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Court Allows Women-Only Guards For Washington Women's Prisons

By Casey C. Sullivan, Esq. | Last updated on

Just in time for the release of the third season of "Orange is the New Black," the Ninth Circuit has decided an important case involving the governance of women's prisons. If you're a fan of the show, you'll remember that last season, one female prisoner was impregnated by a guard.

Such a plot point wouldn't be possible were the show set in Washington state, where state law prevents male correctional officers from working in many positions in women's prisons. That restriction isn't prohibited sex discrimination under Title VII of the Civil Rights Act, the Ninth Circuit ruled last Friday.

A History of Abuse in Prisons

Like many prison systems, Washington's women's prisons were plagued by complaints of sexual abuse, guard misconduct and breaches of inmate privacy in its two women's prisons. Suit after suit alleged sexual abuse in the prisons, often at the hands of the mostly male prison workforce, with 46 substantiated instances in just a two and a half year period.

In response to such complaints, and years of inmate lawsuits, Washington state conducted an investigation of its prisons. The state determined that the primary driver was the lack of female correctional officers to administer "sensitive tasks," such as observing inmates showering and performing pat-down searches. The state Department of Corrections then designated over 100 such positions as "female only" causing the prison guards, represented by the Teamsters, to sue for sex discrimination.

No Impermissible Discrimination

The gender specific requirement for such positions, the guards argued, wrongly discriminate against male prison workers. Under Title VII of the Civil Rights Act, employers cannot discriminate on the basis of sex, except in cases where sex is a "bona fide occupational qualification." A BFOQ is a narrow defense to a discrimination claim, but it's one that applies here, the Ninth found.

Under Ninth Circuit precedent, a BFOQ will be found only when the gender restriction "is reasonably necessary to the essence of the business" and gender is a legitimate proxy for determining job qualifications. Such a situation exists here, the court held. Preventing sexual assault, increasing security and enhancing safety all go to the "essence" of prison operations. Further, an extensive and reasoned decision making process found that gender-specific staffing was a reasonable method for determining qualifications. That determination is entitled to deference, the Ninth Circuit ruled.

Worst Argument of the Year?

The guards might not have helped their case by making a few particularly offensive arguments. As the decision notes, the guards argued "amazingly," that female inmates should not be shielded from abuse, since "if they are to reintegrate into society, they have to be taught how to deal with abusive staff." The court rejected "any suggestion that female prisoners would benefit from being subject to abusive prison guards." That such an argument wouldn't fly is "so obvious we never imagined it would need to be written."

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