No Bias in Making Guard Jobs for Women Only

     SEATTLE (CN) – It was not discriminatory for the Washington Department of Corrections to designate 110 female-only guard positions in its two women prisons to combat sexual abuse of prisoners, the Ninth Circuit ruled Friday.
     A 2007 Jane Doe class action lawsuit brought by female inmates at the Washington Corrections Center alleged a pattern of sexual abuse by male prison guards, including incidents where guards assaulted and fondled female inmates and forced them to perform oral sex and masturbate in front of them.
     In response, the Washington DOC implemented a series of reforms, which included prehiring psychological testing, training programs to enhance “gender awareness” and – leading to the case at issue – “aggressive recruitment” of female prison guards, of which there was a shortage at the state’s two women’s prisons in Gig Harbor and Belfair.
     In September 2011, a local union of Teamsters filed a lawsuit alleging that the department’s designation of 110 female-only positions violated the civil rights of male prison guards and constituted sex discrimination.
     The female-only positions encompass such “sensitive” job responsibilities as conducting pat and strip searches and observing inmates while they shower and use the restroom.
     A three-judge panel of the Ninth Circuit affirmed judgment for the state Friday, saying the “well-researched decision to designate discrete sex-based correctional officer categories” was justified because sex is a “bona-fide occupational qualification,” or BFOQ, for those positions.
     “BFOQs are few and far between,” Judge Margaret McKeown wrote for the panel. “In many industries, it is difficult to imagine any jobs that would qualify as BFOQs.
     “However, the ‘unique context of prison employment’ is one area where courts have found sex-based classifications justified.”
     The DOC did not designate the female-only positions as a “panacea,” but as part of an “exhaustive” set of reform measures, according to the 31-page opinion.
     McKeown also found that the DOC’s staffing policy was not “broad or overreaching,” nor was it “a blunderbuss approach to the issue,” as the Teamsters had claimed.
     “Instead of a blanket ban on male prison personnel, the department crafted the staffing needs to fit each specific facility and guard post,” she wrote.
     McKeown rejected claims that the DOC implemented sex-based staffing “during a time of departmental crisis,” and in a “panic,” that was little more than a “desperate attempt” to settle the Jane Doe class action.
     “If sordid details of sexual abuse and constitutional violations do not inspire a ‘crisis’ and feelings of ‘panic,’ then what does?” she wrote. “The state shouldn’t be demonized for kicking into gear to find a remedy for its long-running challenges.”
     The Teamsters actually hurt their own case, the court found, when one of their own experts made the “startling” assertion that preventing abuse does female inmates a disservice.
     “Female inmates cannot be shielded from the world in which we live,” that expert had said, as quoted by McKeown. “If they are to reintegrate into society, they have to be taught how to deal with abusive staff. … Just as females have to be taught how to deal with those abuses in the larger society, female inmates must be taught as part of the rehabilitation process how to deal with all abusive staff.”
     McKeown’s outrage with the theory was palpable. “To state something so obvious we never imagined it would need to be written: we reject any suggestion that female prisoners would benefit from being subjected to abusive prison guards as ‘part of the rehabilitation process’ so that they may better ‘reintegrate into society,'” she wrote.
     Neither side could be reached for comment on Friday.

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