Jail Discrimination Suit Revived in San Francisco

(CN) - Concerns about illicit jail sex are not enough to justify a policy that prohibits male deputies from supervising female inmates in San Francisco, the 9th Circuit ruled Wednesday.

Former San Francisco Sheriff Michael Hennessey adopted the policy in 2006, at the same time moving all female inmates from various city and county facilities into one jail.

He said that the policy was designed primarily to protect female inmates from sexual abuse by male deputies, and to protect male deputies from false allegations of the same.

In the five years prior to the adoption of the policy, the department had investigated 10 incidents of alleged sexual misconduct or inappropriate sexual relationships between a male deputy and a female inmate, the 9th Circuit noted.

Alleging that the new policy had messed up various hard-earned scheduling, overtime and career-development opportunities, 35 deputies, most of them female, challenged the rule in a 2007 federal sex-discrimination lawsuit against the City and County of San Francisco.

U.S. District Judge Susan Illston ruled for the defendants on cross-motions for summary judgment, upholding the policy under the Bona Fide Occupational Qualification exception.

The exception allows for sex discrimination in a specific job - such as "a female role in a film."

A three-judge panel of the 9th Circuit reversed on Wednesday and sent the case back to District Court.

The lower court gave the sheriff too much deference and was too quick to grant summary judgment, according to the ruling.

"The justifications offered by the county in support of the policy each speak to extremely important concerns, and the sheriff is to be commended for his attention to the welfare of female inmates in San Francisco's jails," Judge Mary Murguia wrote for the court. "However, the fact that the policy seeks to advance such important goals as inmate safety is not, by itself, sufficient to permit discrimination on the basis of sex. When moving for summary judgment, the county bears the heavy burden of showing that there are no genuine issues of material fact as to whether excluding male deputies because of their sex is a legitimate substitute for excluding them because they are actually unfit to serve in the female housing pods."

San Francisco made no such showing, Murguia wrote, adding that the record also fails to show that the policy resulted from a "reasoned process."

Without the deference embraced by the lower court, "the county is also unable to meet its burden of proving that there is no issue of material fact as to whether its policy of excluding all male deputies from the female housing units is a legitimate proxy for excluding only those deputies that truly pose a threat to the important interests SFSD rightfully seeks to protect," the panel found.

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