Judicial Scrutiny of Sex Discrimination in the Employment Practices

of Criminal Justice Agencies

Gender Theory, Stereotyping, and Legal Liability

Social science research is replete with studies examining the

impact of gender in the workplace. Some analysts focus on the

extent to which capital resources and other extraneous factors

influence gender-based hiring and promotion practices (Petersen,

Saporta & Seidel, 2000; Kay & Hagan, 1998; Kalleberg & Reskin,

1995). Others focus on the organizational structures that

perpetuate and reinforce stereotypes in job allocation (Gorman,

2005; Ridgeway, 1997). On the other hand, other studies refute the

notion that sex has any significant impact in the hiring process and

hiring decisions of management, particularly, in call centers and

retail banks (Petersen, Saporta, & Siedel, 2005; Fernandez,

Castillo, & Moore, 2000; Fernandez & Weinberg, 1997). There is

lack of research, however, on the legal interpretation accorded by

courts to the term sex discrimination and the circumstances under

which sex discrimination in the workplace may be deemed to exist.

Also, there is scant analysis of the legal procedures needed to

establish the existence or non-existence of sex discrimination in

the criminal justice system. The focus of most social science

research has been on the development of theories of why sex

discrimination exists.

Theorists explain that gender stereotypes are triggered by

cultural schemas (Marler & Moen, 2005; Fiske, 1998; Bem, 1993) or

how a particular society and individual members of that society

categorize certain roles (Perry, Davis-Blake, & Kulik, 1994;

Heilman, 1983). In the workplace, stereotypes of what constitutes

male as well as female roles tend to reinforce the employment

practices of a specific organization, particularly, in the areas of

hiring (Petersen, Saporta, & Seidel, 2005), assignment of job

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responsibilities, promotion, discipline and termination (Eliasoph &

Lichterman, 2003; Zuckerman, 1999; Di Maggrio & Powell, 1991).

Although traditional gender stereotypes were particularly

prevalent in the criminal justice system (Brown & Pechman, 1987),

some studies suggest that with the passage of the Civil Rights Act

of 1964 (Stivers, 1993), the onset of community policing with its

emphasis on community service and relations (Skogan, 2004; Greene,

2000) and changes in environmental factors (Zhao, He, & Lovrich,

2006) such as city population (Felkenes, Peretz, & Schroedel, 1993;

Warner, Steel, & Lovrich, 1989) and liberalization of local politics

(Salzstein, 1986), females have gained more acceptance and have

constituted a larger part of the criminal justice workforce. There

are studies contradicting the notion, however, that the Civil Rights

Act of 1964 has had any favorable influence on the employment

policies, practices and customs of criminal justice agencies wherein

stereotypical and gender-biased beliefs and practices of the male-

dominated personnel and management are prevalent (Eschholz & Vaughn,

2001). A typical example of such female stereotyping is reported by

Pogrebin and Poole (1997) who observed that " male officers

frequently referred to female deputy sheriffs as `honey′, " babe′,

and `dear′ and subjected these officers to physical abuse that

included unwelcomed kissing, unwanted groping of breasts, and

unsolicited pinching of buttocks" (Eschholz & Vaughn, 2001, p.

396).

Despite the perception of criminal justice agencies as male-

dominated and gender-biased, there are studies suggesting that Title

VII of the Civil Rights Act of 1964 has had a favorable impact for

females in the workforce composition of criminal justice agencies

(Zhao, He, & Lovrich, 2006). To the extent that it contributed to

the advent of females in the labor market, Title VII plays a

significant role in gender rights movement. The legislative history

of Title VII shows that it was enacted by the 88th Congress due to

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the perceived need to " make persons whole for injuries suffered on

account of unlawful employment discrimination, its primary

objective, like that of any statute meant to influence primary

conduct, is not to provide redress but to avoid harm " (

Faragher v.

City of Boca Raton,

1998, p. 806). As originally drafted by

Congress, Title VII applied only to discriminations based on race,

color, religion or national origin (

Washington v. Gunther

, 1963)

while the Equal Pay Act, enacted earlier, applied to sex-based

discrimination. However, the final version signed by the President

included discriminations based on sex. Title VII was further

amended in 1972 to make it applicable to states and other

governmental employers (

Dothard v. Rawlinson

, 1977) and in 1991 to

incorporate Supreme Court decisions interpreting the Civil Rights

Act of 1866 and 1964 (

Landgraf v. USI Film Products

, 1994).

Extant research shows the need to analyze the role of the

federal courts in promoting diversity in the workplace upon the

passage of Title VII of the Civil Rights Act of 1964. Decisions of

the federal courts validating or invalidating specific employment

practices in the criminal justice system is necessarily important

due to their impact on actual decision-making policies of law-

enforcement and corrections management. The legality of employment

practices can be assured only through compliance with specific

rulings of the federal courts.

Judicial Standard for Gender Based Discrimination

The United States Supreme Court (" S upreme Court " ) , in a line

of decisions has held that under the Equal Protection Clause of the

Federal Constitution, gender or sex-based classifications initiated

by government are subject to intermediate scrutiny or a heightened

standard of review. In cases where the plaintiff brings suit

against the government, the government defendant must show that:

" t he challenged classification serves important governmental

objectives, and (2) discriminatory means employed are substantially

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related to achievement of those objectives " (

Tuan Anh Nguyen v.

INS,

2001, p. 2060;

United States v. Virginia,

1996, p. 532;

Mississippi Univ. for Women v. Hogan,

1982, p.724;

Wengler v.

Druggists Mut. Ins. Co.,

1980, p. 150;

Weinberger v. Weisenfeld

,

1975, p.636). This intermediate or quasi-suspect standard of review

is in contrast to both the strict scrutiny test and the rational

basis test employed by the Supreme Court in other cases of disparate

treatment initiated by government.

Under the rational basis test, government-initiated or

government-sponsored classifications based on age, property or other

non-suspect or non-fundamental rights are presumed valid under the

U.S. Constitution′s Equal Protection Clause unless the plaintiff

proves that such classifications are not rationally related to a

legitimate government interest (Bhagwat, 1997;

Romer v. Evans,

1996). On the other hand, under the strict scrutiny test, government

classifications violating fundamental rights such as the right to

interstate travel, First Amendment freedom of speech and religious

rights, right to privacy, and the right to vote are presumed invalid

unless the government defendant proves that such action is necessary

for a compelling government interest (

Adarand Constructors v. Pena

,

1995;

Pacific Gas & Electric Co. v. Public Utilities Com.

, 1986).

In contrast, actions based on Title VII of the 1964 Civil

Rights Act impose on the plaintiff the burden of proving, by a

preponderance of evidence, intentional discrimination by the private

employer. The courts have used two theories for proving sex

discrimination claims: " d isparate treatment " and " disparate

impact " (Schlei & Grossman, 1983, at 1286-90).

In disparate treatment cases, the procedure for bringing a sex

discrimination claim under Title VII may be summarized as follows

(See Figure 1):

First,

the plaintiff must establish a presumption or

prima facie

case of intentional discrimination by showing the

following:

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(1) she is a member of a protected class; (2) she was qualified

for the position she sought; (3) she suffered an adverse

employment action; and, (4) others similarly situated but

outside the protected class were treated more favorably.

(

Alvarado v. Texas Rangers,

2007, p. 611;

Willis v. Coca Cola

Enters., Inc.,

2006, p. 420;

Ptasnik v. City of Peoria,

2004,

p. 907;

Urbano v. Cont′l. Airlines, Inc.

1998, p. 206;

Bouman

v. Sherman Block,

1991, p. 1223)

Second,

the employer then has the burden of proving a " legitimate,

non-discriminatory reason" for the action (

Reeves v. Sanderson

Plumbing Prods., Inc.,

2000, p. 142;

Arway v. Norwalk Department of

Police Service,

1997, p. 5;

Bouman v. Sherman Block,

1991, p. 1223;

Texas Dept. of Community Affairs v. Burdine,

1981, pp. 254-256).

Third,

if the employer is able to satisfy his/her burden, the

plaintiff′s

prima facie

case is rebutted, and the plaintiff must

show to prevail that either: " (1) the employer′s proffered reason

is not true but is instead a pretext for discrimination; or (2) that

the employer′s reason, while true, is not the only reason for its

conduct, and another `motivating factor′ is the plaintiff′s

protected characteristic " (

Rachid v. Jack in the Box, Inc.

, 2004,

p. 308;

Gu and Santoro v. Boston Police Department,

2002, p. 11;

Richmond v. Johnson,

1997, p. 4;

Bouman v. Sherman Block,

1991, p.

1223).

ADVERSE
EMPLOYMENT
ACTION

SUBSTANTIAL

DISTINCTIONS

TOTALITY OF

CIRCUMSTANCES

Figure 1- Disparate Treatment Sex Discrimination

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Variations within the U.S. Courts of Appeals on Gender-Based

Discrimination

According to both the Sixth and Seventh Circuit Court of

Appeals, a plaintiff can show that the employer′s reason is mere

pretext by showing any of the following:

the proffered reason (1) has no basis in fact, (2) did not

actually motivate the defendant′s challenged conduct, or (3)

was insufficient to warrant the challenged conduct If a

plaintiff can show that the defendant′s proffered, non-

discriminatory reason is pretextual, the trier of fact may

infer discrimination Nevertheless, the ultimate burden of

proof to show discrimination remains on the plaintiff at all

times. (

Tysinger v. Police Department of the City of

Zanesville,

2006, p. 576;

James v. Sheanan,

1998, p. 1007)

In the Fifth Circuit and the Ninth Circuit Court of Appeals,

the discriminatory motive must be a " significant factor " for the

employment decision (

Walsdorf v. Board of Commissioners for the East

Jefferson Levee District,

1988, p. 1052, footnote 1). On the other

hand, in the First, Third, Sixth, and Seventh Circuits, the

plaintiff must show that " h e or she would have received the job

absent the discriminatory motive " (

Walsdorf v. Board of

Commissioners for the East Jefferson Levee District,

1988, p. 1052,

footnote 1), but in the Eight Circuit, the employer may be made

liable upon mere proof that " an unlawful motive played some part in

the employment decision " (

Bibbs v. Block,

1985, p.1323).

On the other hand, disparate impact cases require a different

judicial analysis (See Figure 2):

First,

the plaintiff must show a

" s ubstantial adverse impact on a protected class" (

Kent County

Sheriff′s Association v. County of Kent,

1987, p. 1492).

Second,

the employer must prove a business necessity for the employment

decision or practice, such as job-relatedness.

Third,

the plaintiff

must then prove that there are other feasible alternatives with less

adverse impact.

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The Sixth Circuit Court of Appeals explained the difference

between disparate treatment and disparate impact cases as follows:

When proceeding under a disparate treatment theory, the case

usually focuses on an individual, `and the focus of the contest

is on the employer′s motivation for the different action

taken, with the plaintiff attempting to prove intentional bias

and employer contending that its actions were based on a

legitimate, nondiscriminatory reason′ (citations omitted). In

adverse impact (or disparate impact) cases, there is `an attack

on a specific [facially neutral] employment practice, such as a

written scored test, or a specific objective requirement, such

as a high school diploma requirement or a height and weight

requirement′. (

Kent County Sheriff′s Association v. County of

Kent,

1987, p. 1492)

Although private employers may rebut a prima facie case of

discrimination under Title VII through proof of a legitimate, non-

discriminatory reason, public employers may in fact be subjected to

more stringent requirements. In order to rebut the presumption of

discrimination, public employers, such as the state and federal

criminal justice agencies may be required to show that such

classifications are substantially related to an important government

interest. Analysis of several decided cases show that some U.S.

Circuit Courts of Appeals have applied the standards used under the

Equal Protection Clause to Title VII actions. Rather than

automatically applying the Supreme Court′s intermediate or quasi-

suspect standard of review, however, District and Circuit Court

decisions on the rebuttal proof required from public employers have

varied across jurisdictions, some applying the rational basis test

while others applying the strict scrutiny test.

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NO

NO

Figure 2- Disparate Impact Sex Discrimination

This article analyzes federal court decisions at the Supreme

Court, Circuit, and District Court levels to ascertain what

interests and rights are deemed adequate to rebut the employee′s

prima facie case of discrimination. It also analyzes the standard

of review used by federal courts when examining gender-based

classifications within criminal justice agencies. Employment

practices in the criminal justice system are classified depending on

the stage of the employment process: hiring decisions, terms and

conditions of actual employment (such as pay and benefits, job

assignments, promotions and transfer) and termination of employment.

The article concludes by identifying the circumstances under which

the courts have held that a given employment policy or employee

treatment is or is not deemed sex discrimination.

Sex Discrimination Due to Disparate Impact

Under the disparate impact theory of sex discrimination,

various federal courts have used Title VII to examine the legality

of employment practices by criminal justice agencies. The legal

analysis centers on whether the burden shifting procedures have been

met in cases involving job exclusion and job limitation policies,

minimum height and weight requirements, strength and physical

fitness tests, oral interviews, written examinations, educational

requirements, and grooming policies. Thus, the plaintiffs in these

cases were first required to prove disparate impact through

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