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Court Vacates Summary Judgment Regarding Sex Discrimination and BFOQ Stating Reasons for Implementation were Arbitrary

Male sheriff's deputies were denied the right to supervise female-only housing within the city and county of San Francisco correctional facility. The policy, which was in effect since 2006, was put in place for the safety of the female inmates, as well as to curtail the sexual misconduct of the past. A group of sheriff's filed suit against the city and county of San Francisco alleging that the policy prohibiting male deputies from supervising female inmates in housing units of jails operated by the County violated Title VII and California's Fair Employment and Housing Act.

The district court granted summary judgment for the County regarding the sex discrimination claim. The Ninth Circuit Court of Appeals reversed the district court's ruling, holding the County was unable to bear its burden of demonstrating that there was no genuine issue of material fact as to whether it was entitled to a defense based upon bona fide occupational qualifications (BFOQ). The Ninth Circuit explained that when applying BFOQ in a prison context, the administrator must show 'a high correlation between sex and ability to perform job functions.' Although the court gave high deference to the decision of administrators in this context (a correctional facility), in this case the administrators performed no interviews with the sheriffs, failed to contact other facilities, and failed to conduct any internal surveys before implementing the policy, which inevitably led to male deputies being denied the ability to perform certain job functions. Employers who make personnel decisions based upon BFOQ should ensure that the policies and procedures are based on a reasoned, and well-supported decision-making process so as to avoid any potential discrimination claims.

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