Las Vegas POA

‘Two-Female’ Policy Upheld

Written on 06/05/2021
Will Aitchison

Shonda Million was a corrections officer for the Warren County Jail in Ohio. The Jail is operated by the Sheriff’s Office. It houses minimum, medium, and maximum security adult inmates of both sexes. Between September 2012 and August 2015, the Jail employed 17–23 female officers and roughly 33–35 male officers, not counting supervisors. The Jail has four male housing units and one female housing unit, known as C-Pod. C-Pod has two common areas separated by a glass control booth and, in total, contains roughly 30–35 cells.

At least two posts must be filled for each shift assignment in C-Pod: the “control-booth” and “rover” positions. The control-booth officer observes the common areas, aided by monitors, and may be either male or female. The rover patrols the pod, delivers meals and mail, monitors inmates when they are out of their cells, and performs a visual security check of each cell every 59 minutes.

Rovers patrol every part of a pod, in­cluding showers and bathrooms. Because male officers are not allowed to observe female inmates disrobed and may not enter C-Pod’s shower and bathroom areas with­out first announcing their intent to do so, only females are permitted to work as rovers in C-Pod. Task assignments for a given shift (such as the rover or control-booth duty) rotate every day and are not separate job positions. These rotating task assignments do not affect an officer’s promotional op­portunities, pay, benefits, or seniority.

The Jail required at least two female corrections officers to work every shift. As a result, female officers sometimes had to work forced, female-only overtime and received unequal priority compared with male coworkers when bidding for shifts.

Million challenged this policy as dis­criminatory in several internal grievances, beginning in 2012, and a 2013 charge with the Equal Employment Opportunity Com­mission. From March 2014 to December 2015, the Jail disciplined her several times, audited her internet usage, initiated several sick-leave reviews, and revoked her position as a “field training officer.” Believing these actions were taken in retaliation for her discrimination complaints and would continue, she submitted a resignation letter in late December 2015 and worked her last day in early January 2016.

She then sued the County alleging dis­crimination and retaliation. A federal trial court granted the Jail’s motion for summary judgment and dismissed Million’s claims on the basis that the Jail established its “bona fide occupational qualification” (BFOQ) defense, and Million failed to show that she suffered a “materially adverse action.” Million appealed to the Sixth Circuit Court of Appeals.

At the heart of the case was whether the Jail’s “two-female” policy was a BFOQ. The appeals court found that it was, noting “when a prison employer asserts a BFOQ de­fense, courts review the operative decisions with deference, provided those decisions result from a reasoned decision-making process. Although the decisions of prison officials are not accorded as much def­erence in Title VII cases as they are in constitutional cases, their judgments still are entitled to substantial weight when they are the product of a reasoned deci­sion-making process, based on available information and experience.

“Warren County has established all three elements of the BFOQ defense. War­ren County had a basis in fact to believe that the two-female policy was reasonably necessary to the normal operation of its business. First, the Jail requires at least one female officer to work as C-Pod rover each shift, while another must be available to process female inmates when they shower in/out upon arrival. Second, the Jail requires two female officers to work each shift to facilitate strip searches of female inmates. This latter justification clearly satisfies the first BFOQ element. Warren County’s strip search justification has two premises, and Million does not dispute either of them: (1) under Ohio law, strip searches may only be performed (or witnessed) by someone of the same sex as the person being searched, and therefore only female officers may perform strip searches on female inmates; and (2) the Jail requires two guards to perform all strip searches to promote safety and documentation.

“To establish the second BFOQ ele­ment, Warren County must prove that its two-female policy relates to the essence, or to the central mission of the Jail’s business. This element is easily met. Sheriff Sims testified that the Jail’s gender-based policies promote the Jail’s goals of security, safety, privacy, and risk management. The goals of security, safety, and privacy can justify gender-based assignments in correctional facilities.

“Third, there are no reasonable alter­natives to the sex-based practice at issue. In light of Million’s concession that the Jail’s strip search justification is necessary, we find that this element has been met, also. Million does not dispute that the Jail requires two guards to perform the gender-sensitive task of strip searches, nor does she dispute that the Jail must comply with relevant state law.”

Million v. Warren County, 2021 WL 1289605 (6th Cir. 2021).

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