Iowa Dept. of Social Services, Iowa Men's Reformatory v. Iowa Merit Employment Dept.

• Decision Date: 21 December 1977
• Docket Number: No. 59913,59913
• Citation: 261 N.W.2d 161
• Parties: 16 Fair Empl.Prac.Cas. (BNA) 923, 16 Empl. Prac. Dec. P 8263 IOWA DEPARTMENT OF SOCIAL SERVICES, IOWA MEN'S REFORMATORY, Appellant, v. IOWA MERIT EMPLOYMENT DEPARTMENT, Iowa Merit Employment Commission, and Cynthia Gunther, Appellees.
• Court: Iowa Supreme Court

Page 161

261 N.W.2d 161

16 Fair Empl.Prac.Cas. (BNA) 923, 16 Empl. Prac. Dec. P 8263

IOWA DEPARTMENT OF SOCIAL SERVICES, IOWA MEN'S REFORMATORY, Appellant, v. IOWA MERIT EMPLOYMENT DEPARTMENT, Iowa Merit Employment Commission, and Cynthia Gunther, Appellees.

No. 59913.

Supreme Court of Iowa.

Dec. 21, 1977.

Richard C. Turner, Atty. Gen., and Stephen C. Robinson, Special Asst. Atty. Gen., for appellant.

Larry L. Seckington, Des Moines, for appellee Iowa Merit Employment Commission.

Gordon E. Allen, Des Moines, for appellee Gunther.

En banc.

HARRIS, Justice.

This dispute between two state administrative agencies arose from the attempt of Cynthia Gunther (the intervenor) to raise her employment classification at the men's reformatory. The Iowa department of social services, men's reformatory (the department) has the ultimate responsibility for the operation of the men's reformatory at Anamosa. The Iowa merit employment department, Iowa merit employment commission (the commission) is charged with enforcing the Merit System Act (ch. 19A, The Code). The controlling question is whether a bona fide occupational qualification exception (BFOQ) exists which prevents a woman employee from undertaking the duties of a reformatory corrections officer II (CO II). The trial court determined no BFOQ existed for the position. The trial court ordered the intervenor to be placed in the CO II classification. At the same time the trial court ordered, in view of the intervenor's status as a woman, that she be exempted from certain duties routinely required of men in the same classification. We agree there are certain duties routinely required of a CO II which, as a practical matter, are impossible for a woman to perform. We believe such impossibility renders the CO II classification a proper subject for a BFOQ. We reverse the trial court.

The most significant facts in this dispute are (1) that all inmates of the Iowa men's reformatory are males, and (2) the intervenor is female.

Under the statutory scheme for punishment of public offenders in Iowa it is contemplated that the older criminals and recidivists should be committed to the men's penitentiary at Fort Madison. § 789.16, The Code. The men's reformatory at Anamosa is generally considered a medium security facility. On the other hand the legislature provided a scheme for ready transfers between the penitentiary and the reformatory. §§ 246.12, 246.13, 246.14, The Code. Thirty-five percent of inmates at the reformatory have been convicted of crimes of violence, including sex offenses. Clearly the inmate population at the reformatory has a far greater tendency to violence than does the general population. The inmates are deprived of normal sexual experiences. Many of them react spontaneously with little thought of consequences.

The correction officers who make up the operating personnel of the reformatory are of four classifications. The first classification is that of correction officer I (CO I). This is generally the beginning classification for a new officer at the reformatory. A CO I rotates through various tasks on a somewhat limited basis. A number of officers, by reason of age, physical condition, or perhaps for various other reasons are never elevated beyond the CO I classification.

CO II's are subject to general duty throughout the institution. They can perform all the functions of a CO I and significant additional tasks such as riot control, patrol of cell blocks, and superintending inmates' bath and shower rooms. CO II's conduct frequent "pat searches" and "strip searches" of the inmates. While patrolling cell blocks CO II's are in full view of the cells themselves. They can, and frequently do, view the inmates' toilet. In general CO II's are in much closer and direct personal contact with the inmates than are CO I's. The record is clear a female CO II would be in very real danger of sexual attack.

Some CO II's advance to higher classifications as CO III and CO IV officers. Some CO II's do not so advance. With each advancement authority and pay increase.

Petitioner is a four-year college graduate. Except for her sex and lack of institutional experience there is no question that, with additional training, she would possess the qualifications of a CO II officer. When employed as a CO I officer she was assigned duty in the visitors rooms, central control, and tower watch. Eventually she sought advancement to CO II which will cause her to be rotated through all assignments. Because some assignments as a CO II officer would be impractical for any woman the department refused to promote her. The department also refused to create a distinct classification for her by calling her a CO II and omitting the duties she could not perform. Petitioner thereafter appealed to the merit commission which ruled in her favor. The commission directed that she be given the CO II classification but in effect created a new and distinct classification by exempting her from "pat" or "strip" searches and from assignments to the cell blocks.

On appeal the trial court affirmed the merit commission "* * * with the common sense exemption noted both by the agency below and the Reynolds court (Reynolds v. Wise, 375 F.Supp. 145, (N.D.Tex.)) that these officers should not be placed in job duties that may reasonably be expected to breach inmates justified expectations of personal privacy." The reformatory appealed to this court. There is no cross-appeal.

I. All parties concede the intervenor cannot perform all tasks routinely assigned to male CO II's. In her brief and argument intervenor states:

"Admittedly there are certain job duties and job functions which the intervenor cannot perform either because of inmate privacy rights, or the necessity to avoid compromising positions. However, that is not to say that the intervenor cannot be promoted through the classification system. * * *." (Emphasis added.) The commission eliminated from the intervenor's duties "* * * assignment to dormitories (cell houses?) or shakedown * * * to insure privacy."

For reasons which will appear we agree and hold the intervenor's womanhood prevents her from performing all CO II functions at the men's reformatory.

II. The parties point to provisions of different but somewhat related Code chapters. The department points to chapter 601A, The Code (Iowa Civil Rights Act of 1965). Section 601A.6(1)(a) provides in part:

"It shall be an unfair or discriminatory practice for any * * * (p)erson to refuse to hire, accept, register, classify, or refer for employment, to discharge an employee, or to otherwise discriminate in employment against any applicant for employment or any employee because of * * * sex * * * unless based upon the nature of the occupation (the BFOQ exception). * * *." (Emphasis added.)

The commission points to chapter 19A, The Code, (the Merit System Act). Section 19A.18 provides:

"No person shall be appointed or promoted to, or demoted or discharged from, any position in the merit system, or in any way favored or discriminated against with respect to employment in the merit system because of his * * * sex * * *." Chapter 19A contains no BFOQ clause.

Section 19A.22 provides:

"The provisions of this chapter, including but not limited to its provisions on employees and positions to which the merit system apply, shall prevail over any inconsistent provisions of the Code and all subsequent Acts unless such subsequent Acts provide a specific exception from the merit system."

The commission argues the absence of a BFOQ from chapter 19A combined with the provisions of 19A.22 show the legislature intended to deny any BFOQ exemption for Iowa merit employees such as the intervenor.

Before addressing the commission's contention a threshold problem should be mentioned. We have noted the commission held for the intervenor but excepted her from performing the duties which would form the basis for the BFOQ. The commission's order was affirmed by the trial court. Neither intervenor nor the commission cross-appealed when the department brought this appeal. It is suggested the failure of the intervenor or the commission to cross-appeal makes it unnecessary to consider whether a BFOQ exists for any merit employees. However we believe the absence, under these circumstances, of a cross-appeal does not conclude the question. The commission could scarcely appeal from a district court's total affirmance of its own decision. Nor would we expect the intervenor to appeal from a ruling granting her CO II status and pay without any obligation to perform the duties her brief concedes she cannot perform.

Turning to the two Code chapters referred to we do not believe the legislature's failure to include a BFOQ provision in § 19A.18 indicates a total prohibition of BFOQ provisions for that chapter. We note that § 356.5(6), The Code, requires jailers "(t)o have a matron on the jail premises at all times during the incarceration of any one or more female prisoners * * * ."

We do not think the department of transportation is prohibited from hiring male attendants for male restrooms or females for female restrooms in highway rest stops. But the commission's interpretation of § 19A.18, precluding BFOQ exceptions, would make such hiring practices impossible. Similarly, we do not believe male officers could be required, for lack of a BFOQ clause, for a CO II position at the women's reformatory at Rockwell City.

In any event the absence of a BFOQ provision in § 19A.18 could not justify an unconstitutional invasion of the inmates' rights to human dignity and privacy.

Consideration of inmates' constitutional rights requires mention of another threshold question. Were the inmates' constitutional rights an issue raised in these proceedings? We think the answer is plainly yes.

The inmates' constitutional right of privacy was an issue at every step in these proceedings. In his opening statement before the commission the intervenor...