Anderson v. City and County of San Francisco: Ninth Circuit Rules on "Bona Fide Occupational Qualification" Exemption to Title VII Prohibition on Sex Discrimination

In Anderson v. City and County of San Francisco, ___ F.3d ___, (9th Cir. 7/2/14), the Ninth Circuit considered the "bona fide occupational qualification" (BFOQ) exception to Title VII's prohibition of sex discrimination. 

Plaintiffs, current and former deputies of the San Francisco Sheriff’s Department (“SFSD”), appeal the district court’s order granting summary judgment to the City and County of San Francisco (the “County”) on their challenge to SFSD’s policy prohibiting male deputies from supervising female inmates in the housing units of SFSD’s jails. The district court concluded that SFSD’s policy did not violate Title VII’s prohibition on sex discrimination because it fell within the statute’s “bona fide occupational qualification” exception, 42 U.S.C. § 2000e-2(e)(1). We reverse the district court’s grant of summary judgment to the County on the sex discrimination claims and vacate the denial of summary judgment to plaintiffs on those claims.

Slip op. at 5. 

Title VII permits employers to discriminate on the basis of sex where sex is a BFOQ. 

To justify discrimination under the BFOQ exception, an employer must “prove by a preponderance of the evidence: 1) that the job qualification justifying the discrimination is reasonably necessary to the essence of its business; and 2) that [sex] is a legitimate proxy for the qualification because (a) it has a substantial basis for believing that all or nearly all [men] lack the qualification, or . . . (b) it is impossible or highly impractical . . . to insure by individual testing that its  employees will have the necessary qualifications for the job.”

Slip op. at 13. 

While judgments by prison administrators are entitled to some deference in court, such decisions must be based on a “reasoned decision-making process, based on available information and experience.” A material issue of genuine fact arose as to whether the Sheriff's decision here met that standard. Slip op. at 14-18. 

The County set forth four rationales to justify its sex-based policy: (1) protecting female inmates from sexual misconduct by male deputies; (2) maintaining jail security; (3) protecting inmate privacy; and (4) preserving the ability of female inmates to rehabilitate. 

Each such rationale related to a job qualification "reasonably necessary to the essence of" operating SFSD's jails: (1) not posing a threat to the safety of female inmates due to a likelihood of perpetrating sexual misconduct against them; (2) not posing a threat to jail security; (3) not posing a threat to female inmates’ privacy; and (4) not posing a threat to female inmates’ ability to rehabilitate. Each such rationale thus satisfied the first prong of the BFOQ exemption test. Slip op. at 18-19. 

To satisfy the second prong of the exemption, the County would have to show that excluding all male deputies is a “legitimate proxy” for excluding deputies who lack one of these four qualifications. The County could do so by showing that there is: (a) “a substantial basis for believing that all or nearly all [men] lack the qualification”; or (b) “it is impossible or highly impractical . . . to insure by individual testing” whether or not a male deputy has the qualification. The County did not do so on the record before the Court. Slip op. at 20-25. 

The opinion is available here.