CA 9 Orders Trial in Male Guards’ Title VII Suit: Says County Hasn’t Shown Policy is BFOQ

The County of San Francisco will have to make a better evidentiary showing if it wants the courts to uphold its policy of not assigning male prison guards to oversee female inmates.

Denying summary judgment, the U.S. Court of Appeals for the Ninth Circuit ruled last week that the county has failed to demonstrate that not assigning men to these areas is a bona fide occupational qualification under Title VII of the 1964 Civil Rights Act.

That’s a somewhat fancy way of saying that the employer’s interest can only be advanced by denying an entire category of jobs to one gender-which Title VII allows but requires the employer to prove.

The county asserted an interest in protecting female inmates from harm, but the court said there might be other ways for the county to advance its goals other than a blanket exclusion of men from the job. These might include, for example, it could conduct background checks and psychological testing.

In addition, the court said, “the County is also unable to show that there is no genuine dispute as to whether it is impossible or highly impractical to insure by individual testing that a male deputy does not have a propensity to perpetrate sexual misconduct.”

You can access the court’s ruling in Anderson v. City and County of San Francisco on the Ninth Circuit’s website.

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