TEAMSTERS LOCAL UNION NO. 117, a Washington corporation, Plaintiff-Appellant,
WASHINGTON DEPARTMENT OF CORRECTIONS, Defendant-Appellee, JANE DOE CLASS, Intervenor-Defendant-Appellee
Argued and Submitted, Seattle, Washington December 9,
Appeal from the United States District Court for the Western District of Washington. D.C. No. 3:11-cv-05760-BHS. Benjamin H. Settle, District Judge, Presiding.
Affirming the district court's summary judgment, the panel held that the Washington Department of Corrections did not discriminate against male correctional officers on the basis of sex in violation of Title VII by designating a number of female-only correctional positions in women's prisons.
The panel denied the Department's motion to dismiss the appeal, holding that the record, as supplemented on appeal, established standing on the part of the correctional officers' union.
On the merits, the panel concluded that the Department's individualized, well-researched decision to designate discrete sex-based correctional officer categories was justified because sex was a bona-fide occupational qualification reasonably necessary to the normal operation of the women's prisons. The panel stated that the Department was well-justified in concluding that rampant abuse should not be an accepted part of prison life and taking steps to protect the welfare of female inmates under its care.
Spencer Nathan Thal (argued), General Counsel, and Daniel A. Swedlow, Senior Staff Attorney, Teamsters Local Union No. 117, Tukwila, Washington, for Plaintiff-Appellant.
Peter B. Gonick (argued), Robert W. Ferguson, Attorney General, Kara A. Larsen, Senior Counsel, and Ohad M. Lowy, Assistant Attorney General, Washington State Office of the Attorney General, Olympia, Washington, for Appellee.
Nicholas B. Straley (argued) and Melissa R. Lee, Columbia Legal Services, Seattle, Washington, for Intervenor-Defendants-Appellees.
Before: Michael Daly Hawkins, M. Margaret McKeown, and Richard C. Tallman, Circuit Judges. Opinion by Judge McKeown.
McKEOWN, Circuit Judge
For years, Washington faced problems common to a number of states in their women's prisons: sexual abuse and misconduct by prison guards, breaches of inmate privacy, and security gaps. A primary driver, according to prison authorities, was the lack of female correctional
officers to oversee female offenders and administer sensitive tasks, such as observing inmates showering and dressing and performing the pat (or " pat-down" ) and strip searches that are stitched into the fabric of day-to-day prison life. After long wrestling with this gender gap, the state undertook a comprehensive assessment and ultimately designated a limited number of female-only correctional positions--specifically, 110 positions to patrol housing units, prison grounds, and work sites. The prison guards' union, Teamsters Local No. 117 (" Teamsters" or the " Union" ), challenged this practice, though it acknowledges the legitimacy of 50 of the female-only designations. This case juxtaposes the prison's penological interests against male correctional officers who claim the staffing policy discriminates against them on the basis of sex in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e.
We conclude that the Washington Department of Corrections' (the " Department" or the " state" ) individualized, well-researched decision to designate discrete sex-based correctional officer categories was justified because sex is a bona-fide occupational qualification (" BFOQ" ) for those positions. The Union's thin evidentiary submissions--coupled with expert claims that were largely unsubstantiated or missed the point--failed to raise a material factual issue. Indeed, the startling statement by one of the Union's experts underscores the legitimacy of the state's efforts to combat sexual abuse: " Sexual abuse is present in all areas of our society. . .[F]emale inmates must be taught as part of the rehabilitation process to deal with all abusive staff: males and females . . ." The Department was well-justified in concluding that rampant abuse should not be an accepted part of prison life and taking steps to protect the welfare of inmates under its care. We affirm the district court's grant of summary judgment in favor of the Department.
The Department runs two women's prisons. The Washington Corrections Center for Women in Gig Harbor has a capacity of 738 inmates, although it is often overcrowded. That prison runs the gamut from minimum security facilities to housing for violent offenders and those with mental health issues. It also houses Washington's death row for female prisoners. The second facility is Mission Creek Corrections Center for Women in Belfair, a smaller minimum-security prison that houses around 300 inmates.
For decades, men dominated the ranks of prison guards, though neither party has provided precise figures. Facing a shortage of female guards in the late 1980s, state prison administrators began allowing male guards to perform random, clothed body searches--commonly known as pat searches--of the female inmates at Washington Corrections Center. Female inmates challenged these cross-gender searches as unconstitutional. The district court granted an injunction and halted the practice. Sitting en banc, we affirmed, concluding that cross-gender body searches inflict unnecessary and wanton pain on female inmates, many of whom have suffered a history of sexual abuse before incarceration, and, therefore, violate the Eighth Amendment. Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Under both Jordan and a later-enacted Washington law, female correctional officers must perform all non-emergency
pat searches of female inmates. Wash. Rev. Code § 9.94A.631(2) (2012).
In the years following Jordan, the Department struggled with the challenges posed by having an overwhelmingly male workforce. In 1998, it asked the Washington Human Rights Commission (the " Commission" ) for an opinion on proposed correctional assignments reserved exclusively for female officers. The Commission did not favor the Department's approach at that time.
In 2003, Congress passed the Prison Rape Elimination Act, which included findings that, based upon experts' conservative estimates, 13% of prisoners had been sexually assaulted while in prison. See 42 U.S.C. § 15601. The legislation also noted that many instances of abuse go unreported and prison personnel were inadequately trained to deal with these issues. See id. § § 15601-09. Under the Act, the Department received a $1 million grant to hire two full-time employees to investigate sexual misconduct allegations in prisons.
In the years that followed, the Department fielded widespread allegations of sexual abuse in its women's prisons. State officials, for example, substantiated 46 instances of misconduct in a single two-and-a-half-year stretch. In the aftermath, in 2007, female inmates brought a class action in state court alleging misconduct at the Washington Corrections Center. The complaint detailed incidents where guards assaulted and fondled female inmates and forced them to perform oral sex and masturbate in the presence of male officers. Complaint, Jane Doe v. Clarke, No. 07-2-01513-0, Dkt. No. 4 (Thurston Co. S.Ct. July 31, 2007).
Within a week of the filing of that lawsuit, the Department hired a consultant to investigate sexual activity and misconduct. After a four-month internal investigation, the consultant detailed the facts in a 240-plus-page report. The investigation included interviews with 72 " Jane Doe" inmates, who alleged that they faced sexual advances and harassment from prison guards. Among the lurid details, male guards twice impregnated inmates and smuggled contraband in exchange for sexual favors.
The Department also hired two additional consultants to review prison practices. Marianne McNabb, of the Social Research Institute based in Olympia, Washington, wrote:
Cross-sex supervision is currently one of the most significant issues facing the administration of women's prisons. Today in many states, over 50 percent of the custody force in prisons for women are men. The fact that so many women in prison have experienced sexual abuse by men makes them different from male prisoners who do not share that history and therefore do not experience the same level of anxiety or violation as do women, when under the custody or supervision of an officer of the opposite sex.
McNabb noted that several jurisdictions, including Idaho and Michigan, " have established sex-specific posts in female institutions" in response to these dynamics. Her report concluded, " While this may
seem to be a solution for many of the concerns identified, this practice is generally not fully understood or accepted by staff and has faced some legal challenges."
Donald Kelchner, superintendent of the Pennsylvania Department of Corrections, urged the Department to adopt a host of reforms, including guard assignments reserved specifically for women. In particular, Kelchner recommended that the state ensure any double-staffed housing units have at least one female guard. Kelchner concluded, " It is more desirable in an institution housing females to have a higher number of female staff, to work with and supervise the inmates."
Following the expert recommendations, the Department in January 2008 implemented an array of reforms to " reduce prison sexual assaults and related behavior." Those efforts included aggressive recruitment of female prison guards; pre-hiring psychological testing; training programs to enhance " gender awareness" ; and the installation of privacy curtains, security cameras, and restricted access entry cards.
Then, in May 2008, prison administrators again requested guidance from the Commission on the Department's proposed 110 female-only guard post assignments at the two prisons. The Department submitted a tailored request for each post, explaining the job responsibilities and why the positions needed a female officer. The state told the Commission that " [i]ncreasing the number of female staff will reduce the risk of sexual misconduct, reduce allegations of sexual misconduct, and protect male staff exposed to vulnerable situations" and unfounded complaints of abuse. The state also emphasized the privacy requirements of female inmates and the operational need to have female officers on hand to perform necessary searches and other tasks. The requested staffing changes, according to the state, would " ensure the security of the prisons, safety of incarcerated offenders, and protection of the privacy and dignity of female offenders."
After touring the prisons, interviewing administrators, and collecting detailed documentation, the Commission in February 2009 approved the Department's request for all 110 positions. The Commission offered Teamsters the chance to provide input but none was forthcoming. The Commission determined that, with the then-existing staff makeup at the prisons, the state was " unable to ensure a proper balance between security considerations and ...