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Bone Fide Occupational Qualification Must be Applied Carefully

In the case of Ambat v. City and County of San Francisco, 757 F.3d 1017 (9th Cir. 2014), former and current sheriff’s deputies brought a case challenging the policy of the San Francisco’s Sheriff’s Department to preclude male deputies from supervising female inmates. The policy had been put in place to prevent the sexual harassment of female inmates and sexual misconduct between inmates and deputies. There had been a dozen complaints between the time period of 2001 to 2009 based on sexual misconduct or inappropriate sexual relationships existing between female inmates and the male deputies that were supervising them, although the policy change was put in place in 2006.

In 2007, more than 30 deputies joined in the suit against the City and County of San Francisco. Most of the deputies who brought the suit were female. The basis of the suit was that the policy change constituted sex discrimination under the provisions of Title VII of California’s Fair Employment and Housing Act (FEHA). The allegations that the deputies careers were harmed as a result of the policy change were based on the fact that the necessity of using female deputies to supervise female inmates limited the female deputies’ ability to participate in other job opportunities and engage in activities that could advance their careers, as well as limiting their chances at working preferred shifts or earning overtime.

At the lower court level, the City and County of San Francisco moved for summary judgment on the basis that the assignment of female deputies to work with female inmates was allowed as the sex of the deputy was a “bona fide occupational qualification” (BFOQ). The BFOQ defense is based on a limited ability for an employer to sexually discriminate against certain employees because the sex of an employee is reasonably necessary for the day-to-day operation of an employer’s business. In addition, the employer must demonstrate that there is a substantial basis for the belief that all employees of a particular sex do not possess the necessary qualification to perform the task at issue or that there is no practical way to test employees to determine if they possess the necessary qualifications. Although this is permissible in certain situations, courts are very careful in the analysis of whether the BFOQ defense should apply to a particular situation and take a hard look at the employer’s justifications. In this case, the district court granted the defendants’ motion for summary judgment and the deputies appealed the decision.

The Legal Decision

In reaching its decision, the Ninth Circuit recognized that the district court had given significant deference to the decision of the Sheriff to implement this policy. Although it acknowledged that the Sheriff was entitled to deference, the Ninth Circuit found that the Department must produce evidence that the Sheriff engaged in a thoughtful decision-making process that was informed by the evidence that was available at the time that the policy change was being considered. In reversing the decision of the district court, the Ninth Circuit determined that there was insufficient evidence to determine whether or not there was a reasoned decision-making process. These genuine issues of material fact meant that the granting of a motion for summary judgment was not appropriate in this case.

In reaching its decision, the Ninth Circuit focused on the fact that the Sheriff’s Department did not engage in reasonable activities that could have provided important information about whether relying on BFOQ was proper in this case. These actions might have included conducting surveys to determine the nature and extent of the sexual misconduct. In addition, the Sheriff failed to reach out to other departments that might have experienced similar issues of sexual misconduct between male deputies and female inmates in order to evaluate whether there were other options. Although the Ninth Circuit did not proscribe any specific course of conduct that would have demonstrated a reasoned decision-making process, it did state that other officials had undergone a more rigorous process before invoking the BFOQ justification for a policy change.

The Ninth Circuit also found that the Sheriff’s Department did not base its decision to have female deputies supervise female inmates on sound evidence. The Court of Appeals found that the Sheriff’s Department had not demonstrated that testing to determine what male deputies posed a greater risk to the female inmates was impractical. Further, there was insufficient evidence that most male deputies had the potential to engage in sexual misconduct when assigned to supervise female inmates.

Impact of the Case

This is a very interesting case, but the fact is that the BFOQ justification for a discriminatory policy is very rare. If a government agency of other employer intends to use this legal distinction to implement a policy change, it is very important to perform due diligence and ensure that it is clear that the decision-making process was based on extensive fact-gathering and careful consideration.

When making any decisions based on the sex of employees, it is critical to perform the proper analyses. In order to discuss this or other employment matters, contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside, and Los Angeles. Call (949) 375-4734.

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