in the past would . . .

do so again if access to women were established within the

prison.” Id. at 335. “The likelihood that inmates would assault

a woman because she was a woman would pose a real threat

to . . . the basic control of the penitentiary.” Id. at 336.

As the Court later noted, “[s]ex discrimination was toler-

ated [in Dothard] because sex was related to the guard’s abil-

ity to do the job—maintaining prison security.” Johnson

Controls, 499 U.S. at 202. In other words, Dothard’s finding

of a BFOQ was premised on a level of violence among

inmates atypical even among maximum security facilities. See

Gunther v. Iowa State Men’s Reformatory, 612 F.2d 1079,

1085 (8th Cir. 1980) (distinguishing Dothard’s finding of a

BFOQ, which was premised on the prison’s “rampant vio-

lence and inhuman conditions,” as inapplicable to a medium

security institution) (quotation omitted), overruled on other

grounds by Kremer v. Chem. Constr. Corp., 456 U.S. 461

(1982).

9690 BREINER v. NEVADA DEP’T OF CORRECTIONS

Appellate courts, including this court, have followed Dot-

hard in requiring prison administrators to identify a concrete,

logical basis for concluding that gender restrictions are “rea-

sonably necessary.”6 42 U.S.C. § 2000e-2(e)(1). In Everson v.

Michigan Department of Corrections, 391 F.3d 737 (6th Cir.

2004), the Sixth Circuit upheld a gender restriction imposed

by the Michigan Department of Corrections (MDOC) to erad-

icate “rampant sexual abuse of female prisoners.” Id. at 739.

MDOC had “pledged . . . to minimize access to secluded areas

and one-on-one contact between male staff and female

inmates” pursuant to settlement of two lawsuits, one brought

by the United States Department of Justice, alleging that the

failure to protect female inmates from ongoing sexual abuse

violated their constitutional rights. Id. at 743. To effectuate

the settlement agreements, MDOC employed only female

guards in the housing units of women’s prisons. MDOC data

showed that most allegations of sexual abuse, and all of the

sustained allegations, involved male employees, and that sex-

ual abuse occurred most frequently in the housing units. This

data, the court held, “established that the exclusion of male

[guards] will decrease the likelihood of sexual abuse.” Id. at

755.

In Henry v. Milwaukee County, 539 F.3d 573 (7th Cir.

2008), a juvenile detention center decided to staff each hous-

ing “pod” with at least one guard of the same sex as the juve-

niles housed on that pod, to achieve a “direct role

model/mentoring form of supervision.” 539 F.3d at 583. Dur-

ing the day, one of the two guards on each male “pod” could

be female, but the sole night shift slot on each pod had to be

staffed by a man. The Seventh Circuit accepted the adminis-

trator’s “professional judgment” that same-gender mentoring

6

Judgments by prison administrators that “are the product of a reasoned

decision-making process, based on available information and experience,”

are entitled to some deference. Robino, 145 F.3d at 1110 (quoting Torres

v. Wis. Dep’t. of Health & Social Servs., 859 F.2d 1523,1532 (7th Cir.

1988)).

BREINER v. NEVADA DEP’T OF CORRECTIONS 9691

was “necessary to achieve the [facility’s] mission of rehabili-

tation.” Id. Yet, the court found no factual support for the

administrator’s conclusion that the program’s effectiveness

required same-sex staff at all times, including on the night

shift, when the juvenile inmates were sleeping. Id.

In Robino, we held that even had the gender-based restric-

tion on assignments been actionable under Title VII, it fell

within the BFOQ exception. The prison, based on “a study

conducted by a specially appointed task force in compliance

with an EEOC settlement agreement,” designated as female-

only those posts that “require[d] the [guard] on duty to

observe the inmates in the showers and toilet areas . . . or pro-

vide[d] unsupervised access to the inmates.” 145 F.3d at

1110-11. Because “a person’s interest in not being viewed

unclothed by members of the opposite sex survives incarcera-

tion,” we held that protecting inmate privacy and preventing

sexual misconduct warranted the restriction. Id. at 1111.

[12] These cases illustrate that, even in the unique context

of prison employment, administrators seeking to justify a

BFOQ must show “a high correlation between sex and ability

to perform job functions.” Johnson Controls, 499 U.S. at 202.

Moreover, the particular staffing restriction at issue must

match those “job functions” with a high degree of specificity

to be found reasonably necessary. See id. (noting that in Dot-

hard the Court “refused to allow employers to use sex as a

proxy for strength although it might be a fairly accurate one”);

Robino, 145 F.3d at 1111 (concluding that guard’s gender

directly affected female inmates’ privacy concerns). In Henry,

for example, the application of the gender restriction on the

night shift would not address privacy concerns, as “the vast

majority of the time that the juveniles were unclothed

occurred during [ ] daytime shifts” when women were permit-

ted to staff the pods, 539 F.3d at 582, and was not justified

by the mentoring objective because “the opportunity . . . to

interact with the juveniles on the [night] shift [wa]s very mini-

mal.” Id. at 585.

9692 BREINER v. NEVADA DEP’T OF CORRECTIONS

Applying this “high correlation” requirement, NDOC’s first

rationale for restricting the supervisory correctional lieutenant

positions to women cannot suffice. Crawford’s testimony sug-

gests that because the supervisors employed by CCA were

male and had failed to prevent sexual abuse, NDOC was enti-

tled to conclude that men as a class were incapable of ade-

quately supervising front line staff in female prisons. While

we must defer to the reasoned judgment of prison administra-

tors, see Robino, 145 F.3d at 1110, CCA’s acknowledged

leadership failure falls far short of providing “a factual basis

for believing that all or substantially all [men] would be

unable to safely and effectively perform the duties of the job,”

or that it would be “impossible or highly impracticable to

determine job fitness”—here, the ability to enforce workplace

rules prohibiting sexual misconduct—”on an individualized

basis.” Williams v. Hughes Helicopters, Inc., 806 F.2d 1387,

1391 (9th Cir. 1986).7 The fundamental switch in operational

responsibility to NDOC, moreover, made any inference from

the experience under CCA’s extremely poor management all

the weaker.

NDOC’s second rationale fares no better. There is no evi-

dence indicating that any correctional lieutenant at SNWCF

had sexual relationships with an inmate.8 In contrast, in Ever-

son, copious data about the actual incidence of sexual abuse

in Michigan’s women’s prisons supported the conclusion that

the gender restriction on guards in the housing units would be

7

Williams applied the BFOQ exception to the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 623(f)(1), Williams, 608 F.2d at

1389, which “tracks the BFOQ provision in Title VII.” Johnson Controls,

499 U.S. at 201.

8

NDOC’s brief asserts that “Crawford discovered that many of the cor-

rectional employees compromised at SNWCF were males in supervisory

positions.” The citation to the record, however, shows that the “compro-

mised” men in supervisory roles were “the individuals who alleged that

they did not know anything about the drugs, alcohol and sex.” Correc-

tional lieutenants at SNWCF may have turned a blind eye to sexual abuse,

but nothing in the record suggests they committed it themselves.

BREINER v. NEVADA DEP’T OF CORRECTIONS 9693

effective. 391 F.3d at 755. In Robino, prison administrators

used “a study by a specially appointed task force” and “an

extensive inventory of post duties” to limit the gender restric-

tion to those posts that “provide[d] unsupervised access to the

inmates.” 145 F.3d at 1111. NDOC, however, offers neither

data nor logical inferences about the opportunities for abuse

inherent in the correctional lieutenant position to support the

restriction.

In fact, the one substantiated case of sexual abuse Crawford

mentioned was the front line guard who impregnated an

inmate, yet NDOC continues to employ men in thirty percent

of these positions. See Everson, 391 F.3d at 761 (“[n]either

the district court nor the plaintiffs have explained how rede-

ployment of female supervisors to the housing units [the alter-

native advocated by the plaintiffs,] would cure problems

stemming from the very presence of male [guards] in the

housing units.”). When asked why the complete prohibition

on the hiring of men was limited to correctional lieutenants,

Crawford stated, “We did not want to go globally on this. We

wanted to be specifically, what can we do to bring this thing

under control . . . ? And it was the recommendation that we

just look at . . . not the line level, but the supervisor level.”

This explanation falls short of the “reasoned decision-making

process, based on available information and experience,”

Robino, 145 F.3d at 1110, that can support a BFOQ.9

9

NDOC points to a report by the National Institute of Corrections (NIC)

as evidentiary support for the claim that same-sex supervision “will likely

decrease the number” of claims of sexual abuse. However, the NIC

report’s recommendation as to “supervision” clearly refers to the supervi-

sion of inmates by guards, not of guards by management employees. See-

BARBARA BLOOM ET AL., GENDER-RESPONSIVE STRATEGIES: RESEARCH,

PRACTICE, AND GUIDING PRINCIPLES FOR WOMEN OFFENDERS at 120 (National

Institute of Correction, 2003) (“Same sex supervision lessens the likeli-

hood of sexual misconduct . . . [t]he most visible claims [of sexual mis-

conduct] are those brought against males who are supervising female

inmates.”). The report provides no support for the decision to eliminate

male correctional lieutenants while continuing to hire men in thirty per-

cent of the front-line guard positions. (We do not mean to suggest that

NDOC’s gender restriction would have met the BFOQ standard if it com-

passed all SNWCF’s correctional officer positions, as the issue is not

before us.)

9694 BREINER v. NEVADA DEP’T OF CORRECTIONS

Even if there were a factual basis to believe that any correc-

tional lieutenant sexually abused any inmate, there is no basis

to presume that sexual abuse, by correctional lieutenants or by

guards with their supervisors’ tacit permission, would con-

tinue after the state resumed control over the prison. CCA’s

lax oversight provided male correctional lieutenants “the

opportunity not to take action against male correctional subor-

dinates that sexually abused female inmates.” That opportu-

nity cannot be presumed to exist after the wholesale change

of SNWCF’s leadership, designed precisely to cure wholesale

management defects going well beyond the sexual abuse

issue.

To hold otherwise would be to absolve NDOC from their

fundamental responsibility to supervise their staff, from war-

dens to front-line guards. In Dothard, the inmates’ violent

behavior, which prison administrators could not directly con-

trol, rendered the gender restriction reasonably necessary.

Neither Dothard nor any of the cases on which NDOC relies

support finding a BFOQ based on the bald assertion that it

would be “impossible . . . to ensure that any given male cor-

rectional lieutenant will take action to prevent and stop sexual

misconduct.” Where, as here, the problem is employee behav-

ior, prison administrators have multiple resources, including

background checks, prompt investigation of suspected mis-

conduct, and severe discipline for infractions, to ensure com-

pliance with institutional rules.

NDOC has not demonstrated that these alternative

approaches—including the Inspector General’s suggestion of

enhanced training for both supervisors and front-line guards

—are not viable. See Henry, 539 F.3d at 581 (“Milwaukee

County offered no reasons why the numerous alternatives to

same-sex staffing . . . would not have mitigated any con-

cern.”); Forts v. Ward, 621 F.2d 1210, 1216 (2d Cir. 1980)

(upholding a district court order “prohibit[ing] the stationing

of male guards at locations where inmates could be viewed

. . . unclothed” but reversing a ban on male guards during the

BREINER v. NEVADA DEP’T OF CORRECTIONS 9695

night shift because inmate privacy could be protected by

means that did not infringe on employment rights); Gunther,

612 F.2d at 1087 (holding that gender was not a BFOQ where

administrative changes in job functions and procedures would

adequately protect inmate privacy). Whorton’s conclusory

assertion that “more training is not a cure for this serious

issue” is, without more, wholly inadequate. Even the NIC

report, on which NDOC purportedly relied, recommends “im-

proving training programs to heighten staff awareness of [sex-

ual abuse] and its consequences.”

[13] 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 elimi-

nate subjective assumptions and traditional stereotyped con-

ceptions 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 air-

line’s contention that “the special psychological needs of its

passengers . . . are better attended to by females”). “The

harmful effects of occupational cliches,” Gerdom v. Continen-

tal Airlines, 692 F.2d 602, 607 (9th Cir. 1982), are felt no less

strongly when invoked as a basis for one gender’s unique suit-

ability 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).

[14] A BFOQ can be established only by “objective, verifi-

able requirements [that] concern job-related skills and apti-

9696 BREINER v. NEVADA DEP’T OF CORRECTIONS

tudes.” Johnson Controls, 499 U.S. at 201. Though the

professional judgment of prison administrators is entitled to

deference, see Robino, 145 F.3d at 1110, “[t]he refusal to hire

a [man] because of [his] sex based on assumptions of the

comparative employment characteristics of [men] in general”

will not support a BFOQ. 29 C.F.R. § 1604.2(a)(1); see also

Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724-25

(1982) (“[A] gender-based classification . . . must be applied

free of fixed notions concerning the roles and abilities of

males and females.”); Dothard, 433 U.S. at 333 (“[I]t is

impermissible under Title VII to refuse to hire an individual

woman or man on the basis of stereotyped characterizations

of the sexes.”); Torres, 859 F.2d at 1527 (“Myths and purely

habitual assumptions about a woman’s or a man’s inability to

perform certain kinds of work are no longer acceptable rea-

sons for refusing to employ qualified individuals.”) (quoting

City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S.

702, 707 (1978) (brackets omitted)); Fernandez v. Wynn Oil

Co., 653 F.2d 1273, 1276 (9th Cir. 1981) (“[S]tereotypic

impressions of male and female roles do not qualify gender as

a BFOQ.”).

[15] In sum, NDOC has not met its burden of showing “a

basis in fact,” Dothard, 433 U.S. at 335, for concluding that

all male correctional lieutenants would tolerate sexual abuse

by their subordinates; that all men in the correctional lieuten-

ant role would themselves sexually abuse inmates; or that

women, by virtue of their gender, can better understand the

behavior of female inmates. Nor has it refuted the viability of

alternatives that would achieve that goal without impeding

male employees’ promotional opportunities.

CONCLUSION

[16] Restricting employment opportunity on the basis of

gender can be justified by the need to counter uncontrollably

violent inmate behavior, as in Dothard. But this case concerns

the behavior of employees, not inmates. Precluding men from

BREINER v. NEVADA DEP’T OF CORRECTIONS 9697

serving in supervisory positions in women’s prisons is not a

substitute for effective leadership and enforcement of work-

place rules. As NDOC’s correctional lieutenant restriction

denied promotional opportunities on the basis of sex and was

neither “de minimis” nor “reasonably necessary to the normal

operation” of SNWFC, 42 U.S.C. § 2000e-2(e)(1), it violated

Title VII. The district court’s order granting summary judg-

ment to the defendants is REVERSED, and this case is

REMANDED for further proceedings consistent with this

opinion.