By Harold S. Berman J.D.
Without the requirement that certain positions at the women’s prison be staffed by women, a jury could find the employee would not have faced discipline, would not have been prohibited from transferring, and/or would not have been terminated.
A female corrections officer who was disciplined for overtime, attendance, and behavioral infractions, prohibited from transferring, and then terminated, can proceed with her Title VII sex discrimination claim, a federal district court in Michigan ruled. Denying her employer’s summary judgment motion, the court found its Bona Fide Occupational Qualification Policy was facially discriminatory and the actions taken against the officer plausibly could have resulted from sex discrimination (Kasprzycki v. Michigan Department of Corrections, July 30, 2019, Goldsmith, M.).
Female-only positions. The employee worked in a women’s prison administered by the Michigan Department of Corrections. Following a settlement with the U.S. Department of Justice in 2000—in the wake of alleged sexual assault and abuse of female inmates by male staff—the department agreed that only female corrections officers would supervise female inmates whenever they were undressed. The department subsequently designated 250 positions in female prisons to be filled only by female officers, which the Sixth Circuit later determined was permissible under Title VII as a bona fide occupational qualification.
The female-only designations caused staffing issues, and the officer testified that female prison employees often were mandated to work overtime after their regularly scheduled shifts. She estimated she was ordered to work overtime once or twice each week, but that male officers rarely were required to work overtime.
Transfer freeze. Under the collective bargaining agreement, officers could transfer to another correctional facility under certain circumstances. However, since 2005, the women’s prison had implemented a transfer freeze, which significantly impacted the ability of female officers to transfer. The CBA also stipulated that certain transfers could be implemented only if the employee had no disciplinary record or unsatisfactory rating during the preceding two years.
Discipline and termination. The officer was disciplined several times during her tenure for refusing to work mandatory overtime due to health and childcare issues, and for unsatisfactory time and attendance. In February 2015, she fell asleep during her shift, for which she received a suspension and was placed on a last chance agreement. In October, she failed to report a coworker she witnessed move a video camera in a staff room, and in December, was found reading a magazine while on duty. Because she was on the last chance agreement, the department terminated her.
The employee sued the department and the State of Michigan, alleging that the department’s practices of denying her transfer requests while allowing male officers to transfer, and disciplining her but not similarly situated male officers, constituted sex discrimination under Title VII.
Sex discrimination. The court refused to dismiss on summary judgment the officer’s sex discrimination claim, finding that the department’s Bona Fide Occupational Qualification Policy was facially discriminatory because it required certain positions at the women’s prison to be staffed by women. There was evidence the officer not only was challenging the impact of the policy on discipline and transfer, but the policy itself.
A reasonable jury could find that her discipline and inability to transfer resulted from sex discrimination, and that absent the requirement that certain positions at the prison be staffed by women, she would not have been disciplined, barred from transferring, or terminated. Although the department argued that the officer could not transfer and was terminated because she was disciplined and not because of any gender-based discrimination, she countered that at least some of her discipline resulted from the BFOQ policy.
Overtime requirement. The officer was twice disciplined for refusing to work overtime, which the prison required of women far more than men because of the need for women to fill certain positions. She also testified she fell asleep at work only because she was working her second eight-hour shift after being required to work overtime. Further, she claimed, her discipline for attendance issues resulted from her need to take “stress leave” because the mandatory overtime requirements affected her stress and anxiety.
Additionally, although “one-for-one” transfers were theoretically permitted during the transfer freeze and even with a disciplinary record, the officer was told she would need to find a female replacement. The court also noted that the need for the department to institute a transfer freeze at all resulted from its need to keep female officers at the women’s prison.
Sixth Circuit decision expanded. Although the Sixth Circuit had held in 2004 that gender constituted a BFOQ for 250 officers in female prisons, its holding was limited to those 250 positions, and the Department expanded the scope of the BFOQ policy in 2009 to include additional positions.
Exhaustion. The court also rejected the department’s argument that the officer did not exhaust her administrative remedies required to bring a Title VII claim. Although the department claimed the officer’s EEOC charge did not state that the BFOQ policy caused any discrimination, inability to transfer, or termination, her EEOC charge did state that the cause of discrimination was based on sex, retaliation, and “other.”
The charge also stated that officers at the women’s prison were overworked, the prison often required her to work 17 hours straight for six consecutive days, she was subjected to different terms and employment conditions because of her sex, and female corrections officers were required to continue working while male officers were not. The court found that her allegations in her EEOC charge effectively articulated a claim that she was treated differently because of the BFOQ policy, even if she did not explicitly state such a claim.
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