Forts v. Ward
| Decision Date | 08 May 1980 |
| Docket Number | Nos. 495,562,AFL-CIO,D,s. 495 |
| Citation | 621 F.2d 1210 |
| Parties | 27 Fair Empl.Prac.Cas. 1587, 23 Empl. Prac. Dec. P 30,935 Iola FORTS, Paula Herbert, Cynthia Hall, Laura Carey, Linda Moroon, Carol Crooks, Sharon Silman, Yvonne Lee, Sheila Liles, Deborah Lewis, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees-Cross-Appellants, v. Benjamin WARD, Individually and as Commissioner of Correctional Services, Frances Clement, Individually and as Superintendent, Bedford Hills Correctional Facility, Dorothy Reid, Individually and as Deputy Superintendent for Security, Bedford Hills Correctional Facility, Melvin H. Osterman, Jr., Director of Employee Relations for the State of New York, Defendants-Cross-Appellees; Security Unit Employees Council 82, American Federation of State, County and Municipal Employees,("Council 82"), Carl F. Gray, Executive Director, Council 82, Clayton DeFayette, President, Council 82, Defendants-Appellants-Cross-Appellees; Local 1265 of Council 82, A. V. Yarell, President, Local 1265, Defendants. ockets 79-2093, 79-2098. |
| Court | U.S. Court of Appeals — Second Circuit |
Richard R. Rowley, Albany, N. Y. (Rowley & Forrest, P. C., Albany, N. Y., on the brief), for the union appellants-cross-appellees.
Stephen M. Latimer, Burlington, N. J. (Camden Regional Legal Services, Inc., Burlington, N. J., on the brief), for the inmate appellees-cross-appellants.
Barry R. Fertel, Deputy Asst. Atty. Gen., New York City , for the State officer cross-appellees.
Before TIMBERS, VAN GRAAFEILAND and NEWMAN, Circuit Judges.
The modern sensitivity to the significance of gender in American life and law has made it inevitable that cases will arise where gender-based legal contentions conflict. This case arises in a context where that conflict can be expected to recur with some frequency: privacy rights versus employment rights. Members of one sex assert a privacy right not to have their unclothed bodies viewed by members of the opposite sex. At the same time, members of one sex assert an employment right not to be discriminated against in job opportunities because of their gender. In this case, the privacy right is asserted by female prisoners, and the employment right is asserted by male prison guards, but the potential conflict of rights transcends the particular alignment of genders. Indeed, in this very case the challenged discrimination against the male guards is alleged to result in the impairment of employment rights of female guards. Resolution of such cases requires a careful inquiry as to whether the competing interests can be satisfactorily accommodated before deciding whether one interest must be vindicated to the detriment of the other. Fortunately this case is one where that inquiry yields a result that respects both privacy and employment rights.
The case is here on appeal and cross-appeal from an order of the United States District Court for the Southern District of New York (Richard Owen, Judge), which seeks to protect the privacy interests of women inmates at the Bedford Hills Correctional Facility ("Bedford Hills"), a women's prison operated by the State of New York. Forts v. Ward, 471 F.Supp. 1095 (S.D.N.Y.1978). The order, id. at 1102-03, imposed various requirements, including a prohibition on the assignment of male guards to certain duties in the infirmary and housing units of the prison. The suit was brought by ten women inmates against State correction and personnel officials ("State defendants") and the statewide union 1 representing correction officers and two union officials ("union defendants"). The State defendants have not appealed. The union defendants have appealed only to challenge the portion of Judge Owen's order that enjoins male guards from assignment to duties requiring observation of female inmates through the windows of their cell doors during nighttime hours. The plaintiffs have cross-appealed to challenge the denial of their motion for class certification. 2
The background and procedural history of this litigation require some explanation. In February, 1977, pursuant to a change in state policy, 3 male correction officers were assigned for the first time to duties within the living and sleeping corridors of Bedford Hills. Several months later, the inmate plaintiffs commenced this action, pursuant to 42 U.S.C. § 1983, on behalf of themselves and an alleged class of approximately 400 other women inmates at Bedford Hills. 4 Their complaint alleged that the assignment of male guards to areas of the prison where inmates were involuntarily exposed to view while partially or completely unclothed denied the inmates their constitutional right to privacy. In June, 1977, the District Court granted the plaintiffs' motion for a preliminary injunction against assignment of male correction officers to parts of the housing and hospital units of Bedford Hills. Forts v. Ward, 434 F.Supp. 946 (S.D.N.Y.1977). Upon appeal by all defendants, this Court reversed and remanded for an evidentiary hearing on the injunction motion, having concluded that disputed issues of fact existed. Forts v. Ward, 566 F.2d 849 (2d Cir. 1977).
Upon remand, Judge Owen combined the hearing on the preliminary injunction with the trial on the merits and held a twelve-day non-jury trial in December, 1977 and January, 1978. Forty-three witnesses testified, and Judge Owen, accompanied by counsel, made a personal inspection of Bedford Hills. At Bedford Hills each inmate occupies an individual solid-walled cell measuring seven feet by ten feet and containing a bed and a toilet. Each cell has a solid door, controlled by guards at the end of each corridor. Each cell door has a clear glass window measuring six inches by nine inches. The interior of the cell, including the bed and the toilet, is visible to anyone in the corridor looking through the cell door window. Prison rules permit an inmate during the day to request that her cell door be closed and allow her to cover the cell door window for fifteen-minute intervals. At night the door is kept closed, but the window may not be covered.
On November 20, 1978, Judge Owen issued his decision, Forts v. Ward, supra, 471 F.Supp. 1095. He found that female inmates, while completely or partially unclothed, had been subjected to "a certain amount of viewing" by male correction officers and that such incidents were "certain to occur again with some frequency" given the physical setup and rules of Bedford Hills, id. at 1097-98. The Court noted that though an "individual's normal right of privacy must necessarily be abridged upon incarceration" in the interest of prison security, id. at 1098, inmates do retain some residual privacy rights, id. at 1099. With respect to the guards' interest in equal job opportunity, the Court found "no dispute that the job of a correction officer at Bedford Hills can be equally well performed by any qualified and trained man or woman" but concluded that "equal job opportunity must in some measure give way to the right of privacy." Ibid. Specifically, the Court ruled that the women inmates were entitled to be protected from being viewed by male guards when they were partially or completely unclothed while receiving medical treatment at the prison hospital or while showering, using toilet facilities, or sleeping in the housing units. The opinion contemplated protecting the inmates' privacy by a combination of changes in guards' work assignments and minor structural alterations.
Judge Owen found no reason to bar male guards from assignment to the housing corridors during the daytime hours since prison rules permitted an inmate to protect her privacy during those hours by covering the cell door window for up to fifteen-minute intervals while dressing or attending to personal needs. However, he found that because prison rules prohibited covering the door windows during nighttime hours, the assignment of male guards to the corridors during those time periods violated the inmates' right of privacy. 5 Id. at 1100-1101. Judge Owen also found that the invasions of privacy occurring while inmates were showering or changing into and out of their clothes could be easily corrected by installation in the shower facilities of appropriate screens. Id. at 1101.
Rather than immediately issuing an order implementing his opinion, Judge Owen directed the State defendants to submit a proposed order that, "while maximizing equal job opportunity, will afford each inmate the minimal privacy to which the court concludes she is entitled." Id. at 1102. The proposed order submitted by the State defendants suggested two solutions to prevent viewing through the cell door window during nighttime hours: issuing to each inmate, upon request, a set of one-piece pajamas, commonly known as "Dr. Denton's," and changing the prison rules to permit inmates to cover their cell door windows at night for the same fifteen-minute intervals permitted during the daytime. The order entered by Judge Owen on April 12, 1979 rejected both of these suggestions in favor of an absolute prohibition against the assignment of male correction officers to duties during the nighttime "which require them under normal circumstances to observe female inmates through the windows of each inmate's cell." Forts v. Ward, supra, 471 F.Supp. at 1102. The rationale for this change was explained to the parties by Judge Owen at a conference held in late February, 1979:
. . . I do not think it appropriate to say to a woman, "In order to protect your privacy, you have got to be ensconced in a two-legged bag over the night or give up the right to privacy. It seems to me that she has the right to select appropriate sleep wear . . . because I don't see any prison necessity for a particular designation of sleep wear and I...
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