Hardin v. Stynchcomb
| Citation | 691 F.2d 1364 |
| Decision Date | 22 November 1982 |
| Docket Number | No. 80-9000,80-9000 |
| Parties | 30 Fair Empl.Prac.Cas. 624, 30 Empl. Prac. Dec. P 33,176 Mary Delia Russaw HARDIN, et al., Plaintiffs-Appellants, v. Leroy N. STYNCHCOMB, 1 etc., et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Donald P. Edwards, Atlanta, Ga., Charles Guerrier, Cleveland, Ohio, for plaintiffs-appellants.
Richard H. Sinkfield, Rogers & Hardin, Atlanta, Ga., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Georgia.
Before VANCE, KRAVITCH and CLARK, Circuit Judges.
Mary Delia Russaw Hardin, a resident of Fulton County, Georgia, applied for a position as Deputy Sheriff I with the Sheriff's Department of Fulton County. When her application was rejected she filed a class action alleging that Leroy N. Stynchcombe, Sr., the Sheriff of Fulton County, the Sheriff's Department and the directors and members of the Fulton County Personnel Board (Personnel Board) engaged in discriminatory employment practices in violation of Title VII, 42 U.S.C. Sec. 2000e et seq., of 42 U.S.C. Sec. 1983 and of the fourteenth amendment of the United States Constitution. Hardin alleges that defendants have discriminated against her and other similarly situated women by failing to consider them for employment as deputy sheriffs and by establishing and maintaining sexually segregated job classifications that unjustifiably exclude qualified females from jobs and job opportunities solely because of their sex.
In August 1975 the Fulton County Sheriff's Department announced seven vacancies for Deputy Sheriff I, an entry-level position with no physical or gender requirements listed in the job description. 2 In September 1975 Hardin took the prerequisite written examination administered by In October 1975 Hardin filed a charge of employment discrimination with the Equal Employment Opportunity Commission. She received a notice of right to sue in January 1977 and instituted an action in district court naming Stynchcombe, the Sheriff's Department and the Personnel Board as defendants. The district court certified a class of "all past, present, and future female applicants for the Fulton County civil service position of Deputy Sheriff I and Matron 6 since May 2, 1975" and bifurcated the trial to separate the issue of liability from the question of individual and class relief. Following a four day trial on the merits the district court found that Stynchcombe and the Fulton County Sheriff's Department had discriminated against Hardin on the basis of sex, 7 but that the discrimination did not violate Title VII because sex was a bona fide occupational qualification (bfoq) for the position of Deputy Sheriff I. Hardin filed a timely notice of appeal, seeking reversal of the finding that defendants' intentional discrimination was justified.
the Fulton County Personnel Board 3 and received a score of 79.47, which ranked her seventh among the seventeen applicants certified as passing the test. The list of applicants forwarded to Stynchcombe by the Personnel Board included the names of Hardin and another woman. 4 Stynchcombe, however, did not interview or consider either female applicant. When Hardin contacted Stynchcombe to find out why she was not called in for an interview he told her the Deputy Sheriff I job openings were in the male section of the jail and that he planned to hire only men to fill those positions. 5
This court has jurisdiction under 28 U.S.C. Sec. 1291 and 42 U.S.C. Sec. 2000e-5(j). Because the action was bifurcated by the district court this opinion addresses only the issue of defendants' liability for employment
discrimination, and does not reach the issue of appropriate relief.
Stynchcombe, the appointing authority in the Sheriff's Department, has an unwritten policy of initially assigning new deputy sheriffs to the county jail. 8 There are two bases for this assignment policy: Stynchcombe does not like deputy sheriffs to work in the public eye until they are issued a gun and uniform at the end of a six month probationary period; and assignment of new deputy sheriffs to the undesirable jail positions maintains department morale by reserving preferred positions for employees with more seniority. Stynchcombe also has a policy of assigning only male deputy sheriffs to work in the male section of the jail, and considers hiring female deputy sheriffs only when contact positions are available in the female section of the jail. Defendants claim that this second assignment policy serves to protect the privacy rights of the inmates. 9
The Fulton County Jail is operated under authority of the Fulton County Sheriff's In the male section of the jail the living quarters are divided into two floors of single occupancy and multiple occupancy cells. The multiple occupancy cells have communal shower and toilet facilities that are visible from the corridors. The single occupancy cells have toilet facilities but no showers, so inmates are removed from those cells at least three times a week in order to bathe. Those inmates dress and undress outside shower stalls in the presence of a custodial deputy and shower in stalls that have transparent plastic curtains.
Department. There are approximately 1,100 inmates in the male section and 50 inmates in the female section. The inmate population is highly transient, with an average stay of under one month. This is because the jail is a holding institution with a population comprised primarily of pretrial detainees, witnesses in protective custody, inmates awaiting the results of an appeal and inmates held on writs to testify or stand trial. Approximately 200 inmates have been convicted and are serving relatively short sentences or are awaiting assignment to a prison.
Approximately forty deputy sheriffs are assigned to the male section of the jail during the day. Twenty to twenty-five deputy sheriffs work the second shift and fifteen to twenty work the third shift. 10 These deputies answer the telephone, operate the television system, work on the floor among the inmate population and work in administration, supervision, supply, maintenance, recreation, hospital and food services. Deputy sheriffs are irregularly rotated among assignments. 11
Undisputed testimony indicates that the majority of positions in the jail are noncontact positions. Depending on the number of deputies assigned to a shift, two to seven work on the floor patrolling the corridors and escorting male inmates to shower facilities. 12 Deputy sheriffs assisting inmates to and from the recreation area twice a day may be called upon to conduct strip searches of inmates. 13 At least three deputy sheriffs work in the booking office on the day shift, receiving and discharging inmates. These deputies perform strip searches of inmates when floor deputies are not available for that duty, but one of the three always remains in the office while the other two conduct the searches. Male booking office deputies process female inmates, but require female deputy sheriffs to conduct the requisite strip searches. Deputies assigned to other positions within the jail apparently do not routinely perform searches of inmates or patrol the corridors. 14 In the case of emergency, however, all deputies must be available to maintain security and may have to strip search inmates. In addition to the deputies working in the male section of the jail on each shift two deputy sheriffs work in the female section.
One female deputy sheriff and approximately sixty male deputy sheriffs work outside the jail in the courthouse, the juvenile court, and the warrant cars. 15
Title VII prohibits employment discrimination, which is "one of the most deplorable forms of discrimination known to our society, for it deals not with just an individual's sharing in the 'outer benefits' of being an American citizen, but rather the ability to provide decently for one's family in a job or profession for which he qualifies or chooses." Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 (5th Cir. 1970), quoted in Rowe v. General Motors Corp., 457 F.2d 348, 354 (5th Cir. 1972). The Act was designed to prohibit both overt discrimination and practices that are fair in form but discriminatory in operation. Pullman-Standard v. Swint, --- U.S. ----, ----, 102 S.Ct. 1781, 1784, 72 L.Ed.2d 66 (1982); Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). While either the disparate treatment or disparate impact theory may be applicable to a particular set of facts, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977), the district court analyzed this case under the theory of disparate treatment. 16 In a disparate treatment case an employer is accused of simply treating some people less favorably than others because of their race, color, religion, sex or national origin. 17 Id.
Stynchcombe's policy of assigning new deputies to work in the county jail where almost all positions are reserved for males all but eliminates the opportunity of women to gain employment with the Sheriff's Department. 18 This court finds that as a matter of law the evidence produced by defendants is insufficient to sustain their bfoq defense. The conclusion of the district court to the contrary is clearly erroneous. See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 233 (5th Cir. 1976); Fed.R.Civ.P. 52(a).
8] In defense of this overt discrimination defendants assert that the challenged assignment policies are permitted by section 703(e) of Title VII, 42 U.S.C. 2000e-2(e), which allows sex based discrimination when sex is a bona fide occupational qualification. 19 Section 703(e) provides "only the narrowest of exceptions to the general rule...To continue reading
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