holding cause of action under Title VII and section 1983 the same
How later courts described this case
- holding cause of action under Title VII and section 1983 the same
- an exception to Title VII’s broad prohibition against sex discrimination would be where deputies of the opposite sex would have to conduct strip or body cavity searches
- “When section 1983 Ms. Gomez were similarly situated in all material respects besides gender, including, inter alia, their rank, duties and responsibilities, and experience level.”
- “Defendants ... have failed to prove they cannot rearrange job responsibilities so that female deputies assigned to male sections of the jail will not have to perform duties that impinge upon inmate privacy rights.”
Written by the judges who cited it.
The opinion
CLARK, Circuit Judge,
dissenting:
I would affirm the decision of the district court because my examination of the record does not reflect that the court’s conclusion was clearly erroneous. The majority, in order to reverse, suggests that women hired as deputies could either be (1) excused from the assignment to the county jail or (2) excused from assignments within the jail which would invade the inmates’ privacy. The record reflects that employment and retention of qualified jailors is an ongoing challenge for the defendant. The “suggestions” of the majority would place Hardin and other women employed by the sheriff in preferred positions over men, complicating the personnel moral factor.
The majority makes the following finding of fact:
Hardin is not seeking assignment to duties that would infringe upon inmate privacy, however. Since the majority of the deputy sheriff positions in the male section of the jail do not require performance of strip searches or observation of inmates’ use of shower or toilet facilities, it appears that modification of the system of rotating deputy sheriff assignments will avoid the clash between privacy *1375 rights and equal employment opportunities without either substantially affecting the efficient operation of the Sheriff’s Department or undermining its essential functions. In other correctional institutions it has been found possible to preserve the privacy of inmates while employing guards or correctional officers of the opposite sex, and defendants have failed to prove that similar accommodations cannot be made in this case.
691 F.2d at 1373 (footnote omitted). The district court explicitly found, however, that the overcrowding of the jail and the understaffing of supervisory personnel make such accommodations for women guards impossible in the Fulton County Jail. Record at 590. This finding of fact may not be set aside by this court unless clearly erroneous. Fed.R.Civ.P. 52(a); Pullman-Standard v. Swint, - U.S. -, 102 S.Ct. 1781 , 72 L.Ed.2d 66 (1982).
The majority opinion cites cases where prisons have been able to accommodate the assignment of female prison guards, but the facts in those cases do not compare to the problem here. The record makes clear that this jail has multiple dormitory quarters with open showers and a transient population with about 25 percent of the inmate population convicted of or charged with violent crimes. The Fulton County Jail situation is further complicated by the disproportionate number of inmates to prison guards, with a ratio of about 20 to 1. This compares to a ratio of 8.5 to 1 at the Atlanta Federal Penitentiary, a maximum security institution at which women are not hired as jailors. The following excerpts from the district court’s order illustrate the conditions existing in the jail and provide the basis for my disagreement with the majority opinion;
Jail administrators refer to the Fulton County Jail as a “maximum security institution.” Due in large part to overcrowded conditions, the jail environment is volatile and hostile. Deputies in the male division of the jail are subjected to daily verbal and, in some instances, physical abuse by inmates. Inmates have been known to throw urine on the deputies as they pass the cells, and physically confront and attack deputies on occasion.
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Record at 581 (footnote omitted).
Although not all deputies are assigned to floor duty during any one shift, deputies are rotated within the jail to different assignments in order to limit the opportunity of deputies and inmates to become overly familiar with each other. This irregular rotation is required as a result of past charges alleging that deputies have been bribed by inmates, or have provided contraband and weapons to the inmates. The rotation rule helps to minimize the occurrence of such incidents, and to insulate the deputies from false charges.
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Record at 582.
The evidence was overwhelming that the overcrowding of the jail and the under-staffing of supervisory personnel make the possibility of exempting women from certain duties, such as taking inmates to shower facilities or performing strip searches, an impossibility. All personnel are required and must be prepared to do any job at any time. There are not sufficient personnel on duty at any one time to permit the scheduling of male deputies to fill in for the female deputies who would be barred from certain contact functions, or to accommodate the rotation of duties required by the Sheriff to minimize deputy-inmate familiarity. The ratio of guards to inmates at the jail is already disproportionate. Redefining the duties of the Deputy Sheriffs I at the jail to insulate some deputies from toilet or shower surveillance or strip searches would disrupt and further burden the already overloaded and overworked Sheriff’s Department. Defendants have shown that no assignment of selective job *1376 responsibilities can be made that will permit the employment of members of both sexes in the male section of the jail.
* * * # * *
Record at 590-91.
There was ample testimony at trial that duty inside the jail is singularly unpleasant, and that it is an administrative necessity for the Sheriff to be able to rotate deputies out of the jail after a period of time and into other jobs. This concern is more than simply an accommodation of employee expectations or administrative convenience. To permit female Deputy Sheriffs I to avoid duty at the jail and to be given preference in other job assignments would be unfair to all the employees. This court does not believe that the proscriptions of Title VII against job discrimination require that either the jail administration or the other deputies be put to undue hardship or sacrifice to accommodate female employees.
Record at 591.
My dissent from the majority is not based upon a different view of the law, but upon a different assessment of the facts. The majority opinion correctly cites several cases in which courts have held that the administrative difficulties inherent in hiring women as guards in male prisons were outweighed by the policy considerations of Title VII. Other cases have weighed facts and arrived at the opposite conclusion. E. g., Dothard v. Rawlinson, 433 U.S. 321 , 97 S.Ct. 2720 , 53 L.Ed.2d 786 (1976). This case presents another judgment call to determine whether the BFOQ exemption or business practices exception was supported by these specific facts. I find the district court’s conclusions amply supported. While I recognize that another judge might find differently, I cannot agree with the majority’s conclusion that “as a matter of law the evidence produced by defendants is insufficient to sustain their bfoq defense.” 691 F.2d at 1372.
Employment in the Fulton County Jail encompasses assignments in administration, supply, maintenance, food service, recreation and hospital services, in addition to duties on the floors among the inmates. Individuals willing to perform the demanding job in the jail should be rewarded by opportunities for participation in all of the assignments at the jail and promotion to the non-jail preferred jobs. Permitting women or men to have selected jail assignments, or preferred jobs without performing any jail duty, is unfair to the other individuals employed and to the sheriff who has to recruit them. I respectfully dissent.