Bagley v. Watson, Civ. No. 80-573FR.

• Decision Date: 04 July 1983
• Docket Number: Civ. No. 80-573FR.
• Citation: 579 F. Supp. 1099
• Parties: Nedra BAGLEY and Janice Derr, Plaintiffs, v. R.J. WATSON, Assistant Director, Department of Human Resources, Administrator of Corrections; G.E. Sullivan, Superintendent, Oregon State Correctional Institution; Hoyt C. Cupp, Superintendent, Oregon State Penitentiary; and Department of Human Resources, Corrections Division, State of Oregon; Defendants.
• Court: U.S. District Court — District of Oregon

579 F. Supp. 1099

Nedra BAGLEY and Janice Derr, Plaintiffs, v. R.J. WATSON, Assistant Director, Department of Human Resources, Administrator of Corrections; G.E. Sullivan, Superintendent, Oregon State Correctional Institution; Hoyt C. Cupp, Superintendent, Oregon State Penitentiary; and Department of Human Resources, Corrections Division, State of Oregon; Defendants.

Civ. No. 80-573FR.

United States District Court, D. Oregon.

July 4, 1983.

J. Bradford Shiley, Portland, Or., Alice L. Dale, Or. Public Employes Union, Salem, Or., for plaintiffs.

Dave Frohnmayer, Atty. Gen., William F. Hoelscher, Asst. Atty. Gen., Salem, Or., for defendants.

OPINION AND ORDER

FRYE, District Judge:

Defendant State of Oregon has moved for a partial summary judgment asking the court to rule on two limited issues: (1) whether male prisoners in the state correctional institutions have state and/or federal constitutional rights to freedom from clothed "pat-down" frisk searches, and/or visual observations in states of undress, by female Correctional Officer Guards, and if so, (2) whether such constitutional rights constitute a bona fide occupational qualification (BFOQ) within the meaning of Title VII of the Civil Rights Act of 1964, which would permit the state to employ "males only" in a certain number of guard positions having duties which cannot be accommodated to exclude "pat-down" frisk searches and visual observation of prisoners in states of undress.

All of the parties agree that after the court has enunciated the extent of the male prisoners' constitutional rights and the standing of those rights as BFOQ under Title VII, that settlement negotiations can resolve most of the remaining disputes.

The parties have filed a "Stipulation of Fact;" the defendants have submitted the Affidavit of Dr. Lois Shawver; and both parties have asked the court to assume that there are certain guard positions which cannot be accommodated to exclude female correctional officer guards from performing "pat-down" frisk searches and visual observation of male prisoners in states of undress.

STIPULATION OF FACT

1. The State of Oregon maintains an all male maximum security correctional institution at the Oregon State Penitentiary, an all male minimum security correctional institution at the Oregon State Correctional Institution and an all female correctional institution at the Women's Correctional Center.

2. Each correctional institution employs both male and female guard employes classified as "Correctional Counselors."

3. Each correctional institution has identified each guard position as either "male only" or "either sex" depending on the regularly assigned duties of the individual position. While plaintiff and defendant are in dispute as to whether all "male only" positions can or cannot be accommodated to permit the regular duties of the positions by employes of "either sex," it is agreed that some "male only" positions regularly require the employes in these positions to perform clothed "pat-down" or frisk searches of the anal-genital area of male prisoners and to observe such male prisoners in states of undress while using showers and toilet facilities.

4. In the case of Sterling v. Cupp, 44 Or.App. 755, 607 P.2d 206 (1980), the Oregon Supreme Court confirmed in part a Circuit Court injunction forbidding the defendants from permitting female guard employes from regularly making "pat-down" or frisk searches of the analgenital area of male prisoners.

5. Defendants have not employed female persons in positions designated as "male only."

6. The affidavit of Dr. Lois Shawver is submitted by the parties to address the issue of inmate privacy and the effect of female guards working in all male penal institutions. The parties agree the doctor would so testify if called.

A portion of the Affidavit of Dr. Shawver is incorporated in this opinion as follows:

Through my experience dealing with inmates, it is my belief that women counter the development of brutish and violent prisons. When women are not present, the pecking order of the prisoners tends to be a simple function of the ability of one prisoner to intimidate and subjugate another. Women can introduce a new and softening element in the construction of this pecking order. When women are present, the most admired prisoner is often the one whom others perceive to be the most respected by women. In a prison which includes women staff, prisoners will often boast of a woman officer's, or a woman staff person's, attention. Similarly, male prisoners will often admonish each other to behave more gentlemanly, and women often report that they can reduce violent encounters by gentler means than are effective by male correctional officers. In this regard, it is noteworthy that in the decade or so that women have worked in male prisons, we have learned that the suppressed sexuality of the prisoners does not manifest itself with the attempt to rape and subjugate the women staff. There are generally, in fact, less assaults on women than there are on men (cf. Holeman and Krepps-Hess). When sexual assaults do occur, they are almost always in the form of pinching and touching, pale shadows of the sexual aggressions some male prisoners force on other male prisoners. It was once feared that the presence of women would excite untempered passions in the prisoners, but the social experiment has now been conducted and it is clear that, if anything, women reduce the violent tensions in male prisons rather than contribute to them.

On the more obvious side, my clinical experience and review of available studies has caused me to believe that women clearly contribute to the normality of the prison. Prisoners are often people who have great difficulty dealing with women, especially when they do not have an intimate relationship with that woman. Their rehabilitation will not, therefore, be fostered by our creating artificial environments without women. To do this, is merely to ignore the problem during the time of incarceration. The period of incarceration would be a time for men to learn to relate to women in a nonaggressive and non-intimate way. Such a capacity could only serve to enhance their chances for a successful parole adjustment.

My clinical experience and review of the available surveys also indicate that only a minority of men in prison report that they feel women in the housing units either invades their privacy or otherwise makes them feel uncomfortable....

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... To say that the majority of prisoners are comfortable with women in the housing units does not imply that it is impossible to imagine situations in which female officers would pose a threat to the majority of prisoners. It might possibly be that the men who report feeling comfortable have learned methods of protecting their modesty (i.e., by timing their use of the toilet or by taking a towel to the shower). One female officer I talked with who has worked many years in the housing units of male prisons informed me that she has never seen a prisoner naked, that it has always been possible for prisoners to protect their modesty.

In summary, the majority of men in male prisons seem relatively comfortable with women in their housing units. We can assume this is true because the majority of men find they are not that easily embarrassed by the presence of women because the women who are present conduct themselves professionally to protect men's sense of dignity, or because the men have acquired methods of preserving their modesty, or for some combination of these factors.

It is my professional opinion that a persons' (sic) need for privacy around issues of nudity and excretion is a rather direct function of one's personal modesty regarding these issues. The person who is outraged at "invasions of privacy" (regarding nudity and excretion) is universalizing his personal modesty, for unless a community is generally modest in this way, the "right to privacy" is an over-glorified and useless concept. One cannot imagine a nudist colony, or a group of naked aborigines, getting very excited about their "right to privacy" regarding nudity.

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As a society, we have established a minimum level of protected modesty. We are offended, for example, if surveillance procedures in department stores plant secret cameras in their dressing rooms. And we are offended when voyeurs peek in windows. But the need to protect ourselves in this way is based on a recognition of some people's desire to look. Modesty is self-consciousness in the fact (sic) of real or imagined interest on the part of others in looking.

And so it is that many people lose their self-consciousness when they become convinced other people are not very interested in looking. Embarrassed modesty can subside in the presence of a person, for example, a nurse or a doctor, who evidences no personal interest in looking. Perhaps this is why a recent study (Holland, et al., 1979), indicated that male felons preferred female nurses over male nurses. When one learns that certain people are capable of seeing you without being fascinated or personally interested in seeing you, one's self-consciousness, or modesty fades. I think the process works both ways. When people like nurses learn that their patients are not self-conscious, they lose the style of looking that makes their patients self-conscious. Self-consciousness is a contagious state of affairs.

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According to Kissel and Siedel, the majority of men who claim that having women in the housing units constitutes an invasion of their privacy are, upon closer inspection of their complaints, merely complaining about the inconvenience caused by having to maintain their privacy, largely, as they see it, for the needs of the women officers. Such men might enjoy lounging in their underwear and the women officers create some hindrance to that. It is my belief that it is misleading to label concern with this inconvenience a concern with women

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