Robino v. Iranon, 97-16470

• Decision Date: 03 June 1998
• Docket Number: No. 97-16470,97-16470
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 1793, 73 Empl. Prac. Dec. P 45,444, 98 Cal. Daily Op. Serv. 4218, 98 Daily Journal D.A.R. 5813 Allan M. ROBINO; David J. MacKay; Harold Ching; Thomas A. Goodman, Plaintiffs-Appellants, v. George IRANON, Director of the Department of Public Safety and Women's Community Correctional Center; State of Hawaii; Theodore Sakai, Director of the Department of Public Safety and Women's Community Correctional Center, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1109

145 F.3d 1109

76 Fair Empl.Prac.Cas. (BNA) 1793,

73 Empl. Prac. Dec. P 45,444,

98 Cal. Daily Op. Serv. 4218,

98 Daily Journal D.A.R. 5813

Allan M. ROBINO; David J. MacKay; Harold Ching; Thomas A.

Goodman, Plaintiffs-Appellants, v. George IRANON, Director of the Department of Public Safety and Women's Community Correctional Center; State of Hawaii;

Theodore Sakai, Director of the Department of Public Safety

and Women's Community Correctional Center, Defendants-Appellees.

No. 97-16470.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 1998.

Decided June 3, 1998.

Michael G.M. Ostendorp, Honolulu, Hawaii, for plaintiffs-appellants.

Gordon M. Bronson and Dale Bennett, Honolulu, Hawaii, for plaintiff-appellant.

Gary Hynds, Deputy Attorney General, Honolulu, Hawaii, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii; Samuel P. King, Senior District Judge, Presiding. D.C. No. CV-96-00486.

Before: BROWNING, BRUNETTI, and RYMER, Circuit Judges.

PER CURIAM:

Allan Robino and three other male Adult Corrections Officers ("ACOs") at the Women's Community Correctional Center ("WCCC") on the Island of Oahu appeal the district court's summary judgment for the Director of the WCCC and the State of Hawaii. We review the district court's decision de novo, and affirm. See Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.1997).

I.

The ACOs filed a sexual discrimination action, pursuant to Title VII, based on the WCCC's policy of assigning only female ACOs to six posts each of which included a First Watch position. The district court found that gender was a bona fide occupational qualification ("BFOQ") reasonably necessary to accommodate the privacy interests of the female inmates and reduce the risk of sexual conduct between ACOs and inmates. See 42 U.S.C.2000e-2(e)(1).

After a study conducted by a specially appointed task force in compliance with an EEOC settlement agreement, prison officials authorized by the Department of Personnel Services determined that the best policy to protect female inmates and to prevent allegations of sexual misconduct was to designate six posts as female-only. This professional judgment is entitled to deference. See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (prison administrators must be allowed "to adopt innovative solutions to the intractable problems of prison administration"); Torres v. Wisconsin Dep't. of Health & Social Serv., 859 F.2d 1523, 1532 (7th Cir.1988) (en banc) (the judgments of penal administrators is "entitled to substantial weight when they are the product of a reasoned decision-making process, based on available information and experience").

The policy limits eligibility for such a small number of positions (six out of forty-one) that it imposes such a de minimus restriction on the male ACOs' employment opportunities that it is unnecessary to decide whether gender is a BFOQ for the few positions affected. See e.g. Tharp v. Iowa Dep't of Corrections, 68 F.3d 223, 226 (8th Cir.1995)(en banc), cert. denied 517 U.S. 1135, 116 S.Ct. 1420, 134 L.Ed.2d 545 (1996)(exclusion of male officers from female-only shifts constituted such a "minimal intrusion" on their employment that the court need not reach the BFOQ issue to uphold the policy). In such circumstances, "[t]he conflict between the right of one sex not to be discriminated against in job opportunities and the other to maintain some level of privacy has normally been resolved by attempting to accommodate both interests through adjustments in scheduling and job responsibilities for the guards." Jordan v. Gardner, 986 F.2d 1521, 1527 (9th Cir.1993) (en banc) (internal quotation and citation omitted). The male ACOs have not suffered any tangible job detriment beyond a reduced ability to select their preferred watches.

II.

Assuming arguendo that plaintiffs raise a colorable Title VII claim, however, we conclude that gender constitutes a BFOQ for the six posts at issue here. The plaintiffs argue that the BFOQ exception does not apply in cases involving discrimination in pay, but this case involves disparate treatment in post assignment. See EEOC v. Fremont Christian Sch., 781 F.2d 1362, 1364 (9th Cir.1986)(the BFOQ provision did not apply to the school's discriminatory provision of benefits, namely providing health insurance to heads of households defined as married men and single persons).

The plaintiffs further contend a BFOQ defense cannot be based on the privacy rights of the inmates and they correctly note that inmates' privacy rights are limited. See Somers v. Thurman, 109 F.3d 614, 620 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 143, 139...