Iowa Department of Social Services, Iowa Men's Reformatory v. Iowa Merit Employment Department

REYNOLDSON, Justice

(dissenting).

If there is an intimation in the majority opinion a female should be denied employment in any position because of personal danger to her, I disagree.

I do agree with the majority the present employment of a female in a CO II position at Iowa Men’s Reformatory would involve an invasion of the inmates’ constitutional *170 right of privacy. I also agree the duty “exemptions” granted by the commission would create still another irrational classification in a system which, at least as it relates to this department, is riddled with inconsistencies.

Confronted by these circumstances, I would reach a different disposition of this appeal. On this record it is impossible to reach a fair and rational result for either Gunther or the department. Present classifications fail to reflect not only necessary BFOQ exceptions, but the duties and responsibilities undertaken by those in the same classifications in various institutions under the department. See § 218.1, The Code.

There is evidence in the record there are no male guards classified CO II at the women’s reformatory. There are women employees “kept in a protected situation” but classified CO II at the state penitentiary (for men). The sex, classifications, duties and responsibilities of correctional officers at correctional release centers and camps were not the subject of testimony in this case. Similar anomalies may be present there.

The commission assigns some blame to the department for this situation, but concedes its own unfulfilled responsibility to clarify institutional job classifications. This duty is imposed on the commission by statute, § 19A.9(1), and under its own rule 570-3.1(4), I.A.C.:

“The commission through co-ordination with, and the co-operation of, the agencies shall from time to time review the classification plan and may add, combine, divide or abolish classes or revise the specifications of existing classes or establish new classes as the needs of the classified service so indicate. * * * ”

Any attempt to assign Gunther to a classification in these circumstances would be a temporary expediency at best.

The decisions below prejudiced the department’s substantial rights and flowed from an erroneous concept of law. As a result this court is authorized to grant wide-ranging relief, including power to “reverse, modify, or grant any other appropriate relief from the agency action, equitable or legal and including declaratory relief.” § 17A.19(8), The Code.

I would reverse and remand this case to the commission for ultimate decision following reclassification and opportunity for each party to present additional evidence. This decision should be rendered in light of the following considerations:

1. The decision in Dothard v. Rawlinson, — U.S. —, 97 S.Ct. 2720 , 53 L.Ed.2d 786 (1977).

2. The reality that in appropriate situations there must be BFOQ exceptions recognizing prisoners’ limited rights of privacy.

3. The precept that all merit system employees should receive equal pay for equal work and this cannot be achieved by permitting departments or agencies unlimited freedom in classifying positions and developing pay plans. Peters v. Iowa Emp. Security Com’n, 235 N.W.2d 306, 310 (Iowa 1975); see last paragraph of § 19A.3, The Code.

4. To the extent the same are not nullified by § 17A.22 as inconsistent laws, the right of the director of the division of corrections to perform those duties prescribed in § 217.14(1), (2), (3) and (4); the right of the directors of the particular correctional institutions to recommend management rules, § 218.4; and the right of the division director to “classify the officers and employees into grades,” § 218.13.

5. The complex and difficult realities of running a penal institution, and the wide-ranging deference to be accorded the opinions and decisions of prison administrators, Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 125-128 , 97 S.Ct. 2532, 2538-2539 , 53 L.Ed.2d 629, 638-640 (1977).

6. The precept that when employees of either sex are protected by selective duties under a broad classification which inevitably imposes on employees of the other sex more dangerous or onerous duties and responsibilities such practice not only violates the equal pay — equal work concept, it is reverse sexual discrimination violating § 19A.18.

*171 Under the disposition suggested here, if Gunther ultimately were held entitled to a higher classification, or higher pay grade-within her present or a comparable classification, provision could be made for retroactive payment of her rightful salary.